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Gove’s Folly? The mystery of Durand and Saint Cuthman’s

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Mystery surrounds a multi-million pound government grant to the charity behind one of Michael Gove’s flagship Academy schools.

Last year, the Durand Education Trust was awarded £17.3 million to build what the Telegraph heralded as the “first fully free state-run boarding school” .

Durand Primary School in Stockwell, South London, had earlier, said the Daily Mail, “used proceeds from a leisure and student accommodation business it runs” to buy St Cuthman’s, the site of a former special needs centre in Midhurst, West Sussex.

The school’s plan was to  give its pupils an alternative to poorly-performing local secondary schools when they completed their time at Durand. The new secondary school would be based in the countryside to keep the children far away from “stabbings and the constant threat of trouble”.

“Teenagers will be transported from London on Monday mornings to spend five days and four nights in the country, returning on Friday evenings, all free of charge”, reported the Mail .

To those tempted to ask whether public money would be better spent improving the local secondary schools rather than building an entirely new one, 50 miles away, and then shipping hundreds of children there and back every week, the school had a good answer:

“It wouldn’t cost [the government] a penny”, Durand’s Executive Head told the Spectator. While the secondary school’s core expenditure would be funded by the state in the normal way, “we’d cover the costs of boarding from the profits of our health club”.

According to the Economist, “Nothing quite like it has been tried before”.

According to the Daily Express, “Parents… are delighted their youngsters will get the chance to enjoy a Harry Potter-style education away from the area’s notorious gang culture.”

“Unlike other state boarding schools, it will not charge for accommodation”, explained the Guardian. “Instead, its running costs will come out of private income the school generates from a swimming pool, gym and block of flats.”

Media coverage has been so positive, in fact, that the PR and lobbying company employed by Durand to promote the St Cuthman’s project, secure government funding, and “make Durand Academy synonymous with educational excellence” last year won an advertising industry award for the £200,000 campaign.

It may also have helped that the school has repeatedly deployed libel lawyers Carter Ruck against critics of the school’s management, and is currently suing Lambeth Council over three emails in which its chief auditor raised concerns about its financial affairs.

Yet amid all the glowing news reports, two big problems seem to have been overlooked.

1. Notwithstanding claims that Durand purchased the St Cuthman’s site “using its own funds”, and  “using income from a gym and flats on its London site”, Companies House records  appear to show that the Durand Education Trust actually took on a debt of £1.9 million to buy the property – over half of its reported £3.4 million sale price:

2. The reported profits from Durand’s business activities cover only a fraction of the school’s boarding costs. It appears that the project will therefore need millions of pounds in additional funding in order to become financially viable – at a time when other schools are having to cut back.

State boarding school lodging costs reportedly range from £7,500 to £12,000 per year for each child. Even at the lower end of that scale, Durand would need more than £4.3 million per year to board the 625 secondary pupils it hopes to take in. In the last three years, the school’s business arm, London Horizons, has generated £304,964 (2009), £255,157 (2010) and £350,120 (2011) for Durand Primary School and the Durand Education Trust – an average of just over £300,000 – less than 10% of the money the school looks to require.

According to “Spears Wealth Management Survey”, Durand has recently launched a public fundraising campaign urging wealthy individuals to sponsor children at the new school, costing this at £3,800 per child, per year. But even at that level, this would still require around £2,375,000 per year for 625 children. This is a sum that many long-standing charities would struggle to raise in a good year, let alone a start-up fundraising programme focussing on a single state school in the midst of a global recession.

When I asked for a copy of the budget and costings for the boarding school project, the Department for Education refused to reveal it, claiming that “Disclosure of certain information would be likely to prejudice the commercial interests of the Department, the proposers or both by adversely affecting bargaining positions and resulting in less effective use of public money”.

So I made a Freedom of Information request to Durand Academy asking for:

“Details of how much Durand paid for the purchase of the St Cuthman’s site”, “The amount of any funds borrowed by Durand to finance the purchase” and “The terms of any such loan, and details of how any such loan is
to be repaid”.

I got the following reply:

1.    Details of how much Durand paid for the purchase of the St Cuthman’s site in Sussex.

ZERO (DAT did not purchase the site)

2.    Details of how Durand financed the above purchase.

NOT HELD.  See above

3.    The amount of any funds borrowed by Durand to finance the purchase.

ZERO

4.    The terms of any such loan, and details of how any such loan is to be repaid.

See above

When I queried this, pointing out that a video on Durand Academy’s own website states that “Durand used its savings to purchase a site in the countryside”, I got no response.

But the school appears to be working on the basis – at least when it comes to Freedom of Information – that the Durand Education Trust is legally a separate entity from Durand Academy, and that FOI requests to the latter do not cover the former.

I subsequently told Durand that I’d seen information suggesting they were in debt, and that this seemed to raise questions about the viability of the St Cuthman’s project and the government’s decision to award it so much money at a time of “extreme national austerity”.

They issued a strong denial, stating that:

“Your assertions and source are factually incorrect on this matter. Durand Academy is not in debt, nor has liability for the land purchase and it would be wrong to suggest either.

“On the issue of value for money, we must object. More than any other school we are aware of, Durand has worked tirelessly and independently over the last twenty years to add significant value and opportunities for local tax payers, without impacting the public purse. Without additional central government support Durand has: improved the condition and value of the school estate substantially; absorbed a run-down failing primary school; completely refurbished that school to a high specification as a specialist early years site; expanded the number of places available to the local community; built state-of the art leisure facilities that children enjoy free use of and the wider community benefit from; reduced class sizes; subsidised healthy meals and; invested in a secondary school project that will provide choice and opportunity for local parents.

“We appreciate very much the ‘extreme national austerity’ that you refer, and that is why we believe that the Government has chosen to support a project and a project team that has never asked for hand-outs and are self-sufficient, has always made maximum efficient use of resources and have a strong record of delivery, not only in education, but in delivering projects on time and to budget.

