SLAPP Happy WTC?
- – an “In My View” article by NIGEL WARD, reporting on bizarre actions by certain members of Whitby Town Council who seem to have abused the public purse by instigating an unlawful attempt to silence valid and much-needed criticism.
For the benefit of readers unfamiliar with the term, let me begin with the Law Society acronym ‘SLAPP‘ – which stands for Strategic Lawsuits Against Public Participation.
SLAPP, in plain English, describes a scenario in which wrong-doers attempt to mis-use the legal system to intimidate critics and whistle-blowers.
To this end, WTC’s Human Resources Committee would appear to have made the absolute beginner’s mistake of instructing a solicitor to threaten me with legal action – but without declaring the whole truth of the surrounding circumstances. I say “would appear” because there are several reasons to doubt the authenticity of a purported solicitor’s letter which was not marked ‘Confidential’.
It is not a CPR-compliant Letter before Action and therefore enjoys no legal privilege, so I have no qualms about reproducing it for general inspection, in the public interest:
I will not burden readers with my reasoning for doubting its authenticity here in this column, but those who wish to review my response to the Council are welcome to do so, here:
In fact, first indications are that the Council has not been entirely truthful in the process of instructing a solicitor – if indeed it has instructed a solicitor, which remains unclear.
In an inappropriately brief, unfocussed and entirely unsubstantive response email of 9:00am this morning (6th November 2023), the Whitby Town Mayor, Councillor Bob DALRYMPLE, has neither confirmed nor denied that the purported solicitor’s letter is genuine.
Those who have read the Letter to the Editor from a retired County Councillor (published a week or so ago on the North Yorks Enquirer) will be aware that in 2015/16, the North Yorkshire Police squandered over £1 million of public money on a vain attempt to silence me (and my colleague Tim HICKS – the Enquirer’s Police & Crime correspondent) with two unsuccessful reports – Operation Rome and Operation Hyson – to the Crown Prosecution Service (CPS), seeking to prosecute us for criminal harassment, followed by an equally futile civil action in the High Court, for revealing monumental incompetence (and worse).
That was seven years ago. We are still exposing incompetence and corruption in the North Yorkshire Police and North Yorkshire Councils to this very day.
Astonishingly – but perhaps unsurprisingly – a small group of Whitby Town Councillors, operating within the Human Resources Committee, whose actions are largely unknown to (and entirely unaccountable to) Full Council, have now Resolved to squander public money by instructing a ‘hot shot’ firm of London solicitors to threaten me with a SLAPP (specifically, unlawful lawsuits for harassment and/or defamation) for exposing inconvenient truths, deeply embarrassing to certain Councillors as individuals.
This knee-jerk reaction is a typical of what has become known in investigative-journalism circles as ‘the UN syndrome‘, namely:
- UNMANDATED Councillors (i.e. either elected unopposed or co-opted), who select –
- UNSUITABLE members to serve on a Human Resources (HR) Committee, which appoints an –
- UNQUALIFIED Clerk & Responsible Financial Officer, who drafts –
- UNCOMPLIANT Annual Accounts (AGS/AGAR), as approved by an Internal Auditor, who is –
- UNFIT for purpose, with the result that the External Auditor deems them potentially –
- UNLAWFUL, thus incurring Investigation Fees that are –
- UNBUDGETED (which is also UNLAWFUL), so that investigative journalists are –
- UNCONVINCED and raise eligible Objections and Formal Corporate Complaints that are –
- UNADDRESSED by the –
- UNMANDATED Councillors . . .
. . . and round and around we go until the weight of evidence is such that the UNQUALIFIED Clerk/RFO screams for help from the UNSUITABLE members of the HR Committee, who may be fearful that the UNQUALIFIED Clerk/RFO will resign (leaving them up a certain well-known creek with no paddle).
And, worse yet, the UNQUALIFIED Clerk/RFO may then make a claim to the Employment Tribunal for Constructive Dismissal (on the grounds that the HR Committee has failed to protect her/him), with the likely intention of moving on to the next UNSUSPECTING Town (or Parish) Council with the benefit of a bonus ‘golden handshake’ – where the whole UNSUSTAINABLE cycle can begin all over again.
At this point, the HR Committee, having been strenuously encouraged to react, panics and Resolves to take the UNLAWFUL action of instructing a largely UNINFORMED firm of solicitors to attempt to silence criticism with a Strategic Lawsuit Against Public Participation (SLAPP).
