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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Thompson v James & Anor [2013] EWHC 515 (QB) (15 March 2013) URL: http://www.bailii.org/ew/cases/EWHC/QB/2013/515.html Cite as: [2013] EWHC 515 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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JACQUELINE THOMPSON |
Claimant and Part 20 Defendant |
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- and - |
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MARK JAMES |
First Defendant and Part 20 Claimant |
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CARMARTHENSHIRE COUNTY COUNCIL |
Second Defendant |
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Mr Adam Speker (instructed by Slater & Gordon ) for the Defendant
Hearing dates: 13, 14, 15, 18, 19, 20 February 2013
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Crown Copyright ©
Mr Justice Tugendhat :
"Initially it was out of a sense of frustration and injustice over both the planning system in Carmarthenshire as well as the circumstances around the libel case and the subsequent changes to the county's constitution".
"It is not my evidence that I believed they did [ie that the Council funded Mr Bowen's action]. I don't know but I'm prepared to give the Council the benefit of the doubt".
"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…"
EVENTS BEFORE 28 JULY 2011
"Mr Thompson believes that his application has not been dealt with fairly. He went on to state that this application (and a previous application – E/6601- which was refused during April 2004) was being decided upon by personality/family name rather than the merits of the application submitted. Mr Thompson stated that he lives several miles away from the shed where he holds his machinery and stock, also stated that he has full support from his community for this planning application (including the local community council).
Two names that came up regularly during that conversation were Kevin Phillips and Mr Thompson's Councillor Tom Theophilus. Mr Thompson also stated that Kevin and Cllr Theophilus were able to make decisions on planning applications on their own.
According to Mr Thompson, he has been speaking to Kevin Phillips on a regular basis; and, according to Mr Thompson, Kevin has already informed him that the current application will be recommended for refusal.
Mr Thompson has also been told by Community Council Members, that Cllr Theophilus made some comments at a recent meeting, which are:
'Mr Thompson's brother, (Mr K E Thompson) should not have been granted planning permission for his house, which had been built and is more than 15 years old;
Mr Thompson would not be granted planning permission on any condition for applications submitted'.
According to Mr Thompson, four members of the Community Council heard the comments made by Cllr Theophilus, of which two are willing to state that this was said.
As an example of another similar application, Mr Thompson produced a copy of application number E/ 09567 that had been granted planning consent within 6 weeks of submission. What both Mr Thompsons' wanted was to meet with Eifion as soon as possible, to be given a clear reason as to why this current application is going to be refused once again".
"He was still very angry about the planning being refused and stated that he has done everything he can within the law to oppose the decision… but is getting nowhere. He initially continued to say that he will visit [Mr Bowen] at his home but later stated that he would not do this, after the implications of his actions and the likely effect on [there were then about three minutes of the conversation redacted out]."
"It is common practice for constituents to 'drop in' on councillors and to discuss issues and Kerry believed the same applied to Mr Bowen. After Kerry left I became concerned that his actions would probably be misunderstood and I called the police to intercept him. In fact, Kerry had changed his mind anyway and had returned home about 10 minutes later without going to Mr Bowen's home and without meeting the police. Later on that evening the police visited Kerry at home to suggest that actions such as this were inappropriate and to advise him to put any concerns in writing. Nothing actually happened and, if I hadn't called the police, the Council would never have known that Kerry had set off to see Mr Bowen".
"To all, re: PLANNING APPLICATIONS EDWARD THOMPSON HAFOD BRIDGE LLANWRDA.
I am writing this email calling for the resignation of Eifion Bowen (Head of Planning) and Councillor Tom Theophilus on the grounds of professional misconduct and gross incompetence. Both members have severely gone against the council protocol and made grave mistakes. Mr Bowen lied to a planning committee meeting, asked Mr E Thompson if he would consider a caravan on his land, suggested he re-applied, promised him full support then promptly refused it. Mr Bowen also 'mistakenly' sent a letter to Mr Adam Price MP confirming that planning permission had been granted in full for a bungalow (how many other mistakes have been made by Mr Bowen). Tom Theophilus spoke out at a local community meeting slandering Mr E Thompson which is against council protocol, therefore he was unable to speak at committee level.
I would like to know if it is legal for local councillors to tip building material and waste on their land as I have proof that Mr Theophilus has done this in the past.
I am also sending a copy of this e-mail to the Carmarthen Journal".
"I regret that you feel that I have in some way let you down. You will recall that I have met you on a number of occasions to discuss the way forward following the refusal of Planning permission for a dwelling. I did suggest that an application for a caravan would be an alternative as detailed in the Welsh Assembly advice, or alternatively you could have appealed. The difficulty is there are very few applications for forestry workers and the main objection you have is the requirement to prove the need to live at that spot.
During yesterday's discussion I agreed to raise the issue of being made homeless with the housing Division, this I have done.
I also agreed to take your application to the Planning Committee so your personal circumstances can be highlighted, however, I am now reluctant to do this given your view on my attempts to take matters forward. I will now release this refusal under delegated powers. I was also extremely concerned last night when contacted by the police that you were on your way to see me at my home. I was not at home and it did however cause my young daughter some worry, under such circumstances I will be contacting the police today expressing concern".
"I will also be speaking direct to the Chief Superintendant of Police in Carmarthenshire about this matter as the Council will not accept threats against its staff or Councillors. We will also be taking legal advice regarding this matter".
"I must respond to your email regarding threats towards councillors and council members. I must emphasise that I have never threatened Eifion Bowen or his family or ever been to his house. This is a very serious allegation against me. I therefore must point out the fact that Mr Bowen has in fact sent people to my home and threatened my wife with eviction. This happened about 18 years ago whilst she was about 9 months pregnant and with two young children. I did however, find Mr Bowen and complained about the matter in no uncertain terms.
I therefore accuse Mr Bowen of holding a personal grudge against myself and my family. He has done so ever since committee overturned his decision for refusal of my planning application for Cae Brwyn [that is the home of Mrs Thompson and her husband]. This is accurate as it has been mentioned numerous times during my brother's recent applications. We have also been told by members of staff, namely Rhys Davies in corporate planning that they would like to give my brother planning but have been made scapegoats and have had to block the application.
I would like you to take an interest in this matter objectively. Please could you find the time to familiarise yourself with my brothers planning application or arrange for an appointment to speak to us as obviously this matter has to be taken further. We have tried in the past but got nowhere.
I am also sending a copy of a letter from Tom Theophilus which is proof of the inaccuracy and professional misconduct that we have put up with for far too long.
I have sent a copy of this letter to the police and asked them to keep it on file for future reference".
"I refer to your letter of 6 March 2006 delivered by hand to my office. Whilst I am happy to investigate any complaint you have against any decision, action or inaction by this Council, I am not prepared to accept any form of intimidation or harassment of Officers or Councillors.
The Council takes a very serious view of such incidents and will take any necessary measures with the Police and others to deal with such matters.
The information I have to hand indicated two matters of concern. Firstly, that Messrs EJ Thompson and KE Thompson came to 40 Spilman Street and then 3 Spilman Street on 4th November 2005 and refused to leave the office of the Head of Corporate Property, necessitating the Police to be called to remove you.
Secondly, on Tuesday 28th February the Police received a telephone call from Mrs Thompson warning that Mr K E Thompson was going to Mr Eifion Bowen's home. I understand from speaking to the Police that they spoke to Mr K E Thompson on Wednesday, 1st March about this matter.
Both of these actions are viewed as completely unacceptable and if this pattern continues, the Council will have no option but to take its own legal action and also seek further action from the Police, where appropriate.
May I respectfully suggest that in future, to avoid unnecessary confrontation, you place all your concerns in writing. I am more than happy for such correspondence to be sent to my office where we will deal with it or ensure it is forwarded to the appropriate department for its response.
With regard to the current application, I have looked into the planning history of this site and am aware that two previous applications, reference E/06601 and E/09739 have been refused, on the basis that they did not accord with the relevant planning policies in relation to development in the countryside, and the land was outside of defined village development limits. Moreover, it was not considered, given the information provided regarding the business, that there was sufficient functional need to reside at the site. I note that your brother has not availed himself of his right to appeal against these decisions.
You also allege that the planning permission for your dwelling, granted against the officer's recommendation by the former Dinefwr Borough Council in 1988, has been the source of a 'personal grudge' against you and your family on the part of Mr Eifion Bowen. There is absolutely no evidence to support this serious accusation. While there is indeed a reference to this decision in the case officer's report for application E/09739, this [is] in the relevant context of justification for the proposed development, and I cannot agree that this is inappropriate.
The permission granted for your home did not set any precedent with respect to any subsequent applications in this immediate locality, as each planning application is considered on its own merits. I note that full planning permission was granted for an agricultural implement shed in January, 2000.
You also state that Mr Bowen 'sent people to my home and threatened my wife with eviction'. I have examined the basis for this comment and have ascertained that what in fact occurred was that the former Dinefwr Borough Council's Planning Enforcement Officer visited the site in 1988 as you had placed a caravan there without planning permission. The officer was merely carrying out his duties, and this inspection led to your submission of a planning application for a dwelling, subsequently approved as referred to above.
Referring to the comments you attribute to Mr Rhys Davies of our Corporate Property Division. It is the professional opinion of our officers in that division that planning consent should not be granted as the relevant Welsh Assembly government guidelines are not met.
The Head of Corporate Property, who is consulted on applications for agricultural forestry workers dwellings, did not in fact support the last application on the basis of Mr Davies' site visit and careful consideration of the merits of the proposal. This is discussed in greater detail in the Case Officer's report, considered by Planning Committee on 15th September, 2005.