“The £17.34 million pledged by the Government is some £8m to £15m less than has typically been spent on establishing a new secondary school to serve inner London in recent years. This money will help to deliver a secondary state boarding school from scratch, providing life changing opportunities for thousands of children. This project is innovative and ambitious, but we can assure you it is viable and we are committed to its delivery.”

Confused, I asked whether this applied to Durand as a whole – ie. not just Durand Academy but also the Durand Education Trust (for whom my usual correspondent at the school is listed as the main contact).

I was told: “As stated below this is from Durand Academy. Durand Education Trust is a separate entity. I am an administrator at Durand Academy and field correspondence for Durand Education Trust.”

So I asked my correspondent to refer my previous query about the financial situation to the Durand Education Trust. At the time of publication, a follow-up request for clarification had been acknowledged, but not replied to.

Given that the Durand Education Trust is legally constituted as an “independent charitable trust”, rather than a government body, it is not clear whether the Freedom of Information Act can be applied to it.

It may be that I’ve missed something obvious here (in which case, please do email me or leave a comment below). Or it may be that Durand has a substantial, and previously-undisclosed, source of additional income that can plug the financial gap.

But at the moment it is difficult to see how the Department for Education will be able to avoid committing many more millions each year to this experimental project – leaving millions less available for other, less favoured schools within the education system.

Update: I have now had some comments from the Durand Education Trust. Here’s what they say:

“1. Some of your estimates are so over the top as to be risible. For instance, though there will be costs associated with providing boarding (principally the extra costs associated with keeping duty staff on site overnight for safeguarding) the idea that these would amount to almost £30,000 per night, which is what is consistent with the lower figure in the range you cite, is frankly absurd.

2. DET did not take out a bank or building society loan to fund the purchase of the site. Any information you have to the contrary is false.

3. The figures you quote for London Horizons revenues were figures supplied to you in respect of sums historically paid over to Durand Primary School and Durand Academy. They do not reflect the level of income accruing to DET now or in the future.”

The Durand Education Trust also complain that “Whilst we are prepared to be as transparent as commercial sensitivities allow, we note that almost everything you have written about Durand in the past… has been unfair or inaccurate, and sometimes both. It is hard to resist the conclusion that your reporting is actuated by malice and/or a political agenda…”

So it looks like the mystery will continue for a while yet. I’d welcome any comments from readers that could help to clear things up.

On the financial question, the figure of £7,500 to £12,000 per year per child for state school boarding costs comes from a broadly positive Telegraph article, in which Durand got a prominent mention (“More cash needed for state boarding schools, warns head“, November 28th 2011). Over a 39-week school year where 625 children were boarded for 4 nights per week, the lower end of this scale would indeed amount to approximately £30,000 per day, which certainly is a lot of money.

It’s worth noting, however, that the cost-per-child cited by Durand in their new fundraising campaign – £3,800, would, under the same analysis, equate to around £15,000 per day for 625 children – or £24 per child. While this is significantly less, it is still a substantial sum, and with a total yearly cost (£2,375,000) that would still be much higher than the reported annual income generated, to date, by London Horizons (£350,120 in 2011).

It is not yet clear how the costs of transporting 625 children on the 50 mile trip to and from West Sussex each week would fit into the above analysis, or where the money for this would come from.

I have asked the Durand Education Trust for more details of the things I’ve written that they feel have been unfair or inaccurate, and invited them to produce a “right to reply” piece for publication on this blog, putting their side of the story. I will update this post if and when I receive a reply.

In literal terms, The Durand Education Trust appear to be correct in stating that “DET did not take out a bank or building society loan to fund the purchase of the site”. Records from Companies House show that the company which lent them £1.9 million was not a bank or a building society, but a firm called Alderley Land. More on that in due course…

Written by Richard Wilson

February 29, 2012 at 5:42 pm

Libel abusers seek to tighten their grip as government mulls reform

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From the misguided threats against Labour activist Sally Bercow by the right-wing lobby group Migration Watch, to the renewed attacks on cardiologist Peter Wilmshurst by the controversial multinational NMT Medical, it’s clear that the abuses of our libel law will continue until some robust reforms are implemented.

As is perhaps to be expected given the money involved, the libel industry has been running a classic lobbying campaign against moves for reform. In the  process they have enlisted the help of the notorious former speaker of the House of Commons, Michael Martin, who recently found his way into the Lords. I think this says something about the character of these people.

It seems to me that the libel industry could very easily win this unless pressure is maintained on the new government to do the right thing.

I’m pleased to join today’s mass-blog in urgent support of the libel reform campaign:

This week is the first anniversary of the report Free Speech is Not for Sale, which highlighted the oppressive nature of English libel law. In short, the law is extremely hostile to writers, while being unreasonably friendly towards powerful corporations and individuals who want to silence critics.

The English libel law is particularly dangerous for bloggers, who are generally not backed by publishers, and who can end up being sued in London regardless of where the blog was posted. The internet allows bloggers to reach a global audience, but it also allows the High Court in London to have a global reach.

You can read more about the peculiar and grossly unfair nature of English libel law at the website of the Libel Reform Campaign. You will see that the campaign is not calling for the removal of libel law, but for a libel law that is fair and which would allow writers a reasonable opportunity to express their opinion and then defend it.

The good news is that the British Government has made a commitment to draft a bill that will reform libel, but it is essential that bloggers and their readers send a strong signal to politicians so that they follow through on this promise. You can do this by joining me and over 50,000 others who have signed the libel reform petition at
http://www.libelreform.org/sign

Remember, you can sign the petition whatever your nationality and wherever you live. Indeed, signatories from overseas remind British politicians that the English libel law is out of step with the rest of the free world.