The Solicitors Regulation Authority (SRA) has strenuously condemned SLAPPs; see its Guidance below:
“There is public concern – and we are concerned too – that solicitors and law firms are pursuing a type of abusive litigation, known as strategic lawsuits against public participation (SLAPPs), on behalf of their clients.
The term SLAPP is commonly used to describe an alleged misuse of the legal system, and the bringing or threatening of proceedings, in order to harass or intimidate another who could be criticising or holding them account for their actions and thereby discouraging scrutiny of matters in the public interest.”
“This involves the use or threat of litigation for reasons that are not connected to resolving genuine disputes or advancing legal rights. Purposes can include silencing criticism or stalling another process. An aim may often be to use the threat of cost or delay to achieve these outcomes.”
[my emphasis is bold type]
This last sentence has particular significance in the present case; the WTC Human Resources Committee has Resolved to disregard my Formal Corporate Complaint against the Whitby Town Clerk/RFO who, I contend, stands in multiple breach of various legal requirements and multiple terms of his Job Description (as supported by the FACT that the Council has failed to have its 2022/23 Annual Accounts, prepared by the very same Clerk/RFO, ‘signed off’ by the External Auditor by the statutory ‘closing date’ of 30th September 2023).
And now, in today’s papers, comes the following appalling news:
Dame Meg HILLIER MP [Lab.] (Hackney South & Shoreditch), Chair of the Commons Public Accounts Committee (CPAC), is on record as stating:
“This lack of scrutiny of councils’ finances removes any early warning system for local authorities in financial difficulty. The implications for public services do not bear thinking about at both the local and national level, and for the lives of people who depend on them.”
The fact is that, were it not for “armchair auditors” (e.g. the present author and his colleagues) reporting on “risky behaviours” that would otherwise go “undetected”, there would appear to be no worthwhile scrutiny at all.
Open and transparent Councils would do well to embrace our pro-active input, solely intended to assist in identifying serious accountancy and governance failures which, at present, are going “undetected”. But what to do when the bad apples are controlling the barrel?
The WTC Human Resources Committee sees me as the bad guy because I have had the temerity to criticise them and their lamentable performance.
Heads up, good people!
Meanwhile, Whitby Town Council appears to have no concerns about the External Auditor charging £355 per hour + VAT (or £2,485 per day + VAT) to investigate the Council’s Annual Accounts – and why would it? These charges will fall to the rate-paying public of Whitby – not the Councillors.
But wait one moment. Whitby Town Council must be aware that External Auditor Investigation Fees of £37,100 of Investigation Fees at Potto Parish Council (also audited by PKF LITTLEJOHN LLP) were reduced to £12,100 by the Small Authorities Audit Appointments Ltd (SAAA), who forked out the other £25,000 from a ‘slush fund’ established by government to ‘bail out’ inadequate small Councils.
Whitby Town Clerk/RFO, Mr Michael KING, is a member of the Board of Directors of the SAAA (and the Society of Local Council Clerks):
Join the dots . . .
Returning to my SLAPP, the Solicitors’ Regulation Authority also states:
“The key aim of a SLAPP is to prevent publication on matters of public importance such as academic research, whistleblowing, campaigning or investigative journalism.
They are a threat to the rule of law, free speech and a free press.”
[Again, my emphasis in bold type]
I do not take kindly to threats.
However, the SRA offers a whistle-blowing service:
When my colleague Tim HICKS submitted a response to the Ministry of Justice’s call for evidence on SLAPPs, on 17th March 2022, he received the following response:
[Tim’s emphasis in bold type]
In fact, legal precedent (Case Law) also prohibits attempting to use the Protection from Harassment Act 1997 to silence critics, as the following excerpt from the Judgment in Thomas v News Group Newspapers Ltd & Anon. (2001) [Court of Appeal] confirms:
HHJ HICKINBOTTOM, in Heesom v Public Service Ombudsman (2013), has ruled, with respect to “local councillors” that Article 10 of the Human Rights Act 1997 protects both the substance and the form of what is said to and about local politicians:
“A degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive is to be tolerated”, as “local councillors” are “expected and required to have thicker skins and have more tolerance to comment than ordinary citizens”.
