Proops KC on Local Authority Employers' Liabilty

In our post dated 27th April, 2023 (link below) we reported that Anya Proops KC (QC at the time of her 2018 Opinion) told Sandwell Metropolitan Borough Council (SMBC - currently in Government “Special Measures”) that it was lawful for it to use The Local Authorities (Indemnity for Members and Officers) Order 2004 (“The 2004 Order”) to indemnify an employee in respect of critical comments by a Blogger about content on her personal Twitter account.

https://rottencouncils.blogspot.com/2023/04/anya-proops-kc-extends-scope-of-local.html

In February, 2021, SMBC admitted to the Information Rights Tribunal that its Head of Legal and statutory Monitoring Officer, Surjit Tour, used Ms Proop’s Opinion to secure the Council’s agreement to fund Lisa McNally (then SMBC’s Director of Public Health) in a private legal action against the Blogger. The action was struck out at a very early stage by the High Court as having no real prospects of success, but at a loss to the taxpayer of around £100,000.

The curious aspect of this is that Ms Proops must have been considering either a hypothetical case in 2018 or issues relating to the personal Twitter account of a different, unidentified, employee since, at the time, McNally had not yet been employed by SMBC. n

Now there is another twist to the tale since it is now clear that Proops also advised the Council that it could also indemnify an employee relating to their personal use of social media under the principles of employers' liability law. Once again, Mr Proops must have advised in 2018 in respect of a hypothetical case or in respect of a different, unidentified, employee.

A document now shows that when Tour asked the political leader of the Council for authority to use public funds to subsidise McNally (who earned between £105,000 and £109,000 per annum) he did not mention The 2004 Order at all. On the basis of Ms Proop’s 2018 Opinion he wrote:

“The Council supports Lisa McNally in this claim, pursuant to its duty of care towards her.

The Council has a duty of care towards its employees. Employers, including the Council, must provide a safe place of work. The duty extends to mental well-being as well as physical well-being. In determining if an employer has complied with this duty, a court would decide whether the employer has taken reasonable care of an employee, have they done enough? It would also have to determine if the injury caused to the employee was related to the actions or failure to act of the employer and if the injury was reasonably foreseeable.

In this case, Lisa McNally has been subjected to attacks from an individual, through their publications, for a number of months. Lisa McNally has suffered injury because of this; to her mental well-being. It can be reasonably foreseen that if the Council does not act to take reasonable care of the employees, further injury will be caused to her.

It is very important that the Council complies with its duty of care towards employees, taking steps to protect them from abuse, harassment and oppression received because of their employment [my emphasis], and trying to prevent further occurrence of similar behaviour.”

Initial Comments:

Tour does not mention The 2004 Order here at all. In the protocol process after the initial letter of claim the Blogger pointed out that Tour had no legal basis to indemnify McNally in respect of personal litigation and that clearly The 2004 Order did not apply to issues arising from the conduct of an employee acting outside the course of his/her employment. Tour and his large team insisted to him, and to his Solicitor, that The 2004 Order did apply in this case without mentioning Ms Proop’s Opinion. As we saw in the April post herein, Tour admitted to the Tribunal that Proops has authorised indemnity on the basis of The 2004 Order in a hypothetical or different case.

The emphasised words, “because of their employment” is of particular note. Perhaps Ms Proops had this in mind in 2018 when advising on a hypothetical or different case since she presumably did not envisage that an indemnity would be provided for the personal litigation of a highly-paid employee in respect of their use of a personal Twitter account? But, nevertheless, Tour told the Tribunal that Ms Proops’s Opinion provided the legal basis to use taxpayer funds to indemnify McNally.

[In the course of the litigation the Blogger presented evidence that McNally (a Clinical Psychologist) used her personal Twitter account to attack individuals (including medically-qualified ones) who did not agree with her views on the handling of the Covid pandemic. As we wrote in April, she regularly questioned the Government’s handling of the pandemic (including the views of expert bodies advising it) despite being in a politically-restricted post. She also followed, and engaged with, a number of troll accounts (which the Blogger identified) which were actively attacking the Blogger himself. It is noteworthy on a legal point that Tour rejected outright any possibility of SMBC accepting vicarious liability for McNally’s own Twitter output, which is a very clear indication that the Council were not going to accept any legal liability for her personal comments in any circumstances.]