As you will be aware from discussions with Mr Bowen, the current application, reference E/11853 for a temporary mobile home has been decided by delegated powers and a decision notice is in the process of being sent to your brother. Having discussed this matter with Mr Bowen, I am satisfied that any advice imparted before this application was submitted was not misleading and would refer to Mr Bowen's own comments on this issue on 1st March 2006".
"We have a customer Mr Thomson in the office he is refusing to leave, being verbally aggressive, refusing to leave unless officers attend".
"One male left premises of his own free will. He was very unhappy about planning problems with the Council".
"Wanted to make a statement about this but was advised that planning problems are a civil matter which should be addressed through a solicitor".
'with my amateur knowledge [there] did not appear to be sufficient justification. … By this time, Eddie had been refused four times. The different treatment of these apparently similar applications contributed to our confusion and frustration, and our belief that we were being treated differently'.
"I have had a visit this morning by Mr Thompson and his wife who refused to leave unless I called the Police. Following lengthy 'discussion' that essentially comprised of personal criticism of Eifion and of the planning process I was left with no alternative other than to call the Police who have arrested him for a breach of the peace. Unfortunately, this is exactly what Mr Thompson wanted as his particularly aim was to have the opportunity to provide the Police with a statement of what he perceives to be fraud within the Council. The Police officers informed him that being arrested does not necessarily mean that he shall have the opportunity to provide any statement.
The Police enquired whether I wish to make a complaint, but although he was verbally aggressive, the content was not directed at me. It was therefore concluded that as the incident was recorded with and incident number resulting from the 999 call there was no need for any further statement. The issue does highlight the lack of security at our Reception desk…"
"Further to our correspondence dated 8th March 2006 we wish to complain yet again in the strongest possible terms regarding the unfair, unprofessional treatment and decisions to refuse Planning permission at the above site by Carmarthenshire County Council Planning Department.
Apart from previously mentioned matters regarding comments made by the Head of Planning, Mr Eifion Bowen, Asset Management and Councillor T Theophilus over the past three years, which we still maintain had an adverse effect on the above applications, we must now insist that the above applications are re-assessed especially in the light of several successful applications for agricultural dwellings in the area that have come to my notice. I quote three examples:
1. E/095.. … This application was passed by a delegated decision within 6 weeks of first applying. … More disturbingly we know that this family and Councillor Theophilus are very well acquainted. …
Whatever the apparent legitimacy or circumstances of surrounding these applications, the catalogue of comments and 'errors' made by the Planning department towards us, have made us now certain that our applications have been unfairly, unduly and personally blocked. Despite everything we have submitted and argued we have drawn a complete blank from every quarter of the Council. I once again await your reply concerning these urgent matters. If you decline to recommend re-assessment of Planning Application E/0601, E/09739 and E/11853 we shall have no further option than to take further action.
I am sending copies of this letter to Mr Eifion Bowen, Mr J Fearn and Mr G Noakes."
"To all interested parties,
We write this email calling for the resignation of Mr Eifion Bowen, Head of Planning… who, along with the collusion of the Chief Executive Mark James and Head of Corporate Property Jonathan Fearn has repeatedly abused his position. The entire Planning department, councillors and officers alike need to be urgently and thoroughly investigated. Eifion Bowen and his colleagues have been granting a catalogue of favours. Despite recent, contentious high profile decisions in Carmarthenshire all criticism has been rubbished. We are not aggrieved applicants but concerned residents of the County who are concerned that what initially appeared to be gross incompetance is, on closer examination, corruption".
"… it is untrue to state that you are not aggrieved applicants. It is the refusal of three planning applications by this authority and the alleged 'personal grudge' which you claim dates back to Mr Bowen's actions as a planning officer for Dinefwr Borough Council in 1988, that are at the heart of this matter and have been the basis of numerous complaints, questioning the integrity of the Council's officers. These accusations have been refuted on numerous occasions previously and the issues raised have been responded to in full and in writing. The last such occasions being 8th March 2006 and 5th October respectively, when I responded to you in full.
You are fully aware of the incidents in November of last year and March of this year when the Police had to be called, firstly to remove Messrs EJ and KE Thompson from our buildingS after they refused to leave and on the second occasion when Mr KE Thompson threatened to go round to Mr Bowen's house when his daughter was alone and you rang the Police to warn them. I respectfully asked that any further communications be in writing to me and undertook to investigate your complaint and allegations. This I did in responding in full to you on 8 March. There was no evidence to support any of your contentions and proper procedure had been followed in dealing with your various applications for residential development outside defined limits at Hafod Bridge… . These applications were refused after going through the proper planning process.
The principle of a dwelling on this site was tested further when you lodged an appeal to the Welsh Assembly Government in respect of application E/09739. Significantly, this appeal was dismissed by the independent Planning Inspector on 18 August 2006. You persist with unfounded allegations against the authority and its planning and property officers.
Whilst the Council is always ready to investigate fully any complaints and allegations of impropriety, as we have done in your case, we are not prepared to accept any form of intimidation and harassment of our staff, which unfortunately you have resorted to.
It is now of grave concern that serious unfounded allegations have been widely circulated without any supporting evidence whatsoever. I must inform you that this is a very serious matter of defamation and unless you can provide substantive evidence to the Council, we will have no option but to place the matter in hands of our solicitors.
Given the previous threats and actions of intimidation, I have also referred this matter to the Police".
"We write this letter calling for the dismissal of Mr Eifion Bowen as Head of Planning at Carmarthenshire County Council. We strongly suspect that Mr Bowen has, with the collusion of the Chief Executive, Mr Mark James and Mr Jonathan Fearn, Head of Corporate Property repeatedly acted improperly regarding certain planning applications.
Apart from several recent high profile applications where there has been open allegations of impropriety, our own experiences with Mr E Bowen, Corporate Property and our local councillor, Mr Theophilus have proved to us that this department is a law unto itself and apparently beyond reproach, officers and councillors alike.
Whilst we appreciate the contentiousness of many planning issues, we are sure that the people of Carmarthenshire would be far better served by a thorough and urgent investigation into corruption within the planning department, the removal of Mr Bowen and the establishment of a fair and democratic system".
"We didn't feel our complaints had been properly looked into. That is the basis for [the e-mail dated 13 October 2006]. In hindsight it is probably a poor choice of words".
"More than £66,000 of Carmarthen taxpayers' cash has been spent on the county council chairman's chauffeur driven car in the past two years.
The figure of £66,215.91 takes into account the cost of leasing and insuring the Jaguar XJ8, petrol bills for the 4.2 litre engine, and an average of the driver's salary.
The council has defended the expense, saying the chauffeur-driven Jaguar is practical, efficient, professional and cost effective…
In 2004/5 chairman Gerald Meyler attended 246 functions.
The total cost of the car for that period was around £33,514.45 making the average cost of each engagement £136.24.
In 2005/6 chairman Jim Jones attended 366 functions, but the driver's salary was reduced making the total cost of the car around £32,701.46. Travel bills for each engagement for that period averaged out at £89.35. A list of 25 engagements, between 25 May 2005 and April 2006, included 5 trips to Cardiff and 2 visits to … Llanelli.
The council leader, chief executive, and executive board members are also driven to meetings or functions in the Jaguar XJ8".
"as we, the Defendants alleged suspicions of corruption within the Planning Department [emphasis original] and not towards the Claimant, we believe that his reputation and feelings were unaffected by the letter".
"in the premises the alleged or any defamation reflected upon and was in relation to a matter which was a governmental and/or administrative and/or County Council function in respect of which the Claimant can bring no action"
"Council Indemnity
We are aware that your client's employer has a policy against indemnifying an employee in your client's position. In the ordinary way our clients would object strongly to any breach of this policy. However, in these circumstances, our clients would have to consider their position.
We remind you that we have offered a confidentiality clause as part of any settlement. We are sure our clients would not break such a clause if in fact in your client's case the Council decided to indemnify your client ex post facto. We think there is a prospect of this happening, based on our knowledge of County Hall. We go further, we respectfully suggest that you have a professional duty to explore all avenues that might lead to this case being resolved. You should advise your client to apply for an ex post facto indemnity. Given the involvement of the Chief Executive at the inception of this case, such an application might well succeed these exceptional circumstances."
"We are sure our clients would not break such a clause if in fact in your client's case the Council decided to indemnify your client ex post facto. We think there is a prospect of this happening, based on our knowledge of County Hall."
"2007 Libel Case: Document proving to us that the Head of Planning's libel case against us was unlawfully funded by Carmarthenshire County Council".
"Take notice that an appointment to fix a date for the trial/application has been made for date 5/9/07 at 3:00.
This listing appointment will be heard in WG08 unless we hear to the contrary, or should a party fail to attend the listing appointment, a trial date will be arranged in their absence."
"A copy of the Pre-Trial Checklist (Listing Questionnaire) required pursuant to P 29 of the civil procedure rules [C1/105] will be served on all parties to the action at least 10 weeks prior to the trial date. The Claimants solicitors will be required to pay the £600 trial fee on filing the Pre-Trial Checklist in accordance with Fee 2.2 detailed in the Supreme Court Fees Order."
"(6) Your client is in a position to seek exceptional help from his employers as to his costs, since his employers have a publicly stated policy concerning alleged defamation of Council employees, and the Chief Executive involved himself in this action to a marked degree. …
Finally your client should remember that our clients were and are emotionally and financially hard pressed and that there are limits to their means….
May we turn to case management matters?