In any case, none of these negative adjectives is applicable to my voluntary work in the public interest; I am always measured and polite in my articles and my correspondence – though I confess to the inclusion of a little light humour (against which there is no prohibition).
So much for harassment.
As regards to defamation, s.2 of the Defamation Act 2013 states:
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
All of my ‘imputations’ are true. Were such not the case, I would take great care not to publich them!
So much for defamation.
To make matters even worse for the Council, I have scrutinised the Council’s process for attempting to mount this SLAPP and, in my view, there has been a series of significant departures from the legal requirements.
At an Extraordinary Meeting of WTC’s Human Resources Committee held on 3rd October 2023 (the draft Minutes for which appear in the Agenda Pack for the meeting of Full Council on Tuesday 7th November 2023), evidence of the Committee’s state of panic is made manifest:
The complaint mentioned above is my detailed and fully-evidenced Formal Corporate Complaint to Full Council (not, on advice, to the HR Committee – to Full Council) against the Clerk/RFO, lodged on 26th September 2023 and hitherto UNADDRESSED by the Council.
But the HR Committee has Resolved to kick the Complaint into the long grass and “wait until the auditor’s report is received before taking any further action”.
Astonishingly, as its very next step, the HR Committee then Resolved to ignore that first Resolution (“to wait…”) and proceed immediately, like headless chickens, to take action to the effect that “a cease-and-desist letter is sent to the complainant” – me!
I dislike clicheés but, in this present case, I find no more apposite form of words than:
“You couldn’t make it up!”
Naturally, this further breach of Governance/Compliance will be one of many finding its way to the External Auditor – and to the Solicitor’s Regulation Authority.
And despite such a clear example of sheer incompetence, these utterly irresponsible people have the brass neck to resent criticism for playing fast-and-loose with the public purse! The more I set them right, the more they do things wrong. Beyond education . . .
At the very forefront of my criticism of Whitby Town Council has been the fact that, of all the Town Councils in North Yorkshire, WTC spends the highest percentage of its Council Tax revenue (Precept) on employing Staff.
The table below, based on the 2022/23 financial year, shows WTC at the very top of North Yorkshire’s Town Council list, with 96.2% of its Precept squandered on Staffing Costs (salaries, NI contributions, pensions, superannuation, etc):
Should that ‘worst in the County’ record be beyond criticism? Surely not.
Especially since that meager 3.8% surplus seems to have accomplished no discernible benefit to the town whatsoever.
In the two most recent financial years, WTC (2022/23 and 2023/24) has raised over half a million pounds in Precept revenue – and spent over four-hundred-and-fifty thousand of it on Staff! And despite all this office ‘fire power’, WTC’s 2022/23 Annual Accounts have not been ‘signed off’ and potentially crippling External Auditor Investigation Fees will ultimately fall to the tax-payers.
Yet certain Councillors resent all criticism to such a degree that they are committed to wasting even more tax-payers’ money threatening a futile legal action that Whitby residents, with no say in the matter, will be forced to pay.
That recent Letter to the Editor of the Enquirer pointed out that this has happened before – when North Yorkshire Police instructed the north’s pre-eminent barrister, Mr Simon MYERSON KC, and wasted over a million pounds on the same utterly immoral exercise. Who paid for that? The tax-payers, of course!
Meanwhile, Whitby Town Mayor Councillor Bob DALRYMPLE continues to decline my invitations to come and discuss the Council’s problems over a coffee. I continue to be disappointed, not least because I had hoped to explain to the Mayor the vast and UNBRIDGEABLE difference between a barrister and a barista:
Whitby Town Council will meet, in Full Council, on Tuesday 7th November at 6:00pm in the Pannett Art Gallery, Pannet Park, Whitby (despite having previously resolved not to do so).
I would encourage all those who wish to hear Whitby Town Council’s response to the recent Whitby Town Poll to attend. Prepare to be insulted.
There are 10,103 electors in Whitby. Only 310 turned out to vote – over three-quarters of whom OPPOSE the Town Council and the Whitby Town Deal Board (WTDB) proposals for the Market Place and Endeavour Wharf.
The Council will choose to dismiss those 310 votes on the grounds that the turn-out was too low to be representative (even though it was 10-12 times higher than the recent NYC “Let’s Talk” consulatation).
The Council will seek to disregard the fact that 9,793 electors knew full well that Whitby Town Council will continue to ignore the electorate – and force them to pay for its boundless stupidity.