If you have already signed the petition, then please encourage friends, family and colleagues to sign up. Moreover, if you have your own blog, you can join hundreds of other bloggers by posting this blog on your own site. There is a real chance that bloggers could help change the most censorious libel law in the democratic world.

We must speak out to defend free speech. Please sign the petition for libel reform at
http://www.libelreform.org/sign

Written by Richard Wilson

November 10, 2010 at 2:05 pm

Case documents from the Migration Watch vs Bercow libel case

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For my details on this, see my previous post

Migration Watch vs Bercow libel case documents

These documents consist of:

pp1-2 A letter from the Migration Watch solicitors, Geoffrey Leaver, to Sally Bercow

p3 A transcript of the television programme in which Sally Bercow made comments which Migration Watch claims are defamatory.

p4 A draft apology to Andrew Green written by the Migration Watch solicitors and included in their initial letter, with the expectation that Sally Bercow would “send an apology to Sir Andrew in the terms attached”.

It’s important to note that even though this letter was written by the claimant’s solicitors in Sally Bercow’s name, she neither approved it nor signed it.

pp5-8 A response to the Migration Watch solicitors from Sally Bercow’s lawyers, Preiskel & Co.

Written by Richard Wilson

October 1, 2010 at 6:45 pm

Time for an open and honest debate about Migration Watch? Defamation case against Labour activist Sally Bercow highlights the urgent need for libel reform.

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Right-wing thinktank takes its cue from the British Chiropractic Association

*Help defend freedom of speech in the UK – sign the petition for libel reform*

Migration Watch is a right-wing thinktank run by Andrew Green, former UK Ambassador to Saudi Arabia, whose controversial claims about the scale and impact of immigration in Britain have been repeatedly challenged.

One might have thought that our former envoy to one of the world’s most repressive regimes would have been keen to defend basic human rights. So I was surprised to learn that Green and his organisation have made repeated use of Britain’s notoriously unfair and draconian libel laws in response to criticism of their views.

Today sees the launch of a renewed campaign to defend freedom of speech in Britain, prompted by the ill-judged libel threat by Migration Watch and Andrew Green against Labour commentator and activist Sally Bercow over comments she made in a TV discussion. She is fighting the claim with the help of formidable free speech advocates David Allen Green and Robert Dougans, who led the successful defence of science writer Simon Singh against an unfounded libel claim by the British Chiropractic Association.

Interestingly, Migration Watch have themselves repeatedly called for “open debate” about immigration:

“The census figures should stimulate an open and honest debate about this highly sensitive issue”, Migration Watch, February 2003

“It is time for a fundamental rethink on the back of an open and honest debate” – Andrew Green, BBC, September 2005

“An open debate would be welcome”, Andrew Green, Guardian, March 2010

Migration Watch’s David Coleman was also keen to cite “freedom of speech” in 2007, when students at Oxford University controversially sought to have him sacked over his association with  the Galton Institute (formerly known as the Eugenics Society).

Migration Watch is one of a small number of NGOs (splitting this dubious honour with the “Quilliam Foundation” and the BCA) who, while seeking to be part of a public discussion, have chosen to respond to criticism within that discussion by resorting to Britain’s discredited and dysfunctional libel laws.

It is indeed time for an “open debate”. Migration Watch should practise what they preach, and drop this misguided libel threat.

See also: New Statesman, “Why MigrationWatch is wrong — a plea for a more robust debate on immigration”.

Written by Richard Wilson

October 1, 2010 at 3:03 pm

V for Vendetta: “Don’t Get Fooled Again” cited in UK High Court defamation strike-out

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Click here to support the campaign for Libel Reform.

From the UK High Court, case HQ09X02688 (published by 5RB), March 2010:

THE CLAIM

2. Professor Bridle, who is the managing director of the Second Claimant company, brings this defamation claim against Mr Williams, a Health and Safety inspector employed by the Second Defendant, the Health and Safety Executive, (‘the HSE’) at the HSE’s offices in Cardiff. The claim is made in slander in respect of words allegedly spoken by Mr Williams, when acting in his capacity as an HSE inspector, on or about 24 July 2008, to representatives of the University of Wales Lampeter, Mr Cennydd Powell, the University’s Head of Estates, and his assistant Mr John Fowden.

3. The words complained of were that Professor Bridle “is not a real professor as he claims” and that Mr Powell and Mr Fowden (and by implication also the university and all other third parties generally) “should not believe a word that he says”. It is further said that in telephone conversations between Mr Williams and Mr Powell between 24 July and 31 July 2008, Mr Williams repeated to Mr Powell the alleged defamatory statements…

Summary of Defendants’ Submissions

…48. The Defendants submit that publications by the journalists referred to and by the author Richard Wilson in his book ‘Don’t Get Fooled Again’ contain far more serious allegations than those complained of in these proceedings. They are in permanent form, have received and continue to receive far wider publication and would inevitably have caused much greater damage to reputation than the alleged slander by an HSE inspector to the University’s estate manager and his assistant.

49. Richard Wilson’s book contains a Chapter entitled ‘Fake Experts and Non-Denial Denials’ which is almost entirely devoted to attacking Professor Bridle. It disparages his academic qualifications, and brands him as a ‘charlatan’ and a ‘liar’. An article in ‘The Guardian’ dated 30 June 2008 by Peter Wilby refers to Professor Bridle and Asbestos Watchdog in disparaging terms and suggests that his scientific credentials should be subject to careful scrutiny. A critical article suggesting that Professor Bridle was not a neutral expert and was linked to the Asbestos Cement Product Producers Association was published in CMAJ [ a scientific journal] by Kathleen Ruff on 22 December 2008. Critical comments have been published on a blog run by Richard Wilson in September 2008. Julie Burchill wrote an article critical of Professor Bridle and Christopher Booker in The Guardian on 2 November 2002.