Appointment to fix a trial:
As you know an appointment has been made for 3pm on 5 September in the List Office. May we suggest that this appointment should be adjourned or vacated since the parties ought to reach agreement in this case? "
"In the letter we untruly allege that Mr Bowen had carried out his duties corruptly. We said that because of Mr Bowen's improper professional conduct, he should be dismissed.
We are happy to acknowledge that there is no basis for alleging that Mr Bowen had acted corruptly and improperly in carrying out his duties.
We apologise to Mr Bowen for writing and sending the letter. We have agreed not to repeat the allegations and to pay his legal costs to the extent of £7500 of bringing libel proceedings against us".
"In that letter the Defendants alleged that Mr Bowen had carried out his duties corruptly and that because of his improbable professional conduct, he should be dismissed.
The Defendants now accept that the allegations made against Mr Bowen are false, unfounded and should never have published them. The Defendants are here today to apologise to Mr Bowen and to unequivocally retract the allegations. They have written to all the recipients of the letter to apologise for their conduct and retract the false allegations. They also agree to pay Mr Bowen a substantial sum in the form of legal costs and have agreed to undertake not to repeat the allegations made in the letter."
"8. The Minutes … at Item 9 record that the officers of Carmarthenshire County Council will consider assisting defamation actions 'in certain circumstance' …
10. Mr Bowen appears to be free to apply to Carmarthenshire County Council to be reimbursed by Carmarthenshire County Council for his legal costs over £7500".
"I was not aggrieved by the settlement of the libel case as has been argued by the Defendants in this action. We recognised early on that we needed to settle the case and tried to do so offering an apology – before the costs became insupportable. I bear no ill will towards Mr Bowen and have met and spoken to him since the case was settled. For myself, the issues surrounding the planning application and the libel claim have been dealt with years ago – and Mr Bowen was polite to me. I have no desire whatsoever to seek 'revenge'".
"Insofar as it is relevant the application was approved contrary to the Head of Planning's recommendations. The Committee was of the opinion that the development was of a similar size and design to that approved under the previous condition and would be in keeping with the character of the surrounding area. The important point so far as this application is concerned is that the land in question already had the benefit of a valid permission. The Committee had plenary powers in this instance to disagree with the officers views. You are not correct therefore to suggest that the approval was based on any other grounds".
"Please inform me as to whether any, or all of Mr Bowen's legal costs arising from his case brought against [her and her husband] have been paid or ever will be paid, indemnified or reimbursed at a later date by Carmarthenshire County Council or associated bodies".
"We must arrive at the conclusion that, for whatever reason, there's an element of personal animosity against our family".
"4. Mr Bowen has publicly declared that he has financed the action himself. If, as it now appears, he could of been funded by the Council or can be reimbursed by the Council at a later date, it would mean that we have been misled and conducted the case on the assumption that both sides had limited means.
5. Mr Bowen has had his legal expenses received and processed by Carmarthenshire County Council Resources Department. [underlining original]
6. Carmarthenshire County council policy changed from 'not funding' (November 2006 executive board summary 'Provision of Indemnities to Members and Officers' Appendix 1 at para D) to 'funding' (14 September 2007, days after we settled, minutes of the Standards Committee, Item 9), offering assistance to officers making claims for defamation 'in certain circumstances'. Which goes against government guidelines which aims to protect free debate. The County Council seems to have empowered itself to possibly engage in expensive litigation, at council tax payers expense, to stifle strong and robust criticism".
"(i) Mr Bowen's legal expenses have certainly not been paid by the Council.
(ii) I do not know which Government Guidelines you were referring to in this context. Quite frankly, the Council has decided that its officers should not be expected to endure criticism which far from being 'strong and robust' as you claim, is in fact unsupported by evidence and is malicious and directed and calculated to undermine the personal and professional integrity and honesty of the officers concerned. Such action is not in any way intended to undermine the normal democratic process and accountability of individual officers. However, the Council also has a duty to protect staff from harassment and unwarranted criticism".
"(2) Can we rightly assume … that the Council, whilst not an actual party to the action, instigated and maintained it and that the Council as a whole feel justified in this action?
(3) We assert that these issues are very relevant to planning matters. May I remind you that in the interests of transparency and democracy it is not advisable for local government departments to silence critics with the threat of financial ruin.
i) We now have compelling evidence that Council resources were used to instigate and maintain the legal action.
ii) We assume that you would have been aware of the government guidelines referred to, which is the Local Authorities Indemnities for Members and Officers (Wales) Order 2006 ['the 2006 Order]".
"6(3) No indemnity may be provided under this Order in relation to the making by a member or officer indemnified of any claim in relation to an alleged defamation of that member or officer but may be provided in relation to the defence by that member or officer of any allegation of defamation made against him".
"17. The [2006] Order expressly prohibits relevant authorities from meeting the cost of members and officers taking legal action for slander or libel, either directly or through insurance. The Assembly Government does not believe that individuals should be funded at public expense to bring proceedings against a third party. To do so could stifle legitimate public debate. Nonetheless authorities will be able to provide indemnities to individuals against the costs of defending such actions (where the action relates to their official functions).
18. The Judgment in R v. Bedford Borough Council, ex parte Comninos (2003) indicated that authorities may already have the power in some cases to make a decision to fund libel proceedings brought by its officers and to pay the costs of such an action by virtue of Section 111(1) at the Local Government Act 1992. Any such power is not removed by this Order…
19. Authorities will clearly have to consider their position carefully before using this power and note the reminder given in the case as to the availability of judicial review as a remedy in cases of irrational or otherwise improper decisions. This will include any use of such a power purely to circumvent the basic rule that an authority cannot protect itself by bringing defamation proceedings".
"are not used again to maintain and support private libel lawsuits brought by officers against members of the public either directly or indirectly… we honestly believe that these resources have been used to circumvent the [rule in Derbyshire County Council v. Times Newspapers] that a Council cannot sue for libel".
"The applicant was born in one of these cottages at Hafod Villa a name synonymous to the locality. The Thompsons are a hard working family with restricted means fully employed in agriculture and forestry work, but with only moderate wage. Their only hope to achieve one's ambition to own their own home, is to have their application approved, and thus ensure continuation of this close family to live in an area which means so much to them".
"Nonetheless, in the interests of transparency, I can confirm that Mr Bowen has not and will not receive any payment, reimbursement or indemnification in respect of his legal costs."
"You intimate in your letter that the Council has provided financial assistance [for Mr Bowen's defamation action]. This is incorrect. The officer concerned took out a private action against you for defaming him…
It is a little misleading for you to have written in this form to County Councillors, given that your solicitors asked if the County Council would meet the legal costs of the officer concerned to avoid you as their clients having to pay their bill. It would appear therefore that you were actually asking the County Council to expend resources to save you having to meet those costs. You now appear to be taking an entirely different line in this letter you have written. Somewhat disingenuously. When the officer approached us about paying his costs we advised him we were unable to do so, and presumably his solicitors would have notified yours of that fact and they in turn you. This is why I find the letter to the County Councillors so surprising. I will be notifying them of the true position…"
"Perhaps the court bailiff summed it up when he served the writ: upon asking him what it was, his reply to us was 'it was something from the Council'…
… the suggestion that Mr Bowen applied for assistance from the Council was based upon our knowledge of County Hall, the involvement of the Chief Executive at the inception of the case and our reasoned assumption that financial assistance was already indirectly available to Mr Bowen, given his lack of concern over the potential high cost risk to himself, amongst other reasons…".
"We believe that the case was instigated and maintained by the council and not by Mr Bowen in a personal capacity as we and the court have been told. … As libel cases are notoriously expensive we feel that the Audit Commission should investigate the Council's action in this whole matter."
"The ability, to engage in robust criticism is essential. Sometimes this will involve the production of material that is inaccurate and hurtful. The Carmarthenshire couple who were sued by the County Council's Director of Planning accepted that allegations that they made were inaccurate and unfounded and made an apology in court. …"
"The facts of the matter involving Mr and Mrs Thompson were that the officer who was defamed took a private court action at his own expense against them.
Prior to the matter going to court Mr and Mrs Thompson retracted the statement saying there was no basis for an allegation and agreed to contribute towards costs incurred by the officer. It was their solicitors' who asked the Council to pay those costs and the Council refused."
"Editors note: we accept the facts as stated by the Council and thank them for clarifying the matter".
"I have already made the Council's position very clear to you, but I repeat that the Council has not provided any financial assistance to Mr Bowen. Your various allegations about the financial involvement of the Council in this matter are simply without any foundation whatsoever".
"1. With regards to the £7500 payable towards Mr Bowen's costs; we shall be unable to meet the agreed deadline to pay this sum due to poor financial circumstances.
2. We suggest that Mr Bowen waives the £7500 which will bring a full and final settlement of the matter. This request is made on the clear understanding that, if accepted, neither he nor any associate bodies will take any other action to enforce or pursue this debt in anyway whatsoever and that we will be released from any liability.
3. If Mr Bowen does not agree to waive the £7500 our family home will be under threat. In that case we shall have no other option than to use the conclusive evidence we had amassed during the last year to challenge the whole issue of costs and to prove the court has been misled by the involvement of Carmarthenshire County Council in this case.
4. If we do not receive a satisfactory reply within 14 days we shall assume that Mr Bowen fully agrees to waive the £7500".
