Following a case before the Information Rights Tribunal it is now known that Anya Proops KC (then QC) advised a Local Authority (LA) that it could use public funds to fund litigation by an officer (i.e. employee) in respect of issues relating to the use of her personal (non-work) Twitter account.
Legislation
The Local Authorities (Indemnities for Members and Officers) Order 2004 permits a LA to pay for a member/officer to defend a defamation claim, but not to bring one, and also as follows:
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; or
(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 function he does 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.
Background
In 2017 the (then) Leader of Sandwell Council (Cllr Steve Eling - subsequently disgraced) was fighting for his political life following serious disclosures about him by a blogger. He re-employed a Solicitor, Surjit Tour, this time as Head of Legal and statutory Monitoring Officer. Tour was specifically tasked with destroying the blogger. Following threats of legal action by Tour he instructed external solicitors and “specialist Counsel” to pursue a claim of harassment against him (no defamation action could be considered as the blog posts were factually true). He secured the Labour Council’s agreement to set up a £300,000 fund for this purpose.
The Council appointed not one but two firms of external solicitors (for reasons unknown) and instructed Ms Anya Proops and Junior Counsel. Proops QC (as was) supplied an Opinion (the 2018 Opinion). No litigation was forthcoming following this. Two Freedom of Information Act (FOIA) requests determined that Tour spent £49,993.50 + Vat on these external lawyers as part of this vendetta. Despite using two firms of external Solicitors, Tour’s internal legal team also spent an incredible 279 hours and 54 minutes on this crusade.
Facts
In 2019 Sandwell employed Lisa McNally as Director of Public Health - a politically-restricted post (see below) with a salary of between £105,000 and £109,000 per annum. McNally was a prolific user of a personal Twitter account and, during the Covid pandemic, her tweets brought her to the attention of the blogger, who wrote critical posts concerning her social media output. In early 2021 she conspired with Tour and the (now-disgraced) Sandwell Chief Executive, David Stevens, to bring an harassment action against the blogger. She brought the action in her own name, but Sandwell’s own internal Solicitors placed themselves on the court record as acting for her, and also funded her. Tour did not advise McNally, or the Council (effectively his “client”), that she should use her own resources if she wished to start legal action in respect of her personal use of Twitter (again, for reasons unknown).
The blogger was aware that the (then) Acting Leader of the Council, Cllr Maria Crompton, authorised the use of taxpayers’ funds for this adventure. Both she and the Council refused to provide any reason for this. Tour, and the political leadership, then blocked a FOIA request into the advice given to the Acting Leader on the ground of “legal professional privilege”, and the ICO supported this contention. The blogger appealed to the Information Rights Tribunal.
In a consent order concluding the Tribunal issue, Sandwell admitted that Surjit Tour himself had informed the Acting Leader that the 2018 Proops Opinion permitted the Council to fund - and indemnify - McNally despite the fact that the issues arose from her use/misuse of her personal Twitter account. As above, he did not advise Crompton that McNally should use her own funds to pursue her action (and the Cllr seemingly did not raise this).
Sequalae
Proops QC (as was) of 11KBW was not instructed in McNally’s action. Instead Tour made the disastrous decision to instruct Aileen McColgan QC (now KC - also of 11KBW) instead. McNally, via McColgan, applied for an emergency injunction with penal notice against the blogger to be followed with a permanent injunction. McColgan added a bizarre claim for breach of McNally’s data protection rights claiming that it was impermissible for the blogger to comment on issues which McNally herself placed on her personal Twitter site. Between the end of the protocol period and the issue of proceedings - and despite the fact that her case was being publicly-funded - McNally added a claim for £10,000 personal damages.
The blogger has disclosed multiple examples of corruption and wrongdoing at Sandwell Council (currently in Government “special measures”) the majority of which involved male councillors and officers, but McColgan chose, for whatever reason, to plead the case as a “misogynistic” attack on a female employee.
The blogger instructed Mark Lewis of Patron Law and Richard Munden of 5RB. Almost immediately McColgan dropped the emergency injunction application but continued to seek a permanent injunction, damages for the “data breach” and personal damages for McNally. Lewis immediately applied to strike out the action. Shortly before the hearing Ms McColgan also withdrew the data breach claim. Following an oral High Court hearing the case was duly struck out. On the basis of the 2018 Proops Opinion, and Tour’s statement that her advice permitted the Council to use taxpayers’ funds for this third party litigation, Tour caused a further substantial loss of public funds - £49,747.20 to the blogger and £53,446.57 ex. Vat in respect of the Council’s own costs supporting McNally’s personal litigation (and this latter sum is almost certainly an understated figure).
Comment
The case law is very sparse on the use of the statutory indemnity but there are published Opinions online from James Goudie (QC) and Tim Kerr (QC) relating to the Welsh iteration of the Order. (Both Leading Counsel at the time were members of the same chambers - 11KBW - as Proops and McColgan.)
Clearly when Ms Proops was instructed in 2018, McNally had not even been employed by Sandwell. It is hard to see how Proops was able to conclude that the statutory Indemnity extended to officers when acting in their personal capacity -something s.5 of the Order (set out above) does not appear to permit. Nevertheless, Tour has informed the Information Rights Tribunal that was her Opinion (at least in 2018).
It is noteworthy that Sandwell Council refused to accept vicarious liability in respect of the contents of McNally’s personal Twitter account.
Clearly all users of social media need to exercise caution when engaging with the personal social media accounts of members and employees lest they face oppressive, taxpayer-funded, litigation. This begs the question of what would happen if it is not clear that a social media user is even employed by a local authority when discussing Council issues? As far as members are concerned there are also numerous incidents of abusive councillors avoiding formal standards complaints on the basis that their social media use is purely “personal”.
We are inviting the Secretary of State for Levelling Up to review the terms of the statutory indemnity since it is our view that the 2004 Order did not contemplate taxpayer-funded litigation by local authority employees in respect of their personal social media output - yet that view is what Tour, and other Sandwell Solicitors, told the Tribunal was precisely what Ms Proops contradicted in her Opinion.
And finally …
This case threw up another aspect of legal interest. As above, McNally agreed to be employed as a politically-restricted officer, but used her personal Twitter account to air political issues - an issue the blogger commented upon. Tour actively backed her right to do this, and McNally herself told the High Court:
“There can be no doubt that the role of DPH at this time [the Covid pandemic] does draw one into issues that others may label as political. However, it is not political for a DPH to highlight and respond to problems in the national response to a pandemic (indeed, it could be perceived as an inappropriately political act to remain silent when we do identify problems”.
Whether she aired her frequent criticism of the Government via official channels is not known, but she certainly considered it legitimate to do so via her personal Twitter account.
We are also raising this issue with the Secretary of State since, once again, the current legislation is seemingly not fit for purpose, and some local authority employees apparently consider that they can simply ignore the relevant provisions.
rottencouncils@gmail.com
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