50. It is therefore submitted that the incident giving rise to this claim is a peg on which Professor Bridle hopes to hang the next round of his campaign. It is submitted that he has been waiting for the opportunity to “get HSE in the dock” and this action is a contrived way of seeking that. It is submitted that were this action allowed to proceed it would also cause harassment and prejudice beyond that usually encountered in litigation…

CONCLUSIONS

…82. It is, I consider, apparent from the correspondence exhibited to the witness statements that the dominant motive in bringing the proceedings is to cause embarrassment and prejudice to the HSE because of the Claimant’s anger at the HSE’s refusal to accept his views on the subject in question. It is apparent from the evidence that Professor Bridle believes that a claim against the HSE will be likely to bring the debate about the difference in scientific views to a public forum more readily than a claim against an individual journalist would do. Thus I have concluded that, whilst I would not go so far as to characterise the claim as ‘vindictive’ in the same league as the claim in Wallis v Valentine, it does, in my view, fall into the category of a ‘vendetta’ as outlined in that case and in Bezant v Rausing.

83. I note particularly the fact that no defamation proceedings have been brought by Professor Bridle against any of the authors of some of the attacks made against him in the press, in the book by Richard Wilson and on the internet. The content of those publications are mostly in terms far more pejorative than the words alleged to have been spoken by Mr Williams, and will have had a much larger audience. The fact that such publications are widely available will inevitably put into issue the extent to which Professor Bridle’s reputation has been damaged by the alleged publication in this claim. I do not consider that Professor Bridle’s explanation as to why no such proceedings have been brought is credible when compared to the issue of these proceedings for words spoken in either a private meeting or a telephone conversation to either one or two persons (depending upon the evidence).

84. In the light of the lack of any convincing evidence as to why the HSE have been singled out for a claim, and the publishers of the publications referred to have not had proceedings brought against them, and on the basis of the evidence relied on by the Defendants, I have concluded that there is an improper collateral purpose to the claim against Mr Williams and the HSE, rather than simply vindication of reputation…

Accordingly the Defendant’s application for summary judgment and for strike out succeeds in its entirety.

*See also*: “Asbestos critic was ‘pursuing a vendetta’ against HSE”

Written by Richard Wilson

July 28, 2010 at 9:31 pm

Posted in Censorship, libel terrorism

Tagged with

Interesting claims from renowned lawyer Mark Lewis on the Murdoch media phone-hacking scandal

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Via Jack of Kent

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

B E T W E E N

MARK LEWIS

Claimant

- and –

(1) COMMISSIONER FOR THE METROPOLITAN POLICE SERVICE

(2) BARONESS BUSCOMBE

(3) PRESS COMPLAINTS COMMISSION

Defendants

___________________________

PARTICULARS OF CLAIM
___________________________

1. The Claimant is a solicitor.

2. The First Defendant is responsible for the Metropolitan Police Service (“MPS”).

3. The Second Defendant is employed as the Chairman of the Third Defendant.

4. The Third Defendant is a regulatory body for British newspapers and magazines.

5. At all material times the Second Defendant was acting in the course of her employment with the Third Defendant.

6. The Claimant acted as solicitor to Gordon Taylor and Joanne Armstrong, the Professional Footballers’ Association’s (“PFA”) Chief Executive and Legal Advisor and one other person (whose name remains confidential) in an action against News Group Newspapers (“NGN”) in regard to the hacking of mobile telephone messages by employees and/or agents of the News of the World (a newspaper owned by NGN).

7. In 2006 the MPS launched an investigation into the activities of Glenn Mulcaire, a private detective retained by the News of the World, and Clive Goodman, who was employed as the News of the World’s Royal Correspondent. The investigation discovered that Mr Mulcaire had improperly obtained the pin number required to access messages left on Mr Taylor’s mobile telephone voicemail. Mr Mulcaire used this pin number in order to retrieve voicemail messages left for Mr Taylor, thus breaching not only Mr Taylor’s confidence but also the confidence of the numerous persons who left messages for him, including Ms Armstrong.

8. On 26 November 2006 both Mr Mulcaire and Mr Goodman pleaded guilty to conspiracy to intercept communications, contrary to section 1(1) of the Criminal Law Act 1977. The interceptions were of messages left for three members of the Royal Household.

9. Mr Mulcaire also pleaded guilty to five additional counts concerning the unlawful interception of the communications of figures with no connection with the Royal Household (and therefore having no connection with Mr Goodman’s work as a royal correspondent): Max Clifford, Skylet Andrew, Gordon Taylor, Simon Hughes MP and Elle Macpherson. Mr Goodman was not charged with these five offences. They related to interceptions carried out for a person or persons unknown at the News of the World.

10. In 2007 the Third Defendant conducted an investigation into the Mulcaire/Goodman scandal. It published a report entitled: PCC Report on Subterfuge and Newsgathering. During its investigation it posed a number of questions to Colin Myler, who had replaced Andy Coulson following his resignation as the News of the World’s editor, and Les Hinton, the Chief Executive of News International (the News of the World’s ultimate owner). At paragraph 6.3 the report concluded that:

No evidence has emerged either from the legal proceedings or the Commission’s questions to Mr Myler and Mr Hinton of a conspiracy at the newspaper going beyond Messrs Goodman and Mulcaire to subvert the law and the PCC’s Code of Practice. There is no evidence to challenge Mr Myler’s assertion that: Goodman had deceived his employer in order to obtain cash to pay Mulcaire; that he had concealed the identity of the source of information on royal stories; and that no-one else at the News of the World knew that Messrs Goodman and Mulcaire were tapping phone messages for stories.

11. On 6 March 2007 Mr Hinton gave evidence to the Culture, Media and Sport Parliamentary Select Committee (“the Select Committee”). He reported that Mr Myler had told the Third Defendant 12 days earlier that Mr Goodman’s telephone hacking was “aberrational”, “a rogue exception”.