But Proops (seemingly) goes further …

Surjit Tour did not advise McNally to seek independent legal advice at any stage. Neither did he inform the political leader of the Council that this was the obvious course of action for McNally to take so that the (then) leader was seemingly unaware that was the correct and appropriate thing for McNally to do.

Indeed Tour went even further in persuading the political leader to authorise indemnity, again praying in aid the 2018 Proop's Opinion. He bizarrely told the leader that the Council itself could be sued by McNally if they did not indemnify her. These is the way he put it:

“Alternative Options considered and discounted

The Council could choose not to support the Claimant. This would expose the Council to risks of an employment dispute given the duty of care that the Council owes to her [McNally] as an employee, as set out above.”

Additional Comment

It is noteworthy that the High Court case was brought as a personal action by McNally with Tour and no less than three of his publicly-funded colleagues acting as her Solicitors, with the taxpayer picking up the tab. SMBC has claimed legal professional privilege in respect of Ms Proop’s 2018 Opinion but we must now question whether she was advising generally in respect of obvious “attacks” on an employee in the course of his/her employment? Did she really advise that taxpayers' money could be used to support private litigation relating to a personal social media account? Tour says that she did advise this although, as above, SMBC was not prepared to accept vicarious liability for McNally’s personal output and refuses to disclose even a redacted version of the 2018 Opinion.

If Ms Proop’s was extending indemnity principles to cover an employee’s personal Twitter output it would clearly be helpful if she makes public the case authorities upon which she relies (or that Tour does so on behalf of SMBC). As things stand, there is no obvious legal basis for extending publicly-funding indemnities in this manner.

rottencouncils@gmail.com

Local Authority Legal Case Management Systems

In a recent case at the Information Rights Tribunal (which settled pre-hearing) some curious facts came out concerning the procedures at Sandwell Metropolitan Borough Council (SMBC) legal department, headed by highly controversial Monitoring Officer, Surjit Tour*.

Tour was re-employed by SMBC and specifically tasked, inter alia, with “doing a number” on local blogger, Julian Saunders. To this end Tour has tried various tactics and also set up a £300,000 fund of taxpayers money to crush Saunders financially and to destroy the blog (as reported in The Times and mentioned in Parliament). He also authorised the unlawful funding of a claim by an employee, Lisa McNally, against Saunders in respect of her personal Twitter account which ended up costing the taxpayer £100,000.

Saunders, a former Solicitor, has presented a number of matters to the Information Rights Tribunal which has usually resulted in a deluge of documents being provided to him which he had previously been told didn’t exist or were somehow “unavailable”. 

At a small number of hearings involving Saunders  - including at the striking out of McNally’s claim at the High Court in London - he noted a curious thing. Tour was sending not one but two senior in-house Solicitors to sit behind Counsel. Given the low-level nature of the litigation it was unclear to Saunders why the taxpayer was (a) paying for two senior in-house lawyers to attend, and (b) whether both lawyers were claiming travel and subsistence to attend hearings, notably the one in London. He duly made a Freedom of Information (FOI) request. 

A defence of vexatiousness was made by Tour but died on the vine. But SMBC maintained a defence under s.12 FOIA (Cost of compliance exceeding the appropriate limit). As usual, the Information Commissioner upheld Sandwell’s s.12 interpretation.

Mr Saunders had left the law in 2004 but was quite familiar with computerised case management systems even then. He imagined that the technology would have come on by leaps and bounds, but this is not the case with the Sandwell system.

SMBC confirmed that they had used the CIVICA Legal system for part of the period covered by the FOI request, but had then changed to the iCasework system.They informed the Tribunal that neither of these systems maintained records accessible to managers or other third parties relating to the time spent travelling to, and attending at, hearings. Thus there was no way of correlating whether more than one person was out of the office (or away from home if working from there) and attended hearings with another. Such information is recorded on individual files and so, for FOIA purposes, it would be necessary to physically inspect every single litigation file (over the FOI period of two years)  to try and puzzle these things out. Yet even without the data SMBC were somehow able to confirm that double attendance was rare.

