This is a technical blog and not for the general reader of The Skidder although a number of folk have asked for this specific information. This chronology is for use in the ongoing dispute with bent Labour Sandwell Council and its attempt to use taxpayers' funds to pay McNally's costs in her malicious legal claim against me.
If you do plough through it you will see that both the current Leader (Cllr Rajbir Singh) and his predecessor (Cllr Maria Crompton) were in on this and did nothing to stop the impending disaster.
This chronology will also form part of ongoing complaints to sundry statutory and regulatory bodies and to certain national and local politicians. Certain individuals must face the consequences of their actions here - it's as simple as that!
McNally v Saunders - Costs Chronology
Version 1 - 27/09/21
2013
In late 2013 I started writing a blog, "In The Public Domain", more popularly known as "The Sandwell Skidder". This has been devoted to exposing corruption, cronyism and incompetence within Sandwell Council. From 2014 onwards, SMBC has used all possible means to close the blog down and to harm me personally.
Sandwell Council is a one-party fief and has frequently relied on the fact that there has been no political opposition to act unlawfully. Sandwell is a dirt poor Borough and so SMBC abuses the democratic process in the full knowledge that most objectors to Council decisions do not have the resources to pursue Judicial Review claims against it.
Since, at least, 2012 the paid service has ceded its independence to the political leadership and acts according to political will rather than the law. Thus the paid service has itself been very active in the attempts by its political masters to close my blog down.
2017
In late 2017 I made important disclosures concerning the behaviour of Councillor Steve Eling, the (then) political leader of SMBC (and others). Eling was not,of course, an employee of SMBC. Nevertheless the Council used taxpayers' resources to try and save Eling's political neck and to harm me.
2018
Despite the 2017 revelations, Eling remained in post whilst I was subjected to attacks of various kinds.
In November 2018, SMBC purported to use delegated powers to authorise a secret fund of up to £300,000 to secure external "specialist legal knowledge" and to take legal proceedings against me due to alleged harassment of Council employees, and also elected members.
SMBC gave authority to its own solicitors to instruct London solicitors at a cost of up to £150,000.
In addition, Leading Counsel and Junior Counsel were to be instructed, also at a cost up to £150,000.
In the internal application for delegated authority presented by a senior SMBC solicitor, Maria Price (who has issues with me and my blog), no statement is made concerning the legal basis for this apparent gross misuse of public funds for political purposes.
At some point SMBC had a Consultation with Leading Counsel (whom SMBC refuse to identify but have now said was NOT Aileen McColgan QC) who recommended that Howard Kennedy, Solicitors, be instructed. It is not known at present whether the costs of this legal work is included in the figures set out below. The legality of using public funds to instruct the solicitors etc. allegedly in respect of employees AND elected members remains unstated.
The delegated powers were authorised by, inter alia, the (then) SMBC Chief Executive, Jan Britton, who was another senior employee who had a personal and long-standing vendetta against me. He was sacked in disgrace after evidence was found that he had intervened to subvert a standards investigation against a leading Councillor. And SMBC itself reported him to West Midlands Police in respect of his collusion with an employee to "agree" their evidence in a criminal prosecution (where both subsequently lied on Oath in live Court evidence). Britton has been given the opportunity to say why he gave false evidence to the Court but has declined to comment.
Even though the specific delegation was to instruct Howard Kennedy and they were paid £13,756 + VAT, it seems that they may have given SMBC unpalatable advice since the Council inexplicably also instructed Bevan Brittan solicitors, and incurred further costs to the taxpayer of £15,857 + VAT on top.
At this time, SMBC also paid £9,498.50 + VAT to Junior Counsel and £10,882 + VAT to the unnamed Leading Counsel.
No proceedings against me were commenced despite this extensive misuse of taxpayers' money. The inference from this is that SMBC were advised not to proceed in a spurious action for alleged harassment. (Of course, it goes without saying that I deny any harassment of individuals as alleged, or at all,and say that this further attack on me was malicious and politically motivated.)
2019
In 2019 Ms Lisa McNally joined SMBC as its Director of Public Health. She already had a personal Twitter account @LisaMcNally1. Even though SMBC has a plethora of social media channels, McNally chose to increasingly use her personal Twitter account to disseminate public health and other information. This was seemingly condoned by her employers although no employee has been prepared to admit this.
2020 - January 2021
From the summer of 2020 to January 2021 I wrote various blog posts relating to Ms McNally's personal Twitter output and made other comments on Twitter. Once again, her Twitter account was a personal one and nothing whatsoever to do with SMBC. (As we shall see, SMBC has repeatedly refused to accept any legal responsibility for this personal social media output.)
February 2021
On 11th February 2021 SMBC served me with a Pre-action Protocol letter for a High Court Media and Communications claim. The first line of the letter did not state that SMBC purported to act for Ms McNally but stated, "Sandwell Metropolitan Borough Council intends to support potential civil proceedings against you by Dr Lisa McNally, the Council's Director of Public Health, and by its Chief Executive, David Stevens, taken on behalf of the Council's officers and staff."
The first part of the Claim related to alleged harassment of McNally relating to issues raised by her via her own personal Twitter account.
It was alleged that other named employees had made complaints but they were added as a direct attempt to smear me by SMBC and they never became parties to the action. Incredibly one was the Head of Legal at SMBC, Surjit Tour (see further below).
The second part of the claim related to alleged data protection breaches in respect of the repetition of information Ms McNally had herself placed in the public domain - also via her own personal Twitter account.
At paragraph 14 of the Protocol letter under the heading "Prospective claimants", SMBC wrote, "the prospective claimants are Dr Lisa McNally, Director of Public Health at the Council, and David Stevens, Chief Executive of the Council, who sues on behalf of the officers and employees of the Council."