12. On 18 November 2008 the Select Committee commenced an investigation into press standards, privacy and libel. It investigated the News of the World’s involvement in the Mulcaire/Goodman telephone hacking scandal.

13. On 8 July 2009 The Guardian published an article by Nick Davies: Trail of hacking and deceit under nose of Tory PR chief. This concerned allegations that Mr Mulcaire’s actions had not been “aberrational” but that telephone hacking had been widely used by the News of the World in order illicitly to secure information. This article was followed up by one published on 9 July 2009: Revealed: Murdoch’s £1m bill for hiding dirty tricks. This stated that the PCC had been misled when it had been told by News International that Mr Mulcaire’s activities were “aberrational”.

14. As a consequence of the allegations made in The Guardian, on 9 July 2009 the Third Defendant commenced an investigation as to whether it had been misled in 2007. This investigation was independent from that being conducted by the Select Committee.

15. On 2 September 2009 the Claimant gave evidence to the Select Committee. He reported that whilst conducting Mr Taylor’s claim he had attended court in order to make an application for the disclosure of documents from the MPS. Whilst outside court he had a conversation with Detective Sergeant Mark Maberly, who was attending on behalf of the MPS. The Claimant’s evidence to the Select Committee was that:

DS Mark Maberly said to me: “You are not having everything but we will give you enough on Taylor to hang them.” Those were his words: “to hang them”. . . He also mentioned the number of people whose phones had been hacked. Whether that was an aside . . . but they said that there was evidence about, or they had found there were something like 6,000 people who were involved. It was not clear to me whether that was 6,000 phones which had been hacked or 6,000 people including the people who had left messages.

16. The Claimant’s evidence was published and attributed to him by name as follows:

16.1. it was broadcast live via Parliament’s website where a video recording and transcript of the relevant evidence was also published one or two days after the evidence was given. This material continues to be published on this website [From 16:44];

16.2. it was reported upon by The Guardian in an article entitled PCC finds no evidence that it was misled in phone hacking inquiry. The article was first published on 9 November 2009 and has continuously been published on The Guardian website since; and

16.3. it was published by the Third Defendant on 7 November 2009 in paragraph 11.1 of the PCC report on phone message tapping allegations (see paragraph 19 below), which has been published on the Third Defendant’s website since that date.

17. The Claimant’s evidence became widely known to journalists and to those who were interested in the telephone hacking controversy.

18. Immediately prior to the Claimant’s evidence to the Select Committee, Assistant Commissioner John Yates and Detective Chief Superintendent Philip Williams gave evidence to it in regard to the MPS investigation into telephone hacking by Mulcaire and Goodman. The Select Committee made it clear that it believed that the investigation had not been properly conducted by the MPS because it had failed to investigate the extent of the News of the World’s involvement in telephone hacking.

19. On 7 November 2009 the Third Defendant published the conclusions which it had reached as a result of the investigation which it had commenced on 9 July 2009: PCC report on phone message tapping allegations. At paragraph 13.2 it concluded that no evidence had emerged since its 2007 report which indicated that the practice of telephone tapping was engaged in by anyone other than Mulcaire and Goodman or that News of the World executives knew about those activities.

20. The PCC report on phone message tapping allegations was publicly derided:

20.1. Adam Price, a Plaid Cymru MP and member of the Select Committee stated: “I think it would be depressing if this PCC report was perceived by the public as a closing of the ranks within the industry.”; “I think the Guardian really was right to publish its story, was right to raise these questions. And I think it would be a shame if this report was in any way, shape or form interpreted as a slap across the wrists of the Guardian, which I think was raising legitimate questions.”; and that the Select Committee’s forthcoming report “would be able to give a fuller picture of the context of this story”.

20.2. Labour MP Paul Farrelly, a member of the Select Committee, described the PCC report as a “whitewash” and stated that “We (which in context meant the Select Committee) are seriously concerned about the effectiveness of the PCC and self-regulation in the industry,” He also said. “Any whitewash thrown over these events by the regulator will only heighten concerns that will be explored in our report.”

20.3. The above statements received substantial publicity in The Guardian, which also criticised the PCC report on phone message tapping allegations and the Third Defendant.

(I) PUBLICATION BY THE FIRST DEFENDANT

21. On 30 September 2009 Tim Toulmin, a director of the PCC, emailed DI Maberly (who had been promoted since the conversation with the Claimant had taken place). Mr Toulmin stated that whilst the Claimant had indicated to the Select Committee that DI Maberly had told him that “6,000 people were involved in the practice” of “phone message tapping at the News of the World”, John Yates and Andy Hayman (who had given evidence to the Committee on behalf of the MPS) had indicated that “only a handful of people were involved.” Mr Toulmin asked for an indication of the scale of the interceptions.

22. Emma Harraway of the MPS’ Directorate of Legal Services took instructions from DI Maberly. On 9 November 2009 she replied by letter on behalf of the First Defendant that DI Maberly had been “wrongly quoted” by the Claimant. She stated that the correct position was set out in the evidence of Assistant Commissioner John Yates and DCS Philip Williams given to the Select Committee.

23. On 11 November 2009 Mr Toulmin responded to Ms Harraway by email, asking if the correct position was that: “the suggestion that DI Mark Maberly claimed 6000 people were involved in the unlawful practice is wrong.” Ms Harraway responded by email at 16.10. This email included the following words which defamed the Claimant:

Your understanding is correct that DI Maberly has been wrongly quoted, and that you should rely on what Assistant Commissioner Yates and DCS Williams told the Select Committee.

24. In their natural and ordinary meaning or in their innuendo meaning the words complained of meant and were understood to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.

Particular of innuendo

25. The context in which the words complained of were published was provided by those communications set out in paragraphs 21 and 22 above. Given that it had been stated in the correspondence that the MPS case was that there had been a handful of interceptions, the only explanation for the Claimant’s allegation that he had been told by the MPS that 6,000 persons had been involved in phone hacking was that he had invented that figure.