Mr Saunders was astonished by this, remembering ghastly weekly meetings when senior partners came armed with computerised sheets and analysed fee earners' time and cost performances. That was in 2004. He responded to the SMBC submissions that it was admitted (at least in respect of attendances) that the records were “held” - within the FOI meaning of that word. Of course, it is hard to see how they could not have been noting that SMBC keeps internal time recording details for each fee earner at “the internal charging rate”, and this also forms the basis for claiming inter parte costs should that become applicable. (Bizarrely, the Civica and iCasework systems operated by Sandwell are also said to be incapable of recording travel and subsistence costs on any records available to management and these are “only contained on individual files”.)

SMBC said it was pivotal that there was no need to record if more than one taxpayer-funded solicitor attends a hearing, and there is no reason to do this. Mr Saunders countered that management needed to know (a) where lawyers actually are, and (b) why taxpayers’ money was being unnecessarily wasted by double attendances.

Neither CIVICA nor iCasework can be searched (say SMBC) to show whether hearings actually took place on individual cases (whereas back in 2004 Mr Saunders specifically remembers time recording “hearings”). As above, neither can travel and/or subsistence be “searched” across the system say Sandwell.

Mr Saunders asked why fee earners could not simply be asked whether they recall attending any hearings in the previous two years in the company of a colleague particularly when the number of such occasions was somehow known to be very small. SMBC thought this a wholly unreasonable request saying it was unfair to ask fee earners to recollect such incidents and the results might be “inaccurate”. Further a fee earner may recall that s/he was involved in a double attendance but not whether s/he time recorded it on the file! Despite this they did physically “interrogate” one of the files specifically mentioned in the FOI request (the McNally fiasco) even though this had already been the subject of a separate FOi request which the Council had answered.

Incredibly SMBC initially stated that they had no record on file of two Solicitors attending the McNally hearing (in London) although when they investigated the file they found an email showing that another solicitor had emailed to say she was going to attend (and, according to the other FOI, there were substantial rail fares incurred). The email would, of course, constitute a record within the ambit of the original FOI request. In another bizarre twist SMBC told the Tribunal that the second fee earner had voluntarily gone to London on "a non-working day" so that - apart from the train fare - the taxpayer suffered no loss! 

Incidentally SMBC has form for this sort of nonsense. Maria Price - a solicitor formerly employed by SMBC and now at Devon Council - "represented" the Council political Leader at a police interview in respect of a purely personal matter. Sandwell doctored her records - seemingly with her knowledge - to show that she was on holiday that day and claimed that she had been present at the police interview as a gesture of goodwill to the political Leader.

Despite the obfuscation SMBC finally admitted that (1)  there had been double attendances only on very rare occasions; (2) at least two of those occasions were hearings involving Mr Saunders: (3) Other than any records on individual files there was no management of central billing records showing double attendances and (4) SMBC did pay for the train fare for a second solicitor to attend the McNally hearing but she went in her own time and there was no “cost” to the taxpayer for her attendance. Curiously Sandwell belatedly admitted in a consent order that this double attendance was “authorised” by management although seemingly without any record being kept that would be disclosable under the FOI.

Comment

Although local authorities claim to model their operations on commercial firms it is clear that one, at least, is an absolute shambles in respect of time management. Tour has no idea where his senior solicitors are nor that they are sometimes wasting taxpayers’ funds for no reason. Tour also wasted taxpayers money on paying for a second solicitor to travel to London when she was not actually working.

It is an amazing coincidence that the only known examples of doubling-up occurred in incidents involving Mr Saunders during a period when Tour and his colleagues have been pursuing a vendetta against him.

Clearly the case management systems utilised by Sandwell (at least) are not fit for purpose as a management tool. It seems bizarre that modern systems cannot record time spent in travel to, and attendance at, hearings. 

Now that people are increasingly working from home it is maybe not so important for fire safety and/or management purposes to know where staff actually are. Most firms have logging in and out records for their offices but it does seem odd that Council management would have no record if a solicitor was attending a hearing - either from the office or from home.

On a brighter point - at least if you are a SMBC Solicitor - “Big Brother” is not watching you!

* Further details of Tour's approach to the position of Monitoring Officer can be found at "Monitoring the Monitoring Officer - A Case Study" at:

https://crowmultimedia.blogspot.com/2021/12/monitoring-monitoring-officer-case-study.html

rottencouncils@gmail.com