A High Court judge yesterday refused Croydon Council’s attempt to ‘unpublish’ documents that it had itself put into the public domain.
STEVEN DOWNES, Editor of Inside Croydon, on a small victory for the freedom of the press
Two years ago today, Croydon Council went bust.
Yet in all that time since, Croydon Council has conducted more legal action against this website and me, as Editor, than it has against any of the people who bankrupted the borough.
It was 3.39pm on Wednesday when the email dropped into the inbox here at Inside Croydon Towers from Stephen Lawrence-Orumwense, Croydon Council’s most senior legal official.
It seemed that Lawrence-Orumwense really was going to compound the authority’s incompetence with an act of crass misjudgement – some might use a stronger word – and all at considerable expense to the long-suffering Council Tax-payers of Croydon.
The email said that Croydon Council was taking out a High Court injunction against this website’s Editor to stop us from publishing materials that had been on the council’s own website for six weeks (our italics, because we cannot stress enough the mind-blowing stupidity of the council in taking this step, and all the while using public money to do so).
New readers start here… Towards the end of October, one of Inside Croydon’s loyal readers flagged up two documents that had been published on the council’s own website (our italics, because we cannot stress enough the degree of compounded incompetence demonstrated by the council in this episode).
Both documents had been published as appendices to a report to the council’s appointments committee held on April 27. The documents related to discussions held in “Part B” of that meeting, which in councilspeak is where council staff have determined that what is discussed is too juicy to be shared with the public, and certainly not to be shared with the press.
Appendix One is a 12-page report, dated March 4, 2022, from solicitors Browne Jacobson entitled “Advice to Croydon Council on various issues arising from the second RIPI”, meaning Report In The Public Interest. Grant Thornton, the council’s auditors, had issued their first RIPI in October 2020, foretelling the imminent financial collapse, too late for anyone to do enough to pull the council out of the multi-million-pound tailspin caused by the likes of Jo Negrini, Tony Newman and the misadventure that is the council’s development company, Brick by Brick.
Grant Thornton’s “RIPI2” was published in February this year, the result of 14 months research into the fiasco at the Fairfield Halls, where a £30million refurbishment project failed to be completed, was delivered late and ended up costing £67million. Messrs Negrini, Newman and Brick by Brick were again leading players in this costly sideshow to the shitshow.
RIPI2 had been a game-changer as far as the possibility of legal action being taken by the council was concerned. The council’s new CEO, Katherine Kerswell, had been sitting on the Penn Report (yes, another report) since February 2021, with its recommendations for the borough’s councillors to consider embarking on legal action against Negrini and others. None of which have ever been acted upon.
Browne Jacobson and a senior barrister, Jane Mulcahy QC (as was), had gone over the materials previously in the summer of 2021. Browne Jacobson’s March 2022 report recommended, among other things, that Mulcahy should be asked to go over it all again, but with RIPI2 as additional information.
And that’s where the second document published on the council’s website comes in. Appendix 2 is Mulcahy’s report, 14 pages of it, delivered to the council on April 1. Unlike the Browne Jacobson report, it focuses on the possibility of the council grabbing back some of the £437,000 golden handshake pocketed by Negrini in August 2020.
The reports provide a lot of information on the calamities at the council, and their softly-softly approach towards the people who bankrupted the borough.
Thanks to the diligent reader who spotted them, we downloaded the documents and began preparing to report the most significant details. This involved discussing their contents with various figures, what we euphemistically refer to as “Katharine Street sources” – Town Hall insiders and council staff.
By last Sunday evening, the reports had vanished from the council website. One of our sources, a councillor, had alerted council bosses. “I can’t believe that this is just sitting there,” they’d told Inside Croydon.
Our first article about the documents appeared on Monday, November 7: ‘Better than evens’ chance of winning Negrini legal case, based on the advice from Mulcahy.
The second article, No referrals sent to staff’s professional bodies, drawn from the Browne Jacobson report, was published on Wednesday, November 9.
We had in the interim received an email from Lawrence-Orumwense, the monitoring officer, ordering us not to publish any of the documents that we had obtained legally from the council’s website. We reported that here: Council threatens injunction over reports it published itself.
The email we received was, in our opinion, a badly drafted and ill-considered piece of correspondence, containing a bald threat to issue a High Court injunction against us for publishing what the council had itself already placed in the public domain.
And then late on Wednesday afternoon, Lawrence-Orumwense’s injunction notice actually landed.
As with so much of what the council does, it was both ham-fisted and incomplete.
“Please find enclosed the Local Authority application for an interim urgent injunction order to be applied for today,” Lawrence-Orumwense wrote.
“The application will be made this afternoon at the High Court of Justice in Court 17, the interim applications Court, and will take place by MS Teams. Please let me know if you wish to attend.”
Well yes, you bet your bloody life I wanted to attend. But where was the link for MS Teams? What time was this hearing supposed to be taking place “this afternoon”, as Lawrence-Orumwense stated?
I checked the listings for the High Court. Nothing there. I emailed back to Lawrence-Orumwense, asking for the link and the time of the hearing. There was no response.