(II) PUBLICATIONS BY THE SECOND AND THIRD DEFENDANTS

Primary Publications

(1) The statement

26. On the 15 November 2009 the Second Defendant, acting in her capacity as the Chairman of the Third Defendant, issued a statement to the Society of Editors Annual Conference at the Radisson Blu Hotel, Stansted (“the conference/the statement”). It was published directly by the Second and Third Defendants in the following ways:

26.1. written copies were distributed at the conference;

26.2. it was published orally by the Second Defendant at the conference. The audience included journalists who were reporting upon rather than participating in the conference;

26.3. it was published on the Third Defendant’s website from that date forward; and

26.4. it is to be inferred that the Third Defendant also published it directly to newspapers, magazines and broadcasters as part of a press release or by other means (as was the case with the Second Defendant’s speech to the conference).

27. The statement contained the following words defamatory of the Claimant:

I would like to use this opportunity to say something on a subject that I know has been of great interest to some in the media and politics.

Last week, the PCC published a report following allegations we were misled by the News of the World during an inquiry we conducted in 2007 into how the phone message hacking situation involving Glenn Mulcaire and Clive Goodman could have arisen.

Having reviewed all of the information available, we concluded that we were not materially misled.

While most people seemed to understand our reasons, one or two were less sure. I have chosen not to debate those matters in public, because our report speaks for itself.

But new evidence has come to light.

Those of you who are familiar with the case will recall the significance that was attached to the apparent evidence of a then Detective Sergeant from the Metropolitan Police called Mark Maberly. It was he who was alleged to have said that around 6,000 people had had their phone messages hacked or intercepted.

The allegation was made in oral evidence to the Select Committee on Culture, Media and Sport, and has also been published in the press. It was repeated just last Monday in some coverage questioning our report.

Since the publication of our report last Monday, the PCC has heard from Detective Inspector (as he now is) Maberly through lawyers for the Metropolitan Police.

This letter says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an e-mail confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a “handful” of people being potential victims.

In light of this, I am doing two things.

First, I am of course putting this new evidence to my colleagues in the Press Complaints Commission, because they will want to update our report to take account of this development.

Second, I have just spoken to the Chairman of the Select Committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention. Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.

28. Furthermore, after reading the statement the Second Defendant answered questions from journalists. She was asked by Chris Tryhorn, a reporter acting on behalf of Media Guardian, whether the letter from the MPS “had effectively withdrawn Maberly’s evidence”. She replied:

Maberly has been wrongly quoted in saying that 6,000 people were involved. He didn’t say it. He is said to have said it.

29. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking. Paragraphs 16 to 16.3 above are repeated.

30. In their natural and ordinary meaning the words set out in paragraph 27 above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.

31. In their natural and ordinary meaning the words set out in paragraphs 27 and 28 (i.e. the slander, the reading out of the statement followed by the Second Defendant’s answer to the Mr Tryhorn’s question) meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.

32. The words complained of were calculated to cause harm to the Claimant in his profession as a solicitor. A solicitor cannot properly practise unless he is a fit and proper person. In litigation, it is crucial that a solicitor’s statement of truth is accepted at face value.

Republications

33. The Second and Third Defendants knew and intended that the statement and any words added orally at the conference would be republished in the media:

33.1. The issue of telephone hacking by the News of the World was a matter of huge public interest.

33.2. The Second and Third Defendants intended to undermine the recent criticisms of the Third Defendant (and by implication the Second Defendant) by publishing the defamatory words set out above. The criticisms which they were seeking to undermine are outlined in paragraphs 20 to 20.3 above.

34. Alternatively it was reasonably foreseeable that the statement would be republished in the media.

(1) The Society of Editors website

35. On or shortly after 15 November 2009 the Second and Third Defendants caused a copy of the statement to be published in full on the website of the Society of Editors, where it continues to be published. A video recording of the statement was also published on the same website from or shortly after 15 November 2009 to a date which is currently unknown.

36. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking:

36.1. Paragraphs 16 to 16.3 above are repeated.

36.2. In Police lawyers deny 6,000 people had phones hacked, an article written by Andrew Woodcock, the Press Association’s Chief Political Correspondent, which was published from 15 November 2009 onwards on the Society of Editors website, the Claimant was identified by name as the person who had given the evidence as to what DI Maberly had told him.

37. In their natural and ordinary meaning the words set out in paragraph 27 above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.

38. The Second and Third Defendants caused an article with the headline Report by Alexandra Fletcher and Adam Thorn to be published on the website of the Society of Editors from 15 November 2009 or shortly afterwards, where it continues to be published. This report included the following words which defamed the Claimant:

The SOE Lecture 2009
Baroness Buscombe, Chairman of the Press Complaints Commission
Chaired by Nigel Pickover, President, Society of Editors
. . .
Read the full text of Baroness Buscombe’s speech here (Word format)

Read Baroness Buscombe’s statement on new evidence in the phone message hacking episode (Word format)

Report by Alexandra Fletcher and Adam Thorn

The chair of the Press Complaints Commission dealt a blow to allegations of widespread phone tapping by the News of the World on Sunday when she revealed a key witness was misquoted.

Addressing the annual conference of the Society of Editors, Baroness Buscombe revealed that then Detective Sergeant Mark Maberly’s evidence related to only a handful of potential victims – and not the 6,000 quoted in some news reports.

She said lawyers for the Metropolitan Police this week contacted the PCC with the new revelations, which have now been passed on to the John Whittingdale, chair of the Commons Select Committee on Culture, Media and Sport, which is investigating allegations that News of the World staff routinely hacked into text messages in pursuit of stories.