"Mr Thompson you have heard what has been said and you have seen the letters. The reality is – and the Head of Administration and Law says in terms – 'no we're not funding'. True it is there is no explanation for why they got the letter, but I suspect it is just because it is part of the administration, but it does not demonstrate that they were paying for the litigation. It seems to me that there is an explanation given that they did not fund the litigation. … It was not a request for money, was it? It is just a listing. … 'claimants solicitors be required to pay the £600 trial fee'. Yes. That is all it says. But, there is the trial fee. It is not a request from the claimant's solicitors to the Council … The court sent it to solicitors… they sent it to the solicitors in the normal way, and it looks as though the solicitors sent it on to the County Council. As you rightly say, that is --- the difficulty is this, Mr Thompson: I understand you are concerned about the letter and there is a mystery. One thing I could do is to adjourn this application until later in the week and order that Mr Thomas, or somebody on behalf of the Council, comes and gives evidence on oath that they did not fund this litigation. But, if I do that, and if I conclude at the end of that exercise that he is telling the truth, you will have an even bigger costs bill to pay than the £7,500 that you have got anyway."
"3… The matter upon which most reliance is placed by Mr and Mrs Thompson is a letter from the Court Service to the parties at the time of the arranging of an appointment to fix the date for trial. That is a document dated 31 July 2007 addressed to both parties. It referred in terms, in the normal way, to the fact that the Claimant's solicitors would be required to pay the £600 trial fee on filing the pre-trial checklist. That document appears to have been sent by the Claimant's solicitors … to Carmarthenshire County Council. …
4. Mr Thompson, who presented this application on behalf of himself and his wife, made the point which seemed to me to have considerable force, that it is difficult to see why that document would go to the Resources Department of the Council in circumstances where the County Council was not paying for the litigation – or at least funding the litigation.
5. Notwithstanding the existence of that document, … counsel who appears on behalf of Mr Bowen is unable to provide an explanation as to why the document had been sent to the County Council and why it had on it the two stamps that I have referred to.
6. I have to say that if that were the only material before the court it seems to me that it would be most satisfactory, and I am not very happy that the County Council do not appear to take the matter sufficiently seriously to have provided a proper explanation through Mr Bowen as to exactly what was going on in that document or why it was that the County Council have received it, let alone why the Resources Department – which, as Mr Thompson rightly points out, is the department which usually funds the costs of matters – should have received the document at all. However, that is not the only document that is before the court. For present purposes, far more important are two letters emanating from Mr Thomas, Head of Administration and Law at the County Council – one dated 21 May 2008 addressed to Mr and Mrs Thompson, which refers in terms to the issue as to whether or not the Council was funding the litigation… [the Judge then quotes from that letter and the letter of 18 September the previous Thursday to the same effect].
7. In the light of those two categorical statements by the Head of Administration and Law of Carmarthenshire County Council, it seems to me that it would not be appropriate for the court to conclude that Mr Thomas was not telling the truth.
8. I was minded at one point to suggest that a possible way out of what obviously concerns Mr and Mrs Thompson – a concern which I can fully understand - would be that I would require Mr Lyn Thomas to come and actually give evidence before the court later this week on oath to confirm what he says in the text of this letter. However, on reflection, it seemed to me that that would only lead to the incurring of further costs which could not be to the advantage of Mr and Mrs Thompson since, on any view, they would end up picking up the costs bill if the court were to conclude that Mr Thomas was indeed telling the truth.
9. In those circumstances I have concluded that on the balance of probabilities, Mr Thomas, on behalf of the Council is telling the truth and therefore the court should conclude that this litigation was not funded by the county council. The application is therefore dismissed.
"The High Court Judge in London last Monday, was very concerned as to why and how this document had got there and the possible serious implications. Carmarthenshire County Council were unable to offer any explanation whatsoever".
"… we feel that our last letter did not fully explain the seriousness of what happened at the high court last month.
On the strength of the document, we went back to court alleging that Mr Bowen had committed perjury. As the evidence also related to Carmarthenshire County Council the allegations also extended to the Chief Executive, Mark James; the Head of Administration and Law, Mr Lyn Thomas and the Director of Resources.
The significance and seriousness of the stamped document is that, as the Judge said, it was sent from the Court; to Mr Bowen's solicitors; then to the Chief Executive, Mark James, then to the Resources Department…"
"A number of Councillors have expressed considerable concern to the Chief Executive about what they see as a malicious campaign on your part to distort the truth and to try to damage both the Council and its officers…
… Sadly your last two letters indicate that not only have you failed to learn from this experience [Mr Bowen's libel action], but you are now extending your defamatory remarks to other officers of the Council, and arguably are also calling into question yet again the integrity of the officer who took out the defamation action against you. You are again doing so to a wider audience so as to maximise the harm which you are trying to cause.
It has been explained to you repeatedly that the Council had no lawful authority to fund Mr Bowen's defamation action against you, and that as a matter of fact it did not do so. You even made it an issue with the court. An assurance was given to the court by Mr Bowen's solicitors that all his costs were paid by him personally (with evidence able to support this if required), and a further assurance by the Council that they had not been paid by them. These assurances have clearly been accepted by the Court.
I do really sympathise with the predicament which you now find yourselves but it is absolutely astonishing you are choosing to further your campaign in this way…. You are now even questioning the decision of the court.
With your correspondence you have enclosed a copy of a court notice dated 31 July 2007… I am passing a copy of this letter to the Audit Commission so they can verify the position should they feel it necessary to do so.
I should also mention for what it is worth that I have been unable to trace a copy of this notice in the Council files, and Mr Bowen and his solicitors that they have not sent the notice to the Council. The only copy which I have seen is the one provided by you.
I strongly advise you to refrain from continuing this campaign of defamatory accusations. My colleagues and I have no wish to worsen the predicament in which you already find yourselves, but you are putting yourselves at risk of further legal challenge and it is imperative that you should seek advice from solicitors qualified to advise on the law of defamation not only about your letters and this response, but also about the statements which you are making about the recent court hearing. The allegations which you are making about the officers you have named are pure fantasy, and I am sure that if further legal action should be taken against you, the court would hold that they are damaging not only to the officers concerned, but also to public confidence in the Council as a democratic body".
"There is something wrong with the planning process in Carmarthenshire. Despite 5 years of applications and appeals and therefore a better understanding of the system, this is still the only conclusion we can reach. We are not 'aggrieved applicants', in fact we have been representing other family members in their quest for a home. Over the years we have also looked at the wider picture throughout the county and come to the same conclusion, that personal preference and internal politics are used to consider planning matters far more than planning policy resulting in double standards and inconsistency and prejudice. It is the element of discretion used in these decisions which is open to abuse. Planning policy can then be manipulated to either refuse or approve certain applications. We can of course, substantiate our claim. Watch this space."
"At the last hearing in London, as we said, the Judge decided 'on a balance of probabilities' that senior council officials were telling the truth. To us, our evidence was stronger than theirs. To us, the Judge might just as well as flipped a coin. We could not appeal as we couldn't take the risk to our family home. If he had found in our favour we would definitely have would of appealed as the whole integrity of the senior executives would have been brought into question.
It is a question of whether the judge believed us or the council. The Council have often called our integrity into question but what about theirs?
It is of note that the only descriptive entries for Carmarthenshire County Council in Wikipedia concern allegations concerning the planning department and the bribery case involving the Chief Executive and a property developer. Both widely reported in the local press [and she gives the link]. We have observed the Council's dealings… "
"We noticed more spin from the council, this time its recent 'award' from Excellence Wales for 'tackling climate change". What a joke… we just hope the Chief Executive still isn't chauffeured around in that large engined Mercedes (at the cost of £66,000 a year) – surely not!..."
"We have asked twice, and appealed once for documents etc held by Carmarthenshire County Council through the Freedom of Information Act relating to all aspects of the libel case and the change in the constitution. The council says that they have none… it is very disturbing that senior executives of the council apparently have no knowledge of important legal documents relating to High Court Procedures, involving their Head of Planning, which are flitting from the Chief Executive's to the Resources Department… and then to deny involvement. Surely they are not lying are they?
How many other unlawful requests for public funds are passing through the system unnoticed and unrecorded. Perhaps the District Auditor would like to know. The Council shredder must have been working overtime".
"This brings me onto the subject of false apologies and the whole libel circus. What is the value of an apology if it has to be bought and bullied out of someone? It becomes meaningless. Often for libel defendants who try and stand by their statements, this is the only way out. If the claimant is threatening to take the food from their children's mouths or the roof over their heads then an apology and retraction is the only options and you hope to live to fight another day.
Of course, as you can see from this blog, we meant every word of ours".
"Please can you let us know when you are going to be honest about the presence of the stamped document, relating to the libel case, in your office? Clearly you have misled the Council, the Assembly, the High Court and 74 County Councillors. It was agreed in court, by the Head of Planning's barrister that the document was sent to you. We have the transcript to prove this. It is your fault that this so called private law suit brought on by the Head of Planning has brought the integrity of the Chief Executive's, the Legal and the Resources Departments into question, that the fact is, it has. …"
"An open e-mail to Jane Davidson AM …
… we strongly believe that we have evidence to prove that Carmarthenshire Council Planning Department is systematically abusing, not only the planning process, but also their powerful positions. Policy is often being manipulated to suit the applicant…"
"We conclude that the Council are not willing to acknowledge that the Head of Planning's legal action against ourselves has compromised his position regarding planning matters… as the Head of Planning now has a financial interest in our property it is clear that his involvement with planning enforcement … is in direct breach of the code".
"… we now refuse to recognise Carmarthenshire as our Local Planning Authority… we inform you that we will be commencing construction of a residential dwelling, at Cae Bryn forthwith. As the Head of Planning, Mr Eifion Bowen now has a financial interest in our property Cae Bryn, we strongly suggest you seek legal advice before responding to this letter.