Stevens has himself now been sacked from the Council.
The Protocol letter stated, inter alia,"our position is that the Council has no real option but to support the seeking of injunctive relief against you ... Breach of any such injunction may lead to arrest and conviction, leading to a fine and/or imprisonment. Further, if the prospective claim succeeds, you may also be liable to pay the costs associated with the claim.”
(Of course, the "real option" was for McNally to fund her own vicious and misguided litigation via her own resources (she earns between £105,000 and £109,999 per annum excluding pension rights) or via a conditional fee agreement (although it is unlikely that an independent solicitor would have taken such a malicious and misconceived case on a CFA basis).
The Protocol letter was signed by a SMBC solicitor, Julia Lynch. In accordance with the protocol process I had 14 days in which to respond. In less than 3 hours I responded that the claim would be contested in full and raised a number of issues.
It is not presently known if SMBC were purporting to pay for the prospective personal claim via the unspent residue of the £300,000 funds agreed in the 2018 delegated authority. If not, what funding authority did they claim to have to enter into such expensive litigation?
At this time SMBC were aware of my financial position and that any taxpayers' money expended would be be likely to be irrecoverable in the unlikely event of a successful claim by McNally so that there was clearly a deliberate decision to put a considerable amount of taxpayers' money at risk (something they had clearly been advised not to do when they spent nearly £50,000 of the secret £300,000 fund earlier). This was gross misconduct highly likely to be detrimental to the people of the Borough.
On the following day I confirmed to SMBC that I was seeking professional legal advice.
On 13th February 2021 I reminded SMBC, "you are fully aware of my parlous financial situation." They had direct knowledge of my finances already but this reinforced the point.
Detailed correspondence ensued whilst I continued to seek professional legal help. The position with regard to the exact nature of SMBC's right to even purport to act for McNally remained opaque as did their position in respect of her personal Twitter account and I wrote on 15th February 2021 (before I was legally represented), "Can you please formally confirm as you purport to act for her that McNally's Twitter account is purely personal or, alternatively, that it is an official Twitter account and that SMBC is vicariously liable for her content?" There was no response relating to this highly material question.
On 21st February, 2021 I confirmed that I was still seeking legal representation and requested a 14-day extension of the Protocol period which Lynch quickly, and aggressively, rejected.
On 24th February, 2021 I wrote to SMBC:
"It is quite obvious from what SMBC has attempted in the past that you have been caught out in setting up an unlawful £300,000 fund to attack me and you are now trying to bring a ridiculous claim based on Ms McNally's Twitter account etc in a pathetic attempt to retrospectively justify the illegal fund.
"You are now seeking to use taxpayers' funds to be the arbiter of what has passed between me and Ms McNally via respective personal Twitter accounts. Either Ms McNally's account is personal or it is not. (She says it is but states her job title and regularly publishes SMBC-related material.) I asked you to confirm if her account is officially sanctioned by SMBC so that the Council will be vicariously liable for her publications – you have failed to respond. If you deem the account to be "personal" then you have no locus standi in respect of it. Nor do you have the power to fund purely personal litigation. And Ms McNally is well able to fund her own litigation with a high level of pay as a Director."
Within a day of refusing an extension of time in the Protocol process, SMBC served me with a 529 page bundle of documents described as a "court bundle".
On 25th February, 2021 I wrote to them referring to the the long vendetta pursued by SMBC stating inter alia:
"One of the main problems SMBC has had is failing to come to terms with modern social media. You have been used to having an iron grip on a deferential press and don't like public scrutiny - hence your long history of vicious attacks on me (and my wife even though she is nothing to do with the blog)... SMBC have tried every trick in the book to destroy me.
"Asking the High Court to arbitrate on who said what on Twitter and attacking a well respected and popular blog is not the answer and is a gross misuse of public funds … I do not accept that SMBC has the right to use taxpayers' funds in this way."
In paragraph 4 of the email I once again asked, "I have raised with you in this Protocol process whether you are agreeing that her Twitter account is a personal account unconnected with SMBC but you failed to respond.
"This whole affair is to try and justify the illegal legal fund you set up to screw me and I shall report this and your attempts to silence me and censor my blog as I see fit. You are a wealthy public authority spending taxpayers' money on this and the disclosure of that is clearly in the public interest. (Depending on legal representation I may seek funding by crowdfunder-type appeals to counter your gross misuse of public funds and attempted censorship which will mean putting what you are trying to do to me in the public domain.)
"I note the way you have framed this case as "harassment" which, in itself, shows the weakness of your case. I urge you to reconsider before you waste even more public money on this."
On 28th February, 2021 I wrote to SMBC stating:
"You are very well aware that I have very limited funds and your service of a 529-page bundle is intended to "front-load" costs and prevent me being able to afford legal representation."
I added that much of the bundle was irrelevant to the proposed claim including details of events long before Ms McNally was even employed at the Council and stated that this was clear evidence of bad faith by the Council and its lawyers.
I once again raised the issue of the personal nature of Ms McNally's claim stating,"I have asked you repeatedly to confirm that Ms McNally's Twitter account @LisaMcNally1 is either officially sanctioned and is is an official SMBC account or if it is the personal account of Ms McNally. There are important legal implications to this and you refuse to respond. Why?"