The allegation about Maberley saying there were thousands of possible victims ‘’was made in oral evidence to the Select Committee … and has also been published in the press,” the baroness said. This week’s letter from the Metropolitan Police lawyers “says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an email confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a ‘handful’ of people being potential victims.”

Buscombe said she would be putting this new evidence to her colleagues on the Press Complaints Commission, ‘’because they will want to update our report to take account of this development.’’ A recent PCC report concluded that the body had not been misled about the allegations.

She added that she had already told Whittingdale about the new evidence. “Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.”
. . .

Chris Tryhorn, a reporter from the Media Guardian, which first reported the phone tapping allegations, asked Buscombe whether the letter from the Metropolitan Police had effectively withdrawn Maberly’s evidence. Buscombe replied that Maberly: “has been wrongly quoted in saying that 6,000 people were involved. He didn’t say it. He is said to have said it.”

39. The particulars of reference set out at paragraphs 36 to 36.2 are repeated.

40. In their natural and ordinary meaning the words set out in paragraph 38 above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Sergeant Maberly.

(2) The Independent

41. On 16 November 2009 the Second and Third Defendants caused a report of the statement to be published in the print edition of The Independent and from that day forward on its website. It contained the following words which defamed the Claimant:

Parliamentary inquiry misled on phone hacks

Detective denies saying messages to 6,000 people were intercepted

A parliamentary inquiry into phone hacking by tabloid journalists may have been seriously misled, it emerged yesterday when lawyers acting for a Scotland Yard detective denied that he had ever claimed that messages to 6,000 people had been intercepted.

The chairman of the Press Complaints Commission, Baroness Buscombe, said that she had been written to by the Metropolitan Police lawyers acting for Detective Inspector Mark Maberly, who, according to evidence given to the House of Commons Select Committee on Culture, Media and Sport, had said that 6,000 people were victims of a culture of phone hacking at the News of the World, Britain’s biggest-selling Sunday tabloid. Baroness Buscombe was told that DI Maberly had “been wrongly quoted”. The police lawyers told her that the “reliable evidence” given to the committee was from Assistant Commissioner John Yates, who had said that only a “handful” of people were targeted.

“I have just spoken to the Chairman of the Select Committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention,” Baroness Buscombe was expected to tell the annual Society of Editors conference last night.

“Any suggestion that a Parliamentary Inquiry has been misled is an extremely serious matter.”

42. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking. Paragraphs 16 to 16.3 above are repeated.

43. In their natural and ordinary meaning the words set out in paragraph 35 above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.

(3) Press Gazette

44. On 16 November 2009 the Second and Third Defendants caused a copy of the statement and a report of it to be published on the Press Gazette website, where they are still being published.

45. The Press Gazette’s report contained the following words which defamed the Claimant:

Buscombe: Police lawyers deny 6,000 phones hacked

The Commons’ inquiry looking into allegations of phone hacking by journalists may have been misled it emerged last night as Metropolitan Police lawyers acting for a senior officer on the force investigating reporters at the News of the World denied he had ever claimed 6,000 calls had been intercepted.

In a letter to the Press Complaints Commission, police lawyers said that evidence suggested only “a handful” of people were targeted rather than the thousands that were claimed in recent evidence given to the Commons’ Select Committee examining alleged phone-hacking.

PCC chairman, Baroness Buscombe, revealed the existence of the letter to delegates after her opening address to the Society of Editors conference, at Stansted, last night.

Baroness Buscombe said: “The PCC has heard from Detective Inspector – as he now is – Maberly through lawyers for the Metropolitan Police.

“This letter says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an email confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a ‘handful’ of people being potential victims.”
Evidence of phone hacking first emerged in 2007, when former News of the World royal editor Clive Goodman and private investigator Glen Mulcaire were jailed for eavesdropping on royal aides and celebrities.

The News of the World then told a PCC inquiry that no one else at the paper was involved.

The inquiry’s findings were reviewed earlier this year after reports in The Guardian suggested that the practice was more widespread at the Sunday tabloid than previously believed.

In a report published last week, the PCC said it had found no evidence that it was misled by the News of the World in the original inquiry.

The PCC report was then criticised by a number of MPs, calling it a “whitewash”, and by Guardian editor Alan Rusbridger who said it was “worse than pointless”.

Last night Buscombe said the commission would update its report in the light of the new information supplied to it about the evidence presented to the CMSC last month by solicitor Mark Lewis.

Lewis told the committee that he had been informed by Maberly that “they had found there were something like 6,000 people who were involved.”

“It was not clear to me whether that was 6,000 phones which had been hacked, or 6,000 people including the people who had left messages.”

Buscombe told delegates: “In light of this [lawyers' letter], I am doing two things.

“First, I am of course putting this new evidence to my colleagues on the Press Complaints Commission, because they will want to update our report to take account of this development.

“Second, I have just spoken to the chairman of the select committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention. Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.”

46. In their natural and ordinary meaning the words set out in the republication of the statement and in the words set out immediately above meant and were intended to mean that:

The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.

DAMAGE

47. The Claimant was motivated by a strong sense of public duty in giving evidence to the Select Committee. He believed that his evidence would contribute important information to its investigation into the telephone hacking affair. The fact that in return for performing a public duty he has been so seriously libelled by the Defendants, all whom hold very senior positions in society, has contributed very greatly to his sense of injustice.

First Defendant

48. The distress caused to the Claimant by the First Defendant’s publication was aggravated because:

48.1. DI Maberly falsely denied the Claimant’s account of their conversation.

48.2. During the Mulcaire/Goodman investigation the MPS had seen or had taken into its possession documents which indicated that the number of potential victims of phone hacking carried out by Mr Mulcaire on behalf of the News of the World was substantial, running into the thousands. At the very least this evidence made it clear that the number involved far exceeded a “handful” (which term had been intended to mean and did mean no more than five or ten).