In the interests of transparency this letter has been placed on our website…"
"Mark James's achievements – an alternative view"
Mark James, Chief Executive Carmarthenshire County Council has been given an honorary fellowship …
Mr James' career has spanned many years, in 1995 he became Chief Executive of Boston Borough Council… his work there saw the Borough become the exemplar of good practice in how to build a stadium, and take all the credit before quietly disappearing before the inevitable audit investigation. Arriving at Carmarthenshire County Council as Chief Executive in 2002 he rapidly got to work on another stadium project, only briefly interrupted by an awkward bribery trial..."
"I have always suspected that certain senior executive officers of Carmarthenshire County Council were able and willing to manipulate the Freedom of Information department. Now it seems that this possibly extend to the Wales Audit Office too. Basically it now seems that the Council have lied through the Freedom of Information and withheld information from the Audit Office."
"When we took the Council to court last year on allegations of perjury (not my word but the word of the other side's barrister) the judge didn't think a Council would lie. Now that we have 100% proof that they do we are considering lodging a late Appeal to see if the judge comes to a different 'balance of probabilities'...it is just a shame we can't rely on taxpayers' money to do it".
"Finally, after nine months, I received the ombudsman decision over my complaint… There we are then. The county councillor clearly has had plenty more experience than myself dealing with the ombudsman, and once again, I suspect the complicity of Carmarthenshire Council's legal team has helped ensure that nothing…. Upsets the planning apple cart or should I call it the 'cash-cow'… this sort of decision makes a mockery not only of the councillors code of conduct but the ombudsman's ability to regulate the code…".
Please explain why the document referred to was stamped by two departments, particularly the Resources Department and provides the names of those who stamped it?
The Council is unable to explain how the document was date stamped in two departments and cannot locate the original document. There is no evidence that the Council has paid the invoice.
There is no evidence that the Council has reimbursed Mr Bowen.
Mr Bowen's solicitors have confirmed that they have not received any payment from the Council for legal services or court fees incurred by Mr Bowen.
Please explain why this document from an apparently private legal case was present in County Hall and why it was sent there by Mr Eifion Bowen's solicitors.
Mr Bowen's solicitors are clear that they never sent a copy of the document to either the Council or to Mr Bowen. The solicitors sent the document to their Councel's chambers' by way of fax. I understand that your Solicitors would also have received the document directly from the Court. …"
"Let's hope Carmarthenshire can maintain essential services and not divert spare cash into CV stuffing projects. Which reminds me, I guess a fair few visitors to this blog searching for the Chief Executive – most recently from the executive recruitment companies – perhaps he's moving on.
Anyway, I trust they found this blog of use…"
"…I have now come to the inescapable conclusion that the six month enquiry went something like this: …
Audit Office; 'So sorry to bother you, but we've got these two here again asking awkward questions… what shall we tell them this time?'
Council: 'Tell them the same load of b******s we've told everyone else – simple!'… 'look, if we can convince a High Court Judge and get away with it, I'm sure these two shouldn't be a problem".
"I see today's local newspapers are full of news regarding Minnie Driver and her bid to save Brynamman Lido, this is very commendable and public spirited I wish the people who run the Lido all the success they deserve.
All this talk though of swimming pool donations has reminded me of another incident, in 2006, involving another swimming pool donation. I would like to warn Ms Driver, or the film company that any donations (I believe £2,500 has already been publicly pledged) shouldn't be left in used notes stuffed in a brown envelope on Chief Executive Mark James desk as this can, as you can see here, here, and here cause an awful lot of confusion".
"I wish to make a formal complaint against the Chief Executive's Department of Carmarthenshire County Council in that no action has been taken against members of staff who processed a document from a private legal case … as it was stamped twice I am very concerned that there are persons within these two departments who were prepared to conspire to steal public funds and commit fraud."…
"It also helps to explain the WAO's reluctance to pursue any further the collusion amongst certain senior officers of Carmarthenshire County Council to steal public funds."
"As part of the government's transparency drive I want to highlight the importance of your council giving citizens the opportunity to access and experience their local democracy using modern communication methods… Council meetings have long been open to interested members of the public and recognised journalists and with the growth of online film, social media and hyper-local online news they should equally be open to 'Citizen Journalists' and filming by mainstream media. Bloggers, tweeters, residents with their own websites and users of Facebook and YouTube are increasingly a part of the modern world, blurring the lines between professional journalists and the public.
There are recent stories about people being ejected from Council meetings for blogging, tweeting or filming. This potentially is at odds with the fundamentals of democracy and I want to encourage all council's to take a welcoming approach to those who want to bring local news stories to the wider audience….
I do recognise that there are obligations on whoever is filming or publishing information – be it the council itself or a citizen or mainstream journalist -- under the Data Protection Act 1998. But I do not see these obligations as preventing access for journalism… The Information Commissioner's Office has told us that: …
In the context of photographing or filming meetings, whilst genuine concerns about being filmed should not be dismissed, the nature of the activity being filmed – elected representatives acting in the public sphere – should way heavily against personal objections".
"… This could be either a sound or video recording which could be used to illustrate the democratic process to residents of the County. I trust the Council has no objection to the use of mobile phones (on 'silent' of course) by the public in the Gallery to relay information to other residents through social networking sites… A quick response would be welcome prior to the Council meeting on 28th February."
"While the law requires us to allow public access to meetings, it does not require us to allow recording of proceedings by members of the public and our current practice in that it is not permitted, and this is respected by the media who report our proceedings.
I regret that the same principle would need to be applied to your request.
There are many legal and practical considerations which need to be addressed and resolved before a Council can consider going down the route which you are suggesting. The Council is aware, however, that there is a developing public interest in the use of modern technology at meetings of Councils and other public bodies, and will be reviewing this issue in the light of legislation and government guidance. How that is progressed will be a matter for Council members to decide in the future".
"Pleased to see the campaigners trying to save two care homes for the elderly Llanelli score a victory today in Carmarthenshire Council Chambers. I intended to remain for the entire budget debate but due to the late start, flat battery on my phone and severe toothache I called it a day. I spent and interesting couple of hours though filming photographing and tweeting from the public gallery. Further to my previous posts, whereas it may not be Council policy it is not against the law to record meetings in such a way. This was, as you will see from the quality of the video, an experiment and the examples are given (YouTube links) to make my point. Point made. …
"It is virtually impossible to stop, given modern technology, so I suggest we don't make a fuss. If we spot it in future we can ask them to stop…"
"This blog is two years old today so I thought it was a good time to refresh my mind as to why I started writing it in the first place. Initially it was out of a sense of frustration and injustice over both the planning system in Carmarthenshire as well as the circumstances around the libel case and the subsequent changes to the county's Constitution. All this has been well covered in this blog and is ongoing. However, in case you need reminding, and in a nutshell; our valid criticism of the planning department resulted in a libel claim against us, the council unlawfully backed the Head of Planning to bring the claim forward to get round the rule that a governing body cannot sue for libel. The costs risk to ourselves became so great that we had to eventually had to abandon our defence and settle. As a direct result of this action the Council acted unlawfully again and amended the constitution so that libel claims on behalf of officers could be funded by the taxpayer – enabling the rule to be avoided, this time with the veneer of legality. In addition, further criticism can now be silenced by the 'libel chill' that the Chief Executive and Legal Department has created. … as this blog has progressed I have widened the topics to include other issues which have arisen, or been in the news concerning Carmarthenshire County Council. It also became clear that this local authority lacked a critical voice, either by accident or design…
I have no doubt that if UK libel claims were not so impossible to defend, and Carmarthenshire Council did not have endless amounts of tax payers money at their disposal, I would repeat my criticism (or the 'words complained of') not only about the planning department but this time I would include the Chief Executive's and the Legal Department as well. 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."
"'Stopped from Filming a Council Public Meeting' …
As you will see from the video below (and on You Tube) I was stopped by the Council solicitor. Apparently it is not allowed (although I remember them allowing the BBC to film in the Chamber when Prince Charles' application went in front of the Committee a couple of years back…) anyhow, like my previous attempts I believed I was acting in the public interest, at a public meeting, where elected councillors were doing their public duty… I fail to understand their attitude… I was also asked to give my name and address at the end of the meeting, I am not sure why, anyway I left before the end and didn't oblige…"
"A male approached her in the gallery saying not to film the meeting on her phone and that Mark James (Chief Exec) had sent him to fetch her phone and get her to leave. He was very aggressive in manner towards her – and she thinks he was one of the Council officers … she held her phone in her hand – but was not filming – and this male just came upon her and was very intimidating towards her".
"The IP was in the public gallery within council chambers when an unknown male approached her; after asking her to refrain from filming the meeting, the male allegedly grabbed her hand in an attempt to seize her mobile phone, causing pain to her hand. No visible injuries were caused. It is not believed to be an attempt to permanently deprive the IP of the phone, merely an attempt to stop her from filming".
"This statement … is true to the best of my knowledge and belief, and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true".
"I volunteered for the task and was able to identify the lady concerned straight away as she was leaning over the gallery parapet with her mobile phone faced in front of her.
[The only other people in the gallery were officers from the Planning Division - … they were seated at the rear of the gallery].