March 2021
On 2nd March, 2021 SMBC sent me an amended particulars of claim, draft penal order and claim form. The amended particulars of claim included a claim for costs against me. As the claim was solely in the name of Ms McNally, SMBC itself having now dropped out of any proposed claim (without explanation), there was no statement of any sort from SMBC as to the legal basis upon which their solicitors sought to represent McNally nor the legality of the taxpayer paying her costs and indemnifying her against mine. Neither did they set out the factual basis upon which they claimed to act for her. This information has never been made available to me nor to my lawyers. The only basis upon which I could possibly be liable for costs was if McNally was in a client/solicitor relationship with SMBC. As McNally clearly had no liability whatsoever to meet the legal costs of SMBC (since she was unlawfully expecting the taxpayer to fund her) then there were no legal costs that she was ever likely to incur for which I would have any responsibility to indemnify her. Thus this was a totally fraudulent claim for costs against me as her Leading Counsel, Aileen McColgan QC, and SMBC’s own solicitors including, Tour, Price, Lynch and Maher-Smith, well knew.
In any event, SMBC had actively conspired with McNally to bring the Claim and so there was no question of them acting in a "solicitor/client" relationship.
On the same date, 2nd March, 2021, I received informal legal advice from a top media lawyer as I desperately continued to seek proper legal representation. I wrote to SMBC, "my current legal advice - from a top media lawyer - is very much in my favour and it is noted that your bundle contains reams of irrelevant and/or prejudicial material. A lawyer states that any judge in the Media and Communications Court will immediately see what you are up to and cut out huge sections of your ‘evidence’ ". (At the same time this was going on, I was also talking to another top media lawyer, Mark Lewis at Patron Law, and eventually instructed him to act for me.)
I added that the whole claim was oppressive and without merit. The response was that SMBC solicitors were pressing ahead with the issue of proceedings.
On the evening of 3rd March, 2021 at 7.49pm SMBC served the issued proceedings. McNally now sought (a) damages; (b) an emergency injunction; (c) a "permanent" injunction and (d) costs.
It is particularly important to note that although no claim for damages had been made in the Protocol process, McNally now sought to claim up to £10,000 damages for herself and she expected the taxpayer to fund her greedy personal claim.
The pleaded claim was in respect of (a) harassment and (b) data breach.
The alleged "data breach" claim was allegedly pleaded by Aileen McColgan QC (and she put her name to it in any event) but was not followed up in the Prayer for Relief and was left "hanging" in legal limbo - which caused concern and expense to my legal team (and, therefore, to me).
McNally's supposed acting solicitor at SMBC - or one of them - Julia Lynch, failed to serve the application in respect of the emergency injunction even though a penal order was sought. (SMBC later purported to serve the same on my solicitor.)
Even the time of service of proceedings by email at nearly 8 in the evening on an unrepresented person was a deliberately aggressive act by Lynch and her SMBC associates.
SMBC served me on 4th March, 2021 with notice that the emergency injunction application had been listed on 16th March, 2021 with only a 1 hour time estimate despite the considerable amount of documentation (529 pages) served by SMBC and the detailed defences I had put forward during the Protocol process. As above, details of the hearing were sent to me when I had not even been served with the actual application.
I acknowledged service of the proceedings and, having agreed terms with Mark Lewis, solicitor of Patron Law, he dealt with all further procedural issues.
I believe that the Protocol process was a charade and that McNally and SMBC intended to issue the proceedings, at taxpayers' expense, come what may, and without regard to the potential costs to the public purse.
Having finally been able to secure the services of a solicitor on 4th March, 2021 there was now great urgency since the claimant was pressing ahead with her application for an emergency injunction on 16th March, 2021 ie. just 12 days later.
On 8th March, 2021 my solicitor wrote a robust letter to SMBC's solicitors in particular concerning the wholly inadequate time estimate of one hour for the contested hearing due on the 16th. He added, "we are bemused that evidence has been given by other people which has no relevance to this claim at all … We object to the reliance upon impermissible evidence of such individuals."
My solicitor also stated,"you should also disclose where (sic) the Sandwell MBC is funding this case and therefore liable for any adverse costs orders … Please confirm the position and if it is the case that (contrary to the impression given) Ms McNally is the Claimant and she accepts that she will be liable for the costs …"
On 9th March, 2021 Lynch of SMBC replied stating:
"The claimant in this case is Lisa McNally, an employee of Sandwell Metropolitan Borough Council. A decision was made that the Director of Public Health, Ms McNally be indemnified, in accordance with the Local Authorities (Indemnities for Members and Officers Order) 2004 in respect of this action."
This letter from Lynch is important since it was absolutely specific as to the statutory provision upon which SMBC's solicitors purported to indemnify Ms McNally in respect of her personal claim. There was no statement relating to the legality of them - in their capacity as solicitors - purporting to act for McNally and all the professional conduct issues arising therefrom save for a bland statement that, "The Council supports Ms McNally in this claim, pursuant to its duty of care towards her." There is no explanation whatsoever - and never has been - why the Council had a duty of care in respect of what the Claimant was writing on her personal Twitter account. There is no evidence yet of how the "authority" to bring the personal claim was given internally at SMBC or who made that unlawful decision. The truth, as told by McNally herself in one of her High Court statements, was that she had actively colluded with David Stevens (the now dismissed Chief Executive) and Surjit Tour (Solicitor, Head of Legal and Monitoring Officer) at SMBC to bring the malicious claim on or around 27th January, 2021. SMBC "had skin in the game".
On 9th March, 2021 Julia Lynch wrote this nonsensical statement to Patron Law: "the council has provided an indemnity in relation to the Claimant's costs, which covers any liability for costs should the claim not succeed."
No copy of the indemnity given by SMBC to the Claimant was supplied. No copy of the indemnity decision has been made public. In any event, we were clearly and repeatedly questioning the lawfulness of the purported “indemnity”.
Further communications ensued and on 11th March, 2021 my solicitor again wrote to Julia Lynch concerning the "emergency" hearing - now just 5 days away - again stating, "The time estimate given is inadequate."