The court office closes at 4pm. There was no application hearing held that afternoon, one of several details that Lawrence-Orumwense got wrong. Some time later on Wednesday, someone else in the Croydon legal team sent us another email: it included an attachment with all the council’s evidence (there isn’t much), which Lawrence-Orumwense had forgotten to include with his injunction notification.
Calls were made. Lawyers contacted. What was going on? No one was able to say with any certainty quite how the council’s action was proceeding, if it really was.
I spent Thursday morning ringing round chambers, trying to find a media law barrister who might be available for a very short-notice hearing. Nothing doing. Then more correspondence dropped: there was going to be a hearing. Today! At 2pm!
In the court papers from the council that were served, they were making an “Application for interim injunction”. It had a reference number and everything, KB-2022-004184 LB Croydon v Downes.
“The Articles include extracts from, and report on the contents of, two confidential reports (‘the Reports’). The Council seeks an urgent interim injunction against the Respondent to cease publication of parts of the Articles and to prevent him (at least until trial) from publishing anything further on the content of the First Report (only) in breach of an equitable duty of confidence.”
This was to be heard, but not in Court 17 (as Lawrence-Orumwense had stated in his email the day before), but in Court 13 at the Royal Courts of Justice, the very courtroom where the Wagatha Christie libel trial had taken place recently.
Without legal representation, I had just a couple of hours to prepare a submission to the court. The judge agreed that I could represent myself, and that I could do so remotely.
I’d seen every episode of Judge John Deed. What could possibly go wrong?
In fact, I had given evidence in the High Court once before, more than 20 years ago. I appeared as a witness on behalf of the late John McVicar (yes, the “former Public Enemy No1”), after he’d written an article saying that drugs cheat Linford Christie was a drugs cheat. I’d been present when Christie first provided an adverse drugs sample, at the Seoul Olympics in 1988, and written a book, Running Scared, which detailed how the “the world’s fastest granddad” had out-run the drug-testers throughout his track career.
My evidence couldn’t have been that great a help, because eight out of the 11-strong jury agreed that McVicar had libelled Britain’s Olympic hero. Within a year of the libel trial in which he’d sworn on oath that he never used performance-enhancing drugs, Christie tested positive for drugs and was banned from the track…
That may be something of a digression, but it serves to show how delicate and difficult a maze the world of media law can be.
Our case was to be heard by Mr Justice Nicklin, the Judge in Charge of the Media and Communications List. He is the man who wrote the book on the subject, The Law of Privacy and the Media, a tome so much in demand, it even made it into a third edition (which is more than Running Scared ever did).
Other loyal readers had rallied round overnight, passing me notes and suggestions of what to highlight and bring forward in my evidence. Others called with names, numbers and websites of lawyers and funds that might be available for important matters of freedom of speech.
I was told by one individual with more courtroom experience than I to address the judge as “M’lud”, or “Your Lordship”, and that the legal concepts of confidentiality and legal privilege would usually be expected to trump the public interest argument for publication.
The Applicants’ submission – the case being put forward for the council by their barrister – admitted that the documents had been published on the council’s own website on September 23 – six weeks earlier. It was, the council claimed, because of a “technical glitch”.
How the documents got there, in the end, is of little concern. The fact that the council, in a borough of 330,000 people, had placed these docs on the World Wide Web surely made them fair game for journalists to read, download and quote from?
My submission to court concluded: “I submit that the appeal should be dismissed because the Applicants have themselves rendered the documents no longer confidential, and that the documents had lost all privilege by the Applicants’ own act of publishing them on its own website for six weeks.”
Court 13 was a very empty place when I logged in and, with the help of the court clerk, checked that we could all see and hear each other. Normally, if a local authority is making an application to the High Court, you’d expect that the council would be present. As it was, there was only the council’s counsel, a barrister from Cornerstone Chambers, Matthew Lewin, plus two court staff.
Lawrence-Orumwense had emailed in, saying that he could not get from Croydon to the Strand because there was a strike on the Underground. No one made mention of the complete absence of Tube stations in Croydon…
Judge Nicklin allowed the council’s top lawyer to log-in remotely, too.
What do you do when a High Court clerk announces “All stand” and you’re watching proceedings from a table in your living room? I opted to stay in my seat.
Judge Nicklin arrived in the modern(ish) robes of a media judge, without any wig. Once seated, he talked us through the process – this would be a preliminary hearing only, held because of the apparent urgency expressed by the council, but there would be a full hearing later, once Inside Croydon had managed to get all lawyered up…
He invited Lewin to make his opening remarks. My notes, I have to admit, are a little sketchier than if I were simply observing procedures. But Lewin began talking about “non-disclosure”, and “confidential reports”.
And then he said something about “published accidentally as long ago as September”.
Judge Nicklin seized on this point. “I rather think that the documents have lost their confidentiality, don’t you?” the judge said, peering across the empty courtroom at Lewin.
The Judge asked Lewin how many times the documents had been accessed or downloaded in the month and a half they had been freely available via the website of Croydon Council. “I haven’t got evidence to demonstrate that today,” Lewin said, sounding a little crest-fallen. He’d not done his homework.
Judge Nicklin, however, had. “It seems to me that you’re trying to put the genie back in the bottle,” he said. I’d barely had to say two words so far.
Judge Nicklin had checked out Inside Croydon