I sat in the seat next to her, the meeting below was still proceeding, and asked her if she would kindly remove her mobile phone from where it was and cease filming or recording the meeting if that is what she was doing. She said she was not filming and sat down but continued to hold the mobile phone, which I could see was switched on, over the parapet and I placed my hand in front of it. I again asked her to stop filming/recording … and asked her to remove her phone from the parapet which she did and briefly handed me the phone to show me it was not in recording mode. At no point did I attempt to take the phone off her. I advised her that it was the Council's current practice to prohibit recording or filming during meetings of the Authority, drawing her attention to a sign in front of her to this effect, and that this was accepted by the press. I also stated that if she persisted in trying to record or film the meeting I would have to ask her to leave the meeting and if then, she declined to leave but carried on filming the Chair had the power to adjourn the meeting. Whilst notifying her of these facts I observed she was typing words into a Twitter account. [At some point here the Planning Division staff left the Gallery …]
After a short period where I believe I had frustrated her attempts to continue filming by otherwise engaging her attention through conversation whilst avoiding confrontation or physical contact she stated that she was leaving. As I escorted her out of the building she said she could see nothing wrong in filming the meetings whilst I reiterated that it was not permitted in this Authority's meetings. I then returned to… my work. All this took place in about 20 minutes". (square brackets original)
"Distressing Incident in the Public Gallery
I feel I ought to mention this. I had hoped to bring you a report on Wednesday's Full meeting of the Carmarthenshire Council… However, I am unable to do so as I had to leave the Public Gallery. After about three quarters of an hour into the meeting, when the members of the public had left the gallery and I was on my own, a man approached me and said that he had been sent by the Chief Executive, (who was in the Chamber below) and asked me to leave. I was very surprised, as I wasn't disrupting the meeting in any way and was quietly observing the proceedings below. I asked why and was told it was because they thought I was 'filming' – I wasn't. I had my phone in my hand to use Twitter if there was anything to tweet but had not raised the phone to film at all. The events that followed led me to make a complaint to the police concerning assault and attempted theft. I am now preparing to give a full statement. I felt intimidated, distressed and very uncomfortable. It was a disturbing incident in of all places, the Public Gallery of our County Council.
I will report further, if and when matters unfold".
"never made any accusation of attempting to steal her telephone or 'her camera'… it was the police who suggested that the man's actions might amount to attempted theft."
"adamant that she deemed herself as being the victim of crime in so much that by the actions of the male as identified above whereupon he allegedly grabs her hand and removes phone from her grasp, thus in her eyes committing the offence of assault…"
"By the time it got to a particular item I was interested in, I realised that every body else had left the public gallery and I was there on my own, which meant that the total time I was in there would have been around 45 mins.
Whilst I was sitting in the public gallery on my own, located right at the front of the public seating area and to the left as you look towards the chamber, I noticed a man coming towards me at some speed, by that I mean he seemed to be in a bit of a rush. I looked at him and he sat down right beside me. Straight away he said 'I've been sent here to ask you to leave' I said 'why' to which he replied words to the effect of 'we think you've been filming' I replied 'no I haven't I am just observing the meeting'. I also said 'who has sent you?' to which this man said 'the Chief Executive' looking towards the Chief Executive as he said it.
I describe this man as wearing darkish blue coloured shirt possibly a tie and dark sit type trousers. I am certain he was wearing glasses. He was mid to late twenties in age. I have never seen him before. … this man appeared to become more agitated since I was protesting the fact that I wasn't doing anything wrong, however he was still insisting that I was recording, so I showed him that I was on Twitter so it was not possible to record and Tweet at the same time. He said that he had a phone like mine and thought that I could, so it was around about then that he went to grab the phone out of my hand. I was feeling quite intimidated by now and I could see he was now getting up on his feet and signalling to the Chief Exec downstairs.
As this man grabbed my phone out of my left hand, it was quite a violent grab which meant he took it and started touching the screen of my phone.
I was horrified and looked and saw that my phone was in his hands and had obviously brought up the text messaging since I saw my daughters name on the screen, at which point I demanded it back, which resulted in me reaching over and taking it off him.
I then laid the phone flat on a large shelf directly in front of me and kept my hand on it since I didn't want him taking it, but he put his hand on my hand to pull the phone off the shelf. The phone was still on at the time.
That happened a couple of times, since I kept saying that it wasn't recording. He just got even more agitated in so much that he was getting up and down looking over into the chamber saying I was recording him, all this resulted in me feeling very uncomfortable. The way he was behaving I was sort of quite frightened, I was on my own, the meeting downstairs didn't stop, though there was no reason, I didn't know what they should have done really…
More or less at that point I thought I better go out of the public gallery so I got up and went with this man following me out of County Hall.
I want to make a criminal complaint against this man of assault for violently taking the phone out of my hand and continuing to touch my hand.
Because of him touching my hand I felt distressed, distraught, and suffered pain to my left hand as he grabbed my phone.
I felt minor pain which lasted 10 - 20 seconds. It did not leave a lasting mark and I have not recorded or sought any medical advice/treatment due to the incident within the chamber.
I thought I was alright to drive home on my own. "
"You are of course welcome to attend Council meetings, but because of the involvement of the Police, I will require an undertaking from you that if you wish to attend you will not attempt to film the meeting. I enclose a form of undertaking… if you are not prepared to give that undertaking, or if you attend meetings and there is a suspicion that you are attempting to film the meeting you will be asked to leave by the Chair and if necessary the Police will be called to remove you from the gallery".
"The last paragraph of the letter is bizarre, particularly as he suggests that the Police were involved over the issue of filming, which they weren't."
"…the Council will protect its staff against false and malicious allegations and will pursue the matter duly with the police, should this indeed, as we suspect, be the case. The Council has a legal duty to protect its staff and has to take appropriate and reasonable measures in that regard."
"I just wondered if you could perhaps pass this onto Simon or let him know that the CPS have decided there is insufficient evidence to secure a conviction against the chap who assaulted me in the Public Gallery, in other words the case is dropped. I am not surprised as there were no witnesses – Mr James saw to that by waiting until everyone had left the gallery apart from me…"
I am also concerned about Mr James' allegations over my complaint of assault. For someone with a degree in law, he actually appears to have a very poor grasp of such matters, and I would have thought he would know that the police investigate complaints and the CPS are the decision-makers. The Police did investigate, took statements from all sides, sent it all to the CPS and they then decided that there were insufficient witnesses to secure a conviction. If Mr James is so sure that everyone could see nothing happened, then where are their statements to that effect? His allegation that I made false statements is undoubtedly defamatory. …"
"I am looking forward to such coverage next May when I stand for County Council, except my letter may be a little different... !
"I am off to the public gallery this morning with my phone/camera for the full Council meeting – not sure what will happen when I start filming, or even if they will let me in, but going to try to make a stand if my nerve holds! - …"
"Police Constables were involved in the arrest of Ms Thompson on 8th June 2011 following an incident at a planning meeting in County Hall…
Due to the nature of the incident the officers requested Ms Thompson to desist from recording the proceedings and to leave the premises. She refused to do this and acted in a manner which led to the officers using common law powers of arrest to prevent any further breach of the peace. This is not defined as an arrestable offence – but carries a common law power of arrest.
In order to comply with the Police and Criminal Evidence Act 1986[sic] all detained people are taken to a designated custody suite where the detention is governed by Code of Practice under the jurisdiction of a Custody Officer who decides upon grounds for detention.
A consideration for the Custody Officer concerns the release of the detained person and whether the behaviour will recommence immediately upon release. An alternative for the release from custody would be for the case to be heard at a Magistrates Court where a Binding Over Order could be made.
As part of this process officers sought assurances from Mrs Thompson that she would not cause a breach of the peace upon her release. She provided a written undertaking to this effect and she was released from police custody just before 2.30 pm that day. There were no suggested charges following the incident.
Mr Green asks 'do the police realise this is a free expression issue'?
Police would consider the implications of the articles of the Human Rights Act when deciding on which course of action to take.
If Ms Thompson is dissatisfied with her treatment by the Police she can contact our Professional Standards Department who can advise her of her options".
"I am truly amazed by all this, the response on twitter has been huge I need to try and keep the momentum going… I bet Mark James is cursing me - again".
"Mark James is a complete s**t.
"At this point in the proceedings the meeting was adjourned for 15 minutes in order to secure the removal of a disruptive member of the public from the public gallery".
"Particularly as it would have no control over how such recordings were edited or presented, but accepted that, in terms of the modernisation agenda and e-government, the issue of recording and streaming its own meetings should be investigated".
"I had not interrupted proceedings, neither was I disruptive. I really hope this is not signed as a 'record'."
"Police Officers were called to County Hall, Carmarthen at about 10:20 on 8 June 2011. The officers were met by a council official who refused to deal with a lady who was filming the meeting due to historical complaints. The lady was asked to stop filming and leave to which she replied that she was not doing anything wrong and she would neither stop nor leave.
The officers asked the council official whether if the lady stopped filming she would be permitted to remain and were advised in unequivocal terms that she would not be permitted to do so and they wanted her removal from the premises.
The officers were concerned that the matter could escalate due to previous incidents between the two parties and the officers had to seek an appropriate resolution.
Dyfed Powys Police has no remit or opinion as to whether Carmarthenshire Council should impose a prohibition on filming. The officers were not called to enforce the Council's position on filming. They were called to assist them in the removal of a lady from the premises.
Whilst the Force understands and respects the moral and principled arguments of the individual the action taken remained solely in respect of her refusal to leave Council premises and threat to return; not in respect of her 'personal' beliefs. The officers were faced with a judgement as to how to resolve an escalating situation.
Dyfed Powys Police fully supports the officers who were dealing with an unfolding and acrimonious situation. The officers acted in accordance with their judgment at the time and sought to negotiate with the two parties in order to resolve the situation. The officers acted with complete professionalism and sought to understand and appreciate the respective personal views and beliefs of both parties".
"I haven't put in a formal complaint of wrongful arrest yet – that is also ongoing".