Patron Law instructed Richard Munden of 5RB Chambers in respect of the "emergency" injunction. His immediate view was that I was in a strong position overall. At this point in time, of course, the hearing of the emergency injunction application was only days away. My solicitor, Mark Lewis, pointed out that SMBC had instructed Leading Counsel so that we would have to "fight hard". Mr Munden's Clerk advised that he would be required to work on the case over the weekend and required an immediate agreement as to fees. At this point, and due to the constraints of time, I had prepared a very detailed statement which was submitted to Counsel. In it, I had sought to counter the irrelevant and prejudicial material contained in the Claimant's 529-page bundle.
Mark Lewis informed me that SMBC would neither agree to an adjournment in respect of the "emergency" application given the inadequacy of the time estimate nor agree to withdraw the "emergency" application altogether. Accordingly, he briefed Counsel and arranged a Conference with Counsel. Suddenly on Friday 12th March, 2021, whilst our Conference was underway McNally withdrew her absurd "emergency" application. Bizarrely, this was communicated to the Court, and to my legal team, via the Clerk to Aileen McColgan QC. There was no offer made at this stage in respect of my wasted costs in defending the malicious and erroneous application.
Mark Lewis served a cost schedule on SMBC in respect of my wasted costs. On 15th March, 2021 he wrote to Julia Lynch and Vanessa Maher-Smith (a fourth SMBC solicitor now involved in this matter) and stated:
"So that Ms McNally is not under any illusions it will be our intention to seek to strike out the entire claim or seek summary judgement. I would hope that upon reflection she will decide to discontinue the claim. I am not certain set [sic] [that] your powers extend to paying Ms McNally's costs for what is a private action rather than the defence of an action brought against her as an employee and therefore reserve the position against her if it is necessary to enforce a costs order against her. I simply draw this to your attention at this stage so that Ms McNally is aware of the position.
"If you have advised Ms McNally that you are entitled to act, you might want to tell her to take independent advice."
Bizarrely, SMBC stated that they did not agree that "we" (ie. it) should bear my costs in respect of the "emergency" application despite their unilateral withdrawal of it!
Meanwhile on 14th March, 2021 I wrote to the external auditor of SMBC, Mr Mark Stocks of Grant Thornton with whom I was already in communication with regard to the legality of the £300,000 legal fund (see above):
"I am sure that you are aware (that) SMBC are spending huge sums (including on Queen's Counsel) in indemnifying a well-paid Director to sue me after I commented on matters arising in her PERSONAL Twitter account … SMBC are purporting to utilise a large amount of public funds on this pursuant to The Local Authorities (Indemnities to Members and Officers) Order 2004 which clearly does NOT apply here … even if SMBC think there is some sort of clever argument against this, the Director's Twitter account is a personal one and not a SMBC one. Thus this large expenditure (and indemnity) is ultra vires SMBC'S powers."
(There followed further correspondence with Mr Stocks who claims that it is up to me to prove that the Council has acted unlawfully even given his role as the statutory protector of the public purse in Sandwell. Having established that I do not live in the Borough he then refused to have further contact with me unless authorised by SMBC - knowing full well that such authorisation would not be forthcoming.)
On 16th March, 2021 (whilst the costs arguments continued) Mr Munden recommended a strike out/summary judgement (SO/SJ) application (as also suggested by Mark Lewis) but wrote:
"Annoyingly, the Particulars of Claim also include a GDPR claim. It is thrown in at para 34, and it is clearly objectionable as inadequately pleaded. That claim appears to seek damages, despite the prayer only referring to an injunction."
The problem with this, of course, was that additional costs were expended unnecessarily in dealing with this aspect of the matter.
April 2021
The SO/SJ application was duly served on 1st April, 2021 and my supporting statement included the following:
Para 45: "My comments relating to the Claimant all relate to her own social media activities and her use of other media and not in respect of any specific thing she has done or not done in the course of her employment … I therefore cannot understand how it is legitimate for SMBC to be funding this claim) particularly as they advertised in their management structure chart [exhibited therewith] that she earns £105,000 to £109,999 per annum + pension etc and one imagines that she is well able to fund litigation about her own social media herself. This is clearly another attempt by SMBC to cause me damage and stop the Blog from subjecting it to scrutiny."
At para 48 of my statement I set out the personal nature of the Claimant's claim:
"My journalism and comments concerning the Claimant falls into three categories: (a) reaction to her social media post about her mental health; (b) comment on her social media campaign to block any Twitter user following me; and (c) my comments about her use of social media to promote teachers in the pecking order for Covid vaccination."
[Incidentally the last point about teachers was NOT official SMBC policy.]
In other words, my writing was reacting to matters she, herself, placed on her personal social media account.
In para 49 I added,"As SMBC purports to act for her in respect of her use of her own social media, I asked them in correspondence for any evidence that she had complained to Twitter or to me, and no such evidence was forthcoming."
I then returned to the question of costs:
Para 53: "Here the Claimant is using what she says is a personal Twitter account. Her profile reads, 'Director of Public Health for Sandwell. Luvs running and worrying about stuff. Views are mine. Not my employers'. In the premises I fail to see why SMBC is funding her litigation with taxpayers' money in respect of her personal use of social media ... The Claimant could use official channels but specifically chooses to go off-piste."
And again at para 68: "As we have seen, the Claimant has chosen not to work through SMBC's normal media channels but off her own bat, from her personal accounts."
I referred extensively to a minor Twitter spat where McNally started blocking my own followers. I wrote at para 78: "I am frankly amazed that a minor Twitter spat like this should be before a High Court Judge, funded by the taxpayer."