48.3. It is to be inferred that before Emma Harraway published the words complained of, she consulted not just with DI Maberly but also with senior officers who had been responsible for the Goodman/Mulcaire investigation. Those officers knew, by reason of the material referred to in the preceding paragraph, that it was far more likely that DI Maberly had referred to thousands rather than a “handful” of persons as potential victims of telephone hacking.

48.4. By these deceptions the employees and/or officers of the MPS who were involved in passing the relevant information to the Third Defendant cynically and untruthfully set out to undermine criticisms that had been made of the MPS, most notably by the Select Committee, for failing properly to investigate the true extent of the News of the World’s telephone hacking activities. Paragraph 18 above is repeated.

Second and Third Defendants

49. The distress caused to the Claimant by the publications brought about by the Second and Third Defendants was aggravated because:

49.1. Prior to making the statement, neither the Second nor the Third Defendant contacted the Claimant to inform him that DI Maberly had denied saying words to the effect set out in the Claimant’s evidence to the Select Committee.

49.2. The failure to contact the Claimant prior to publication was in breach of the Third Defendant’s own Code of Conduct regarding the obligation of the press not to “publish inaccurate, misleading or distorted information”. In its guidance to observing the code, the Third Defendant stresses that certain steps prior to publication are important in observing this rule, most particularly giving a “likely complainant . . . an adequate opportunity to respond”.

49.3. In not contacting the Claimant prior to publication the Second and Third Defendants have not only acted with gross unfairness but also hypocritically.

49.4. The Second and Third Defendants cynically chose to promulgate the self-serving statement issued by the MPS because it also served their self-interest in heading off criticism of the Third Defendant’s telephone hacking investigation. Paragraphs 20 to 20.3 above are repeated.

49.5. The Second and Third Defendants disregarded the obvious fact that the Claimant had no motive to fabricate the evidence which he gave to the Select Committee whereas it was likely (and was the case) that the First Defendant was motivated by a desire to undermine criticism of its failure properly to investigate the true extent of the News of the World’s phone hacking activities.

49.6. It was particularly spiteful to engage in the publicity stunt of publishing to the world at large the fact that the Second Defendant had written to the Chairman of the Select Committee in order to report that the Claimant had misled it.

50. In all the premises, the Defendants demonstrated a callous contempt for the Claimant’s dignity, reputation and feelings.

51. Unless restrained by this Honourable Court the Defendants will further publish or cause to be published the said or similar words defamatory of the Claimant.

AND the Claimant claims:

(1) Damages for libel, including aggravated damages;

(2) An injunction to restrain the Defendants, whether by themselves, their servants or agents or otherwise howsoever, from further publishing or causing or permitting the publication of the words complained of or of any similar words defamatory of the Claimant.

Written by Richard Wilson

June 24, 2010 at 12:41 pm

Posted in Censorship

Tagged with , ,

Save a life, slash the UK government’s subsidy of the libel industry

with 2 comments

While accident and emergency services face cuts,
frivolous libel cases receive a generous subsidy

The endemic abuse of the UK’s dysfunctional libel system to suppress inconvenient scientific evidence is now widely understood to be a threat to public health.

The enormous fees that libel lawyers are able to charge mean that a defendant can face crippling, unrecoverable costs even if they win their case.  The situation is now so bad that the media is routinely exercising self-consorship over contentious public health issues rather than face the risk of legal action.

But there is another issue here, which has also has serious implications for public welfare, and which merits more scrutiny. While the claimant and defendant in a libel case have to foot the bill for their respective lawyer’s legal fees (with the majority of the costs typically falling on whoever loses the case), there are many other costs involved in a case – from the judge’s salary to the cost of heating and lighting the courtroom – that they never have to worry about.

These “invisible” costs are generously met by the UK state, using money from taxpayers that many of us might prefer to be put towards a more worthy cause – saving our local accident and emergency unit from closure, reducing class sizes in an inner city school, providing better equipment for our armed forces, or simply returning the money to taxpayers so they can decide for themselves how to spend it.

A typical salary for a High Court judge is in the region of  £172,000. If the judge works for five days a week, 46 weeks of the year, this would equate to a  rate of more than £740 per day. The judge is supported, in turn, by a whole team of clerks and other administrative staff. The court room itself must be kept warm, clean, and in good repair. Meticulous records must be kept of the court proceedings, with those records being filed and maintained for many years afterwards.

Without all of these “invisible” costs being met, there would simply be no lucrative court case for libel firms like Carter Ruck and Schillings to cash in on.  So what’s actually happening here is that the UK taxpayer is indirectly subsidising the libel industry.

So what kind of cases are we subsidising? Well there’s the tennis player who sued the Daily Telegraph (unsuccessfully) for calling him the “world’s worst tennis pro”. There’s the Icelandic professor who got sued in the UK courts over a comment posted on the website of the University of Iceland. There’s the Ukrainian businessman who sued a Ukrainian news website in the UK courts over comments made on that website, in Ukrainian. There’s the now-notorious failed libel action by the British Chiropractic Association against science writer Simon Singh over his criticism of their scientific claims. There’s the two-year (and also famously unsuccessful) libel case by the blogger Joanna Kaschke against another blogger, Dave Osler, which was thrown out after two years on the basis that there was actually no case to answer.  There’s the defamation case brought by John Bridle against the Health and Safety Executive, over comments allegedly made over the phone by an HSE inspector – the case was also thrown out (after much deliberation), with the court ruling that Bridle had been pursuing a “vendetta” against the HSE.

On top of the considerable costs imposed on the defendant, all of these cases required a hefty subsidy from the taxpayer in the form of court staff time and other administrative expenses – while (in most cases) the claimant’s law firm raked in the profits.  It’s difficult to put a precise figure on how much money we are wasting each year on frivolous or trivial defamation cases like these – but it’s easy to think of better ways that this cash could be used.

Written by Richard Wilson

June 18, 2010 at 10:36 am