"Two Councillors … put forward an amendment [to the Minutes] to the effect that I had not disrupted the meeting. I have been told that they and two others voted for the amendment but the others voted against. The two Councillors then voted against the main vote to approve the minutes, and according to those who were admitted there were several abstentions but it was passed. The issue of the minutes is therefore still to be addressed."
"Dear Mr James,
I write this evening with reference to the expulsion of Jacqui Thompson from the Council Chamber on 8th June 2011, as I feel the Council's conduct in this matter gives rise to a number of concerns. Most notably, I feel this raises questions as to the Council's supposed accountability to the people, and also to the judgement and integrity of the Council's members. For a body charged with the representation of the public, these concerns are of course of paramount import, potentially even going so far as to call into question whether the Council in its current form is actually fit for purpose.
Having read the standing orders, I feel the first matter to which we must turn our attention is that of whether or not Mrs. Thompson actually disrupted the meeting. The only primary evidence I have been able to discover pertaining to this question is footage posted to the YouTube website. Indeed I believe this to be the footage that Mrs Thompson recorded using her mobile phone. For your convenience, I've included it below: …
Now, what troubles me is that I cannot hear any sort of disruption being caused by Mrs Thompson – indeed, it seems the meeting was actually disturbed from the floor when someone noticed she was filming. I have to admit of course that I cannot visually see how Mrs. Thompson was acting, but the camera once presented seems steady, and I therefore conclude that she merely pointed the phone's camera at the chamber and started recording. The only manner in which I can see this conduct might constitute disturbing what was after all supposed to be a public meeting would be if filming, photography or audio recording were actually prohibited by the standing orders – but this doesn't seem to be the case. Perhaps therefore you might be so kind as to explain the reasoning behind your apparent conclusion that it was Mrs Thompson who disrupted the meeting, by simply recording it, as opposed to the chair, who suspended it despite the fact that Mrs. Thompson was in total compliance with the standing orders?
I am aware that you have had previous altercations with Mrs. Thompson, and I know she clearly understood your view of filming, and clearly filmed anyway in defiance of it. However, your view of course is not law. I would remind you that in order to enact a ban on filming etc within the chamber, you would have [to] seek an alteration to the standing orders. The standing orders themselves make clear the course of events that must be followed in this regard. You are not even an elected member of the Council, so I find it hard to understand by what right you feel able to implement an arbitrary, informal ban on filming based on little other than your own personal wishes. Your position Sir, with respect, is to serve the Council - not the other way around.
One begins to wonder what perceived negative consequence of the filming of public meetings the Council is so afraid of. Surely it is in the interests of democracy that the people are able see the Council undertake it's business – and perhaps even engage with it as a result… My understanding is that recorded votes have become increasingly infrequent in recent times, and it is difficult therefore to understand how the electorate are expected to lend their informed support to a incumbent candidate if they have no access to how the member has voted on issues in the past. Filming would, of course, go some way (not all the way mind…) toward addressing that. If the Council were to arrange for the filming themselves, they could also avoid the potential issue of people only releasing edited videos – proper context could be ensured. [no text is omitted from this paragraph; this punctuation is in the original]
Next we come to the issue of honesty and integrity. The minutes for the meeting held on 8th June 2011 claim, as discussed, that Mrs. Thompson disrupted the meeting. As discussed above, and in the absence of any contrary evidence from yourselves, this plainly was not the case. I understand that four Councillor's refused to accept the minutes as a fair and accurate record – but were voted down by the rest of the chamber. I find that absolutely astonishing, and the best reason by a country mile that arrangements should be made to film all your public meetings from now on. Whatever the underlying reason, it seems that the public cannot have faith in the minutes – and that is incredibly serious. It is clear to both myself and most other civic minded people that your Council is well overdue for sweeping reform.
Finally, I note that you have apparently informed Mrs. Thompson that an apology in the light of the Council's conduct is "Out of the question". That Sir, if I may, is an utterly disgraceful decision. Mrs. Thompson broke no law, infringed no regulation (please provide evidence if you wish to contest this) and yet had her liberty curtailed as a direct result of your ridiculous actions. An apology is the least she be offered – I'd give her the keys to the city – maybe eventhe keys to the public gallery!
The fact that you feel you can lock the public out of the public gallery unless they agree to your arbitrary restrictions I feel highlights quite well your contempt for the people who elected the Council that, I remind you once again, you do not actually sit on.
Sincerely,
Martin Milan
Ps This being a blog I have a comments facility. Anything you submit will be published in it's entirety, unedited."
"Questions for Mark James from another Blogger - #DaftArrest
Yet again I am indebted to others for taking the time and interest to directly question the actions of Carmarthenshire County Council on 8 June with regards to the #daftarrest. Please have a look at this open letter to the Chief Executive, Mark James written by blogger @mjmilan. I hope that Mark James has a good read too and has the decency to respond."
THE WORDS MRS THOMPSON COMPLAINS OF
"You may have received a letter from Mrs Jacqui Thompson, furthering her continued campaign against the Council. Members have asked that a response be sent to Mrs Thompson. Please find attached a copy of the response which was sent to a blog site supporting Mrs Thompson. This sets out the Council's position succinctly."
"You make a number of claims in your text that I expect Mrs Thompson will likely contest, so am sure you will appreciate why I want to check… I will hold off on publishing it until the weekend unless I hear from you."
"I am pleased that Mr James has had the courtesy to respond. However, I strongly disagree with his comments and allegations and shall respond fully in due course."
"(1) I am pleased to reply to your request that I respond to your open letter in order to place on record the Council's position and to clarify some inaccuracies and misconceptions. It is useful to provide a little context before turning to the issue of filming on Council premises.
(2) 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. I do not intend to go into the detail of those applications or planning law but the decisions are a matter of public record including the dismissal of an appeal by the Thompsons to the Welsh Government in 2008.
(3) The Thompsons have chosen to personalise the matter, targeting officers and members in a continued campaign. They have in the past refused to leave Council buildings and threatened to go around to officers houses, causing the Police to have to be called.
(4) Mrs Thompson of course runs a "blog" site where, I am told, she makes scurrilous, inaccurate and misleading comments about the Council and its staff. She is quite at liberty to do so and, if people choose to believe what is on her site, that is a matter for them.
(5) However, where she defames an individual, that is different. Normally officers try to ignore or "turn the other cheek" to such comments. Given the behaviour of Mrs Thompson, one officer chose not to do so and began legal proceedings for defamation. The Thompsons were forced to make a public apology and pay that officer's costs.
(6) The latest manifestation of the Thompson campaign has been the filming on Council premises of meetings. I am informed that clips are then posted on her site, together with a running commentary of invective by Mrs Thompson.
(7) Mrs Thompson is well aware that, like every other Council in Wales, Carmarthenshire does not permit individuals to film in its buildings. She has been informed of this on numerous occasions in writing, which of course she has chosen to ignore as it does not suit her campaign. On a number of occasions at Planning Committees and at Council meetings, the Chairmen have asked Mrs Thompsons to stop filming. She initially, albeit reluctantly desisted.
(8) On 13th of April she was again observed filming and an officer went up to the public gallery and asked her to stop, which she did. However, she then made a complaint to the Police that the officer had assaulted her and attempted to steal her camera. There were many who witnessed the event and stated that was untrue. The Police investigated and quickly concluded that there was no case to answer. 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 officer concerned, like many others, did not want to make a fuss and the Council respects that.
(9) Turning now to the incident on 8 June. Mrs Thompson was again observed by a Councillor filming from the public gallery and the matter was drawn to the attention of the Chairman. The Chairman asked that she stop, but she began arguing with him and was defying his ruling. He therefore adjourned the meeting and asked that she be removed from the gallery in order that business could proceed.
(10) Given the previous occasion, the Council was concerned to ask a member of staff to approach Mrs Thompson, so the Police were called. They dealt with the matter. I gather Mrs Thompson remonstrated with them and she was arrested. That of course is a matter entirely for the Police.
(11) Finally, I turn to the matter of filming generally. No Welsh Council permits individuals to just film their meetings. Personally, I am agnostic as to whether the public should be able to film or record Council meetings. However, it is a matter for our elected representatives to determine and their practice at the moment is that it is not permitted. They have taken the view that the practice should not suddenly be abandoned at the behest of one campaigner with an agenda. I suspect Mrs Thompson's actions and intimidation have simply hardened their resolve. They have however, posed the question whether the Council ought to film and video stream its own proceedings online. To this end, they have asked a group of Councillors who are already looking at e-government, generally, to look into what could be involved and report back."
"Mark James - on the Road to Self Destruction?"…
As a campaigner for free speech I respect Mr James' right to express his opinion but I am troubled that he has decided to smear my entire family. I can take criticism, I would not write a blog if I couldn't, and I can understand that Mr James is a little peeved at recent criticism directed against his council from other quarters. But this time he has gone a step too far, he has not only made a series of false allegations about me, but has also decided to include my family in his defamatory statement.
THE PLEADINGS
The amended Particulars of Claim
"4.1 That [she] has conducted and continues to conduct an unlawful and vindictive campaign of harassment, intimidation and defamation against Council staff and Council members, which has included targeting individual staff and Council members.
4.2 That, in pursuit of this campaign, she has flagrantly and repeatedly breached a lawful Council prohibition against filming Council meetings.
4.3 That she committed the crime of attempting to pervert the course of justice by deliberately making false statements to the police about the conduct of a Council officer."