As above, McNally admitted that she worked with David Stevens and Surjit Tour to bring her malicious claim and I stated at para 91:
"The claimant cannot bring a defamation claim since what I have written is true and so a spurious belated "harassment" claim has been cooked up, with SMBC throwing in huge dollops of years old partial and prejudicial material. They appear to be using taxpayers' funds to fund the claim they wanted to bring 3 years ago but had nothing to hang it on."
And the para 98 I added: "The Claimant's claim simply does not stack up and SMBC is using it as a proxy for their long-standing and vicious vendetta against me hence the huge amount of partial and prejudicial material produced."
After the SO/SJ application was served, Mark Lewis also provided a statement in respect of the costs of the abandoned "emergency" injunction application wherein he again referred the Court to the fact that the GDPR claim had not been properly set out (by McColgan QC). He took issue with the fact that the claim was "funded and run by the Council itself" and also that SMBC had introduced “a considerable amount of extraneous material into the hearing bundle. Indeed various incidents relied on by McNally did not even relate to her."
Back in March I had attempted to write to the (then) Leader of Sandwell Council about the unlawful use of taxpayers' money for this private action. She had made it plain that she was quite happy for public funds to be used to destroy me and my blog. She claimed she did not receive the original letter and so I hand-delivered a copy on 13th April, 2021:
"... As you will be Leader of the Council for another month or so at least and as you are personally condoning and, indeed, encouraging unlawful activity by SMBC I am sending you The Local Authorities (Indemnities for Members and Officers) Order 2004.
"You should already be aware of this legislation but it is very important to me that you - as the political
head of the Council - are fixed with notice of the terms of this Order at least from the dates of receipt of this letter."
Cllr Crompton did not, to my knowledge, make any attempt whatsoever to halt this grossly ill-advised claim.
May 2021
Crompton was replaced as Leader by Cllr Rajbir Singh, who had only been on the Council for 3 years and was deemed by most to be very inexperienced in local government.
On 24th May, 2021 I wrote to Cllr Singh:
"As a cabinet member you will be aware of what Stevens and Tour are up to using public funds to finance a case against me brought by Lisa McNally in her personal capacity.
"You obviously approve of that and will face any adverse consequences but now you are Leader you need to be personally aware of the specific statutory regulation Stevens is relying on to put at risk huge sums of public money.
"I don't expect you to get involved in direct legal issues but I need to have proof that YOU are personally aware from this date of The Local Authorities (Indemnities for Members and Officers) Order 2004 (I included a direct link to the Regulation.)
"You do not have to be a lawyer to see that the Statutory Instrument does NOT permit Stevens to act as he is. The Order is very straightforward but if it doesn't make sense to you many councils have put commentaries of it on the internet easily available via a Google search."
Cllr Singh also ignored this when there was still time to stop considerable further waste of public money and, indeed, my money.
June 2021
The SO/SJ hearing was listed for 21st June, 2021. In addition to the original bundle SMBC had served of 529 pages, it served another 200 pages. In the bundle, Lynch included clearly marked "without prejudice" communications dating from the Protocol process (when I was unrepresented), seemingly in a deliberate attempt to harm and prejudice my case. She also referred to these communications in a Statement she provided to the Court in a further attempt to damage me.
And then McNally finally dropped her absurd Data Breach claim, though with no explanation. On 11th June, 2021 Patron Law wrote to SMBC including comments on costs:
"We are similarly confused about your reliance on the Local Authorities (Indemnities for Members and Officers) Order 2004 (LAIMO). LAIMO clearly provides for identities to officers and members defending claims, it does not exist so that they can pursue actions. We must make it abundantly clear that (as is typically the case) we will be seeking a costs order against the Claimant, so that there is no doubt, we must put you on notice that any payment by the Local Authority is opposed and the rights are reserved against anyone who has been in receipt of such funds. Likewise, it follows from the nature of the retainer that you have revealed that there is no obligation on your client to pay your costs and as such pursuant to the Indemnity Principle your client would never be able to seek any costs from our client."
Once again this was endorsing the comments I made (see above) and another clear warning to SMBC that, even in the unlikely event of McNally’s malicious claim succeeding, she or the taxpayer would have to meet SMBC's own costs.
In the Claimant's bundle Aileen McColgan QC purported to justify the alleged indemnity provided by SMBC to the Claimant. In her (second) skeleton argument at para 22 she stated:
"The basis on which the Council has chosen to indemnify the Claimant in respect of the costs of this claim is set out in the Witness Statement of the Council's Chief Executive, David Stevens, who explains that the harassment suffered by the Claimant has been because of her role at the Council, and that the council has a duty of care towards her. The Defendant was free to attack that decision directly by way of judicial review and has not done so. If and to the extent that this complaint is that the claim is an abuse of process by pursuit of a collateral process it is wholly without merit."
She cited The defamation case of McLaughlin & Ors v Lambeth and Anor (2010) EWHC 2726 (QB) although McNally’s was not, of course, a defamation action.
Leading Counsel has let slip here the game plan of herself and SMBC. The Claimant and her legal team knew full well that I was under severe financial strain and that there was no question of me bringing a separate judicial review claim in respect of costs. I say that this was fully understood by the Claimant and her lawyers from day one and it is noteworthy that this was only raised by the QC very shortly before the listed hearing.
In any event, how could I launch a Judicial Review without asking for the legal justification from SMBC of their prima facie unlawful conduct - something which they were deliberately not providing?
It cannot be right that a public authority such as SMBC can, yet again, deliberately act unlawfully and then say to its victims, “if you don’t like it, sue us.”
It is curious that Leading Counsel referred to collateral purpose when she was aware from the Witness Statements that McNally had colluded with David Stevens and Surjit Tour to bring this malicious claim with the direct collateral purpose of causing me reputational and financial harm and with the intention of destroying my blog. She was also well aware of this from my Protocol and other "defences".
