According to Grant Thornton, accountants, London legal firm, Bates Wells, has backed the Opinion of Anya Proops KC that councils may use taxpayers’ money to fund private litigation by employees - although, seemingly, on different grounds
Background
Sandwell Metropolitan Borough Council (SMBC) - currently in Government special measures due to widespread governance deficiencies - informed the Information Rights Tribunal that Anya Proops QC (now KC) advised in 2018 that it could use taxpayers’ funds to pay the legal costs of employees acting outside the course of their employment pursuant to Employers’ Liability principles. The Tribunal was told that Proops opined that councils owed their employees a duty of care even when on a frolic of their own. The writer dealt with Employers’ Liability cases for 18 years and this seems an entirely novel, and bizarre, restatement of the law. SMBC itself has repeatedly refused to release the details of Proop’s extraordinary Opinion or the case law she relied upon for this proposition.
SMBC duly relied upon Proop’s 2018 Opinion three years later as authority to fund private litigation by its Director of Public Health, Lisa McNally, against a journalist arising from comments she made via her personal Twitter account.
During the short course of his litigation Grant Thornton, SMBC’s controversial auditor Mark Stocks was informed that the purported indemnity of McNally was unlawful, but he declined to intervene. The case was struck out at the earliest opportunity at a cost of taxpayers of £100,000. Had Stocks acted appropriately some of this loss could have been abated.
After the litigation commenced SMBC stuck to the argument which they say Proops KC had advanced that funding was lawful, but when referred to the wording of The Local Government (Indemnities for Members and Officers) Order 2004 (the 2004 Order) claimed that this also permitted them to fund the personal litigation of an employee.
(See earlier posts although please note that they were written with the author’s state of knowledge at the time of publication:
https://rottencouncils.blogspot.com/2023/04/anya-proops-kc-extends-scope-of-local.html
https://rottencouncils.blogspot.com/2023/07/proops-kc-on-local-authority-employers.html
Of course, if (and it is a very big "if") Proops is right then one wonders why the 2004 Order was necessary at all, at least in respect of employees, and why it specifically refers to employees acting in qua employees?)
Bates Wells
For reasons that can only be guessed at, long after the McNally case had spectacularly failed, Stocks decided that Grant Thornton should belatedly seek its own legal advice on the legality of funding McNally, and then stated in a Report to SMBC that Bates Wells has provided them with a legal opinion that the 2004 Order did indeed permit taxpayer-funding of private litigation by employees, as Proops had also opined although, apparently, on different grounds.
Grant Thornton has also refused point blank to disclose their instructions to Bates Wells, the advice provided or the case law Bates Wells relied on. Incredibly, SMBC has “accepted” the Grant Thornton report without actually seeing the Bates Wells advice itself!
It is presently unclear whether Grant Thornton has charged the taxpayer for the Bates Wells “theoretical” advice, but early evidence suggests that it has.
Comment
The Proops KC “duty of care” Opinion seems wholly wrong and fantastical. It was fully supported, however, by no less than four Solicitors at SMBC - Surjit Tour (the Monitoring Officer currently on his way out), Maria Price (now head of legal and MO at Devon Council), Julia Lynch (now at the ICO), and Vanessa Maher-Smith (who remains at SMBC).
Such legal comment as exists in relation to the 2004 Order seems to clearly point to the unlawfulness of such private funding, as does the wording of the Order itself despite what Bates Wells allegedly say. It seems that the appropriate action would be for legislators to revisit the wording of the Order and make their intentions crystal clear.
rottencouncil@gmail.com
Ian Crow Multimedia Limited
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