"5.1 [Mrs Thompson] has conducted and continues to conduct a campaign of harassment, intimidation and defamation against staff and members of the Second Defendant;
5.2 [Mrs Thompson] uses her blog site to make scurrilous, inaccurate and misleading allegations about the Second Defendant and its staff and members;
5.3 [Mrs Thompson] repeatedly disregarded requests from the defendants not to film Council meetings;
5.4 [Mrs Thompson] is guilty of making a knowingly false complaint to the Police that she had been assaulted by an officer of the Second Defendant who attempted to steal her mobile phone."
"7.1 The actions of [Mrs Thompson] towards the [Council], its staff and members amount to a personalised campaign of harassment, intimidation and defamation against staff and members of the [Council] and/or
7.2 [Mrs Thompson] posts on her website scurrilous, inaccurate and misleading comments about the second defendant and its staff and members."
"(1) A meeting of a principal council shall be open to the public ….
(7) Nothing in this section shall require a principal council to permit the taking of photographs of any proceedings, or the use of any means to enable persons not present to see or hear any proceedings (whether at the time or later), or the making of any oral report on any proceedings as they take place.
(8) This section is without prejudice to any power of exclusion to suppress or prevent disorderly conduct or other misbehaviour at a meeting."
"9.7 In the circumstances the Defendants and each of them
9.7.1 Have a moral and/or social duty and/or it was their legitimate interest to publish the words complained of and readers had a corresponding and ligitimate interest in receiving the information; and/or
9.7.2 Were entitled to reply to the attacks levelled at them and did so reasonably and proportionately; and/or
9.7.3 Behaved responsibly in preparing and publishing the words complained of which were in the public interest and therefore had a moral and/or social duty and/or it was their proper and legitimate interest to publish the words complained of to the public at large and the public at large had a corresponding and legitimate interest in receiving the information.
10. Further and/or alternatively … [Mr James] is in an existing and established relationship with elected members of the [Council]. Each elected member had a common and corresponding interest in knowing what had been written by [Mr James] who also had a legitimate interest and/or legal, moral and social duty to inform them of what he had written. .."
APPLICABLE LAW OF LIBEL
Meaning
"A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally."
"the publication of which he complains may be defamatory of him because it [substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency so to do."
"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. …"
"There is a long and unbroken line of authority the effect of which is accurately summarised in Duncan & Neill on Defamation, 2nd ed. (1983), p. 13, para. 4.11 as follows:
"In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication. Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage."
The locus classicus is a passage from the judgment of Alderson B. in Chalmers v. Payne (1835) 2 C.M.& R.156, 159, who said:
"But the question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff's character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together."
This passage has been so often quoted that it has become almost conventional jargon among libel lawyers to speak of the bane and the antidote. It is often a debatable question which the jury must resolve whether the antidote is effective to neutralise the bane and in determining this question the jury may certainly consider the mode of publication and the relative prominence given to different parts of it. I can well envisage also that questions might arise in some circumstances as to whether different items of published material relating to the same subject matter were sufficiently closely connected as to be regarded as a single publication. "
"13. It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court.
14. This has been explained in the material before me and is, in any event, nowadays a matter of general knowledge. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or "give and take". ..
16. When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a "thread" and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.
17. It is this analogy with slander which led me in my ruling of 12 May to refer to "mere vulgar abuse", which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious. A number of examples will emerge in the course of my judgment."
Justification or truth
"In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges."
Qualified privilege
Honest comment or opinion
"[3] … [i] … First, the comment must be on a matter of public interest. ….
[ii] Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith's Weekly (1923) 24 SR (NSW) 20, 26:
'To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.'
[iii] Third, the comment must be based on facts which are true …. If the facts on which the comment purports to be founded are not proved to be true …, the defence of fair comment is not available.
[iv] [Next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based].
[v] Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject-matter criticised. Dislike of an artist's style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174.
These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon the defence.
[4] … A defendant is not entitled to rely on the defence of fair comment if the comment was made maliciously…
"[5] … A defamatory comment about a person will almost always be based, either expressly or inferentially, on conduct on the part of that person. Judges and commentators have, however, treated a comment that does not identify the conduct on which it is based as if it were a statement of fact. For such a comment the defence of fair comment does not run. The defendant must justify his comment. To do this he must prove the existence of facts which justify the comment.
[108]. … If Cheng [2001] EMLR 777 is accepted as correctly setting out the test of malice, the scope of malice has been significantly narrowed. The fact that the defendant may have been motivated by spite or ill-will is no longer material. The only issue is whether he believed that his comment was justified. In practice this issue is seldom likely to be explored, for the burden is on the claimant and how can he set about proving that the defendant did not believe what he said? ".
DETERMINATION OF MEANING ON THE CLAIM
"4.1 That [she] has conducted and continues to conduct an unlawful and vindictive campaign of harassment, intimidation and defamation against Council staff and Council members, which has included targeting individual staff and Council members ("the first meaning").
and
4.3 That she committed the crime of attempting to pervert the course of justice by deliberately making false statements to the Police about the conduct of a Council officer ("the second meaning")."
TRUTH OR JUSTIFICATION
"The issue for the Court is whether this is a genuine and good faith blog that contributes to public debate about local politics and Council issue or whether it is an ongoing act of harassment, intimidation or defamation".
QUALIFIED PRIVILEGE and HUMAN RIGHTS ACT 1998 s.6 and Art 8
"1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of …, public safety …, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "
PART 20 COUNTERCLAIM
(1) 28 February 2011
"News on how other front line services will fair in this afternoon's debate will soon emerge. I wonder if the Chief Executive will resign and save us all a few quid? Doubtful – he still has many 'visions' to fulfil. Will he do everything in his power to protect the 'officers club' slush fund? You bet he will. (See the column on right in red and here)."
"Mark James and the Council Slush Fund. Carmarthenshire County Council Chief Executive, Head of Law and Head of Resources now have delegated powers to commence and fund (with taxpayers' money) libel proceedings against the public and the press on behalf of themselves and other officers. The Council, as a governing body has now enabled itself to bring and fund illegal libel actions under the cloak of a private claimant. This is the only Council in the UK to have granted themselves these powers. This is unlawful open to abuse, a threat to free speech and a grave misuse of taxpayers' money. See many posts on this blog".
"while it remained to be seen how the budget debate would impact on public services, she felt sure that [Mr James] would do everything he could to ensure that the [Council]'s controversial amendment to its constitution, allowing it to use public money to fund libel claims by its officers and [Mr James] (what is dubbed in this pleading the Libel Costs Amendment), was not affected".
"So I used slush fund so people would understand about the libel costs amendment".
(2) 22 March 2011
"I also hear a rumour that Carmarthenshire Council are going go be asked to take a 10% pay cut. It wouldn't surprise me. Isn't it lucky that Mark James and his cronies have the foresight to finance various deals (this for example), just before all this budget nonsense came along and, of course, the Council has to keep its slush fund nicely topped up..."
(4) 1 June 2011
"One more thing, several people have left comments on recent posts which I have been unable to put on. You know who you are and I agree wholeheartedly with what you all say about the Chief Executive, Mark James – the trouble is I wouldn't want him to use your money by dipping into the exclusive slush fund – you could then say goodbye to another day centre and probably a couple of small primary schools too. …"
(5) 14 July 2011
"Perhaps as I am a Community Councillor, I could ask the Council if I could dip into Mr James' slush fund and request that they instigate libel proceedings – isn't that what they amended the constitution for?"
(3) 6 April 2011
"Council PR Stunt Backfires"
… typically the Council is back peddling and trying to avoid the clear conclusion that they have completely ignored public opinion and there own consultation although why we should be surprised at that I don't know. Its all a bit worrying, lets hope that the Chief Executive Mark James takes his role of returning officer (for which he is paid a fat fee) a little more seriously during important elections – and gives an accurate result, not just the one that the Council prefers!
Perhaps we should be grateful the Council didn't go for 'the Mark James' or … although on the subject of Council pantomime, … I am sure Mr James would make a splendid Abanazer … or would that be Pinocchio".
Abuse of Process
"while [he is] not debarred from bringing libel proceedings… civil servants acting in their official capacity … [are required to]… show 'a greater degree of tolerance' to public scrutiny and criticism."
"Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good".
"As Baroness O'Neill said (The Financial Times 20 November 2011):
"Both false and unreliable reporting, and reporting that misrepresents its aims and its evidence, can silence, confuse or marginalise important issues or voices, can promote manufactured or manipulated 'news', and can make it hard or impossible for audiences to judge what they read, hear and view. Failure to maintain standards for adequate communication, including adequate standards for truth claims, can have heavy costs."
Damages
CONCLUSION
i) I have found that Mrs Thompson was engaged in an unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other Council officers;
ii) This campaign was conducted through letters and e-mails which Mrs Thompson circulated to large numbers of addressees and the media, starting in March 2006, and by her blog started in 2009, and continuing thereafter;
iii) What I have found to be the campaign of harassment does not, and I emphasise not, include the occasions in and between February and June 2011 when she was also conducting a protest against the ban on filming the Council's proceedings with her mobile phone, subject to one exception;
iv) The one exception is the occasion when on and after 13 April 2011, after she left the Council chamber, Mrs Thompson falsely accused Mr Davies of assaulting her and attempting to steal her phone;
v) Mrs Thompson has not complained to the Council that she was assaulted on 13 April 2011, nor, so far as I have been told, has she made a complaint to the police that she was wrongly arrested on 8 June 2011 (they arrested her to prevent a breach of the peace);
vi) The parties have asked that I make no ruling on whether the Council's ban on filming was lawful or not: I have not made a ruling on that, and there was not the material before me to enable me to make a ruling on that question;
vii) A summary of the findings of fact that I have made is at paras 5 to 21 above.