There does appear to be a dearth of case law on The Local Authorities (Indemnities for Members and Officers) Order 2004 (LAIMO) but two legal opinions are widely available on the internet relating to it. Both Opinions are from QC's from 11KBW - the Chambers of Aileen McColgan QC herself.
(Further comment on one of the Opinions - that of Tim Kerr QC is set out below.)
In a second statement from David Stevens dated 9th June, 2021 he again specifically stated that the Council had provided an indemnity to McNally specifically pursuant to LAIMO. He makes no comment on why McNally could not bring the claim in her own right.
The SMBC solicitor, Lynch, also provided a statement dated 9th June, 2021. In respect of the question of whether McNally's Twitter account was a personal one, she made this comment on matters that are raised in the Protocol process without deigning to provide an answer for the Court:
"... Instead he demanded to know whether her 'Twitter account is purely personal, or alternatively, whether it is an official Twitter account and that SMBC is vicariously liable for her content ..'"
She quoted a further comment that I made that the Protocol letter referred to a "ridiculous claim based on Ms McNallys Twitter account etc" and that the Council was, "seeking to use taxpayers' funds to be the arbiter of what has passed between me and Ms McNally via our respective personal Twitter accounts". Having put forward these points to the Court, Lynch makes no observation on the veracity of them. I say that this is, of course, because my statements were true and that both (a) acting for McNally was professionally wrong and (b) funding her personal action was unlawful.
As above, Lynch had deliberately placed before the Court information relating to without prejudice discussions and negotiations despite the fact that she herself quoted correspondence clearly showing that I was unrepresented and urgently seeking legal advice. This is a matter for separate complaints to the appropriate bodies. Three days before the hearing a Paragraph from her statement was removed from the hearing bundle plus “without prejudice” correspondence, once again after my legal team incurred extra work and costs.
(Incidentally, at the SO/SJ hearing Aileen McColgan QC handed my Counsel a single page document from the bundle which she acknowledged had also been inappropriately included as it was clearly a without prejudice document. But such deliberate misuse of the court process by Lynch was not confined to that single page as shown above.)
On 8th June, 2021 Lynch wrote to the Court expressing a preference for the SO/SJ hearing to be held in person rather than virtually. No explanation was provided for this contention.
In her second skeleton argument Aileen McColgan QC formally withdrew her spuriously pleaded data protection claim as follows:
"The Claimant is however content to proceed with her claim under the PHA alone and withdraws her Data Protection Act claim in order to limit costs."
Of course, my legal team had already incurred costs in dealing with this ludicrous aspect of the matter before this very late concession.
Also in her second skeleton argument dated 17th June, 2021 (just 4 days before the hearing) Aileen McColgan QC made the extraordinary statement at para 27 that,"the Claimant shared her history of mental ill-health in her capacity as a public servant …" The video to which Leading Counsel refers was placed on McNally’s own personal Twitter account. SMBC persistently refused to "own" her personal output as McColgan QC was well aware. Indeed McColgan QC had badly pleaded the spurious data protection claim on the basis that the tweet and video detailing mental health problems was specifically McNally's personal data!
At this stage, Aileen McColgan QC was still arguing that, in the event of the Claimant being allowed to proceed, there should be no award for costs to me in respect of the aborted claim by the Claimant for an "emergency" injunction despite it being unilaterally withdrawn via her Clerk. Rather, those wasted costs should fall to be treated as cost in the case. This was clearly another attempt by McColgan QC and SMBC to prevent me from securing funds which might allow me to continue to defend myself if the SO/SJ application failed.
On 18th June, 2021 just 3 days before the hearing the High Court decided that the hearing would be in person in London thus increasing the costs for the parties.
July 2021
In mid-July the Court struck out McNally’s malicious claim. Immediately SMBC and Aileen McColgan QC took issue with the total amount of my costs.
On 15th July 2021 Aileen McColgan QC herself wrote to the Court and stated, inter alia:
"The amounts claimed for Counsel's fees (£23,400) is £13,400 more than those incurred by the Claimant in respect of senior Counsel and equates to over 46 hours' work even at a notional rate of £500/hr."
This is a grossly misleading representation to the Court and I cannot understand a QC’s motivation for this. McColgan QC knew, or ought to have known, that there was never any intention that McNally would pay her own costs or my costs and that the taxpayer was to be shafted for the whole sum. McColgan QC was not, of course, being paid by the taxpayer solely for the SO/SJ hearing. She has been involved in the case for some months. She had been party to the decision to seek an emergency injunction in the most draconian terms even though she was aware that I had never even met the Claimant. She caused or permitted highly prejudicial and irrelevant evidence to be included in the hearing bundle for the emergency application including allegations against me by non-parties in an attempt to intimidate me and also to “front-load” costs in the hope that I would simply cave in. The application was, of course, eventually withdrawn at short notice by her own Clerk.
McColgan QC caused or permitted the absurd data breach claim to be put forward and, indeed, put her name to an extremely inadequately pleaded claim in this regard claiming that I had breached the Claimant's data protection rights whilst changing the story just before the SO/SJ hearing to say that the same matter complained off had actually been put in the public domain on behalf of the Claimant's employers (which was untrue and which they refused to accept). In any event, she also formally withdrew this absurd claim.
At the hearing itself Aileen McColgan QC appeared to resile from other elements of the pleaded case and appeared to rely solely on a spurious allegation that comments I made concerning the Claimant's self-described mental health issues constituted harassment.
She specifically appears to claim a higher fee rate than Mr Munden solely on the basis that she has taken silk and even though Mr Munden's performance was superior in every regard and in particular in respect of the preparation of skeleton arguments and advocacy at the hearing itself.
She submitted to the Court the misleading statement that her brief fee for the hearing was £10,000 yet failed to inform the Court of the other substantial fees she expected the taxpayer to pay her in the event that McNally lost. A Freedom of Information Act request to SMBC confirms that, in fact, Aileen McColgan QC has presented fee notes to SMBC for the taxpayer to pay in the sum of £40,717.50 (plus VAT) - over four times more than the alleged hearing fee.
My Counsel, Mr Munden, in his costs submissions referred to McColgan QC's involvement in the case throughout its course as "a running start".
I believe that McColgan QC knew what she had done. She did not exactly correct the statement she had made in writing to the Court but was more circumspect in her final submission on costs dated 22nd July, 2021:
"It is the case that the claimants representatives had the benefits of longer engagement with the case …"
I had a solicitor present at the hearing and McColgan QC griped about the costs whilst admitting that, for some inexplicable reason, she had TWO senior solicitors from SMBC sitting behind her on the day - which SMBC apparently considered reasonable use of taxpayers' funds. The train fares alone for Lynch and Maher-Smith to attend we're an incredible £450 (SMBC are refusing to say whether this was for first class travel.)
The Judge summarily assessed the costs leaving me with a very substantial financial loss (yet to be finally quantified).
August 2021
It became apparent that SMBC were indeed planning to use taxpayers' funds to cover McNally's costs - both their own and my costs. On 12th August 2021 Patron Law wrote to SMBC:
"Despite costs being assessed, your client has not made payment. Given the duties upon us to ensure that the source of funds is legitimate, would you please ensure that such payment is made by Ms McNally and not by your local authority. As you will appreciate, neither this firm nor your in-house lawyers can be part of such an unlawful scheme.
"There is good reason why the local taxpayers should not subsidise the misplaced adventures of Ms McNally. If contrary to our position, payment is made by SMBC, our client will be pursuing this matter with the appropriate authorities and reserves the right to report the conduct of any individual who aids and abets the misuse of public funds. You are on notice."
On 16th August, 2021 SMBC purported to pay the costs awarded to me in excess of £49,000 on behalf of McNally via a BACS payment to Patron Law.
On the same date a new solicitor at SMBC, Maria Price, responded. It is inconceivable that she had not been au fait with this litigation throughout giving her long-standing personal vendetta against me on behalf of SMBC:
"However, we do not accept what you say about the lawfulness and appropriateness of the Council's funding of that cost payment in accordance with the indemnity it provided to Ms McNally. Your client's success in this claim does not entitle him to dictate that the Council should not provide such an indemnity; this is not a matter for him. Moreover, the Council made a reasonable and lawful decision based upon many factors including the Council's duty of care as an employer and Counsel's advice. The indemnity was provided to Ms McNally pursuant to Local Authorities (Indemnities for Members and Officers) Order 2004 and s.111 of the Local Government Act 1972 and its general power of competence under s.1 of the Localism Act 2011. Your suggestions that the Council has acted unlawfully are misconceived."
Patron Law responded on 27th August,2021 after being accused by SMBC of being "aggressive":
"From the outset your Authority threatened our client with an injunction that could culminate in imprisonment but had the temerity to accuse our client of being aggressive. This is a complete lack of self awareness.
"The suggestion that opposing the threat of imprisonment was aggressive was as improper as your suggesting that expressing valid concern that the payment to us by your Authority is likely to be unlawful, was improper. We are holding payment until the lawfulness of the payment is resolved and if the transaction is cancelled because it is unlawful then we will proceed to enforce against Ms McNally. It is not only permissible to take that approach, but the only proper approach for us to take in these circumstances. We will not be bullied into waiving our proper concerns.
"Throughout this matter you have claimed that The Local Authorities (Indemnities for Members and Officers) Order 2004 applies. We do not agree.
"The claim related to our Clients comments in relation to issues she raised via her personal Twitter account. During the Protocol process our client repeatedly raised this and you had no answer and so ignored him. She was not, in any sense, exercising a function of the local authority when Tweeting on her own account. Moreover, the action was not defensive where the authority sought to indemnify an employee who was sued in place of her employer for an act that was within the scope of her employment.
“It is not just that SMBC's actions are ultra vires, the fact is that you were bringing a personal claim on behalf of an individual where there was no benefit to the people of the borough. It was a purely personal matter. Indeed, McNally amended her draft pleading to seek personal financial gain by adding a claim for damages of up to £10,000."
Patron Law went on to refer to the Opinion of Kerr QC widely available on the internet. They pointed out that his principal advice this was:
1. " A local authority can only indemnify an officer to bring a claim (as opposed to defending one) under the 2004 Order in "exceptional circumstances"; This claim was dismissed, it can hardly have been exceptional as it had no merit; and
2. The attempt to avoid the 2004 Order by pursuing a claim for harassment in place of a defamation claim was "unwise" and "artificial"."
They continued:
“Frankly, you ought to advise Ms McNally to take independent legal advice, rather than covering up the loss by asking local taxpayers to compensate for the negligence. The costs order was made against Ms McNally. You made no submissions against that proposition."
September 2021
On 2nd September, 2021 Price replied:
"... We note that you persist with your allegation that the Council's provision of an indemnity to Ms McNally is unlawful. We have already explained that the allegation is misconceived. We note that the basis on which you persist with your allegation is that the substance of the litigation concerned Ms McNally in her personal capacity rather than in her capacity as an employee of the Council. That is misconceived: the Council was ( and is) satisfied that, notwithstanding the outcome of the litigation, there was a sufficiently strong and direct connection between the matters that concern Ms McNally and her work with the Council. Indeed your Client's application for summary judgment succeeded in significant part because of the connection between the matters complained of and Ms McNally's public role for the Council, see for example paragraph 84 of the Judgment. The Council remain satisfied that its indemnity was provided lawfully, and your allegations to the contrary are wrong."
(Incidentally, I dispute the relevance of paragraph 84 which simply states that public servants should be subject to thorough scrutiny where performance is in the public interest.)
Clearly I do not agree but there is any connection as alleged or at all between McNally's use of her personal Twitter account and her role as a Council employee. Indeed SMBC regularly refused to admit that the Twitter account was anything other than McNally's personal one. Any finding to the contrary would have widespread ramifications across the land if councils could pick and choose which parts of personal social media accounts they felt like indemnifying. (In any event there was a conspiracy here with senior management and politicians for the purpose of destroying me and my blog.)
Mark Lewis replied by asking for a personal warranty from any one of the four (at least) SMBC solicitors responsible for this debacle that the costs payment is legal. No response has been forthcoming and that is where matters stand as at 27th September, 2021.
Besides serious financial loss despite winning ALL aspects of the case I had to go through a period of immense personal stress.
It is important to remember the malicious intent of this litigation and the collusion between Councillors and Officers (including Solicitors) at SMBC.
In his submissions to the Court, Mr Munden, made these very proper points:
"The relief sought in the claim was of great importance to the Defendant, a private individual. The Claimant, supported throughout by the Council (who have for years been trying to close the Defendant's blog) sought not only damages, interest and costs (which would have been very substantial had the matter continued), but also a wide-ranging injunction... the breach of which could have seen him imprisoned for five years.
"The matter was complex and specialised, being a claim in the Media and Communications List of the High Court raising particular freedom of expression issues. (And he pointed out that McNally had "chosen" to use Leading Counsel throughout.)
"The matter was also very important for the Defendant's reputation. If he had been found to have unlawfully harassed the Claimant, in addition to the financial and injunctive consequences, that would have been highly damaging to his reputation and would likely have made it very difficult for him to continue his journalism. The freedom of expression element in respect of bloggers (especially on political matters) raised issues of public importance.
"In the circumstances he was entitled to use specialist Media solicitors and counsel …"
At some point after the hearing McNally changed her Twitter profile making it crystal clear that it is a personal account:
"Tweets about Public Health, Running, Everton, Sandwell and Scrumpy the Dog.Views mine, not my employer's. As well you know".
The Judge was aware that I had released equity in my home to pay for a proper Defence but still reduced my costs significantly knowing this would cause serious harm.
Appendix 1
The Local Authorities (Indemnities for Members and Officers) Order 2004
This Order gives a specific power for authorities or authorities to grant indemnities and / or take out insurance to cover the liability of councillors and officers in a wider range of circumstances than under earlier 1875 legislation.
The relevant parts of this short Order are:
“Cases in which an indemnity may be provided
5. Subject to article 6 below, an indemnity may be provided in relation to any action of, or failure to act by, the member or officer in question, which -
(a) is authorised by the authority;
(b) forms part of, or arises from, any powers conferred, or duties placed, upon that member or officer, as a consequence of any function being exercised by that member or officer (whether or not when exercising that functions he does so so in his capacity as a member or officer of the authority)-
(i) at the request of, or with the approval of the authority, or
(ii) for the purposes of the authority.”
It is abundantly clear that McNally set up a personal Twitter account long before her employment even commenced with SMBC and it is clear from the main body of this complaint that her use of her Twitter account was entirely personal. Indeed, McNally specifically stated this in her Twitter profile. Further, SMBC repeatedly refused to confirm that this personal account was in any way an "official one" which is not perhaps surprising noting McNally’s abusive tone to some other users.
It is arguable whether article 6 (1) applies here in that there may be an argument that McNally's use of her Twitter account constituted "recklessness" giving her use of it to abuse sundry third parties.
Article 6 (3) makes a specific provision in respect of defamation cases and states in clear terms that no indemnity may be provided to an officer in respects of bringing any action for alleged defamation though such indemnity may be provided in relation to the defence of an officer in respect of a claim of defamation made against him/her.
This case, of course, is one where SMBC have unlawfully attempted to fund a Claim by McNally rather than to indemnify her defence of a claim brought against her.
This case was artificially manufactured as an harassment claim in a deliberate attempt to bypass this statutory provision.
All this is, of course, academic since the matters complained of by McNally related to purely personal matters and not in relation to SMBC policy or to her employment with the Council. The decision to provide an indemnity was ultra vires the power of the Council or alternatively, Wednesbury unreasonable (particularly noting that the commencement of litigation arose from a conspiracy between McNally and senior managers for the collateral purpose of damaging me and closing down my blog).
There appear to be very few reported Court decisions in respect of this provision, possibly because it is so clear on its face. On the internet, however, an Opinion from Leading Counsel, Tim Kerr QC, was made public in 2013 by Carmarthenshire County Council in respect of a notorious defamation case. This opinion relates to (a) a defamation case and (b) to the Welsh version of the English 2004 Order but contains legal opinion of note in respectof the attempt to avoid the statutory provision by framing the case as an harassment claim rather than a defamation one.
Kerr QC is from the same set of Chambers as Aileen McColgan QC. He opined:
"As to the possibility … of an alternative action such as a claim for harassment: in my view that would have been unwise, artificial, considerably more expensive and even a possible abuse of process …"
Of course, the proper course of action for McNally here if she was intent on pursuing her malicious claim was to fund the litigation herself (she is a high-earner) or to proceed via a conditional fee agreement (although it is unlikely that an independent solicitor would have taken such a malicious and weak case on a CFA basis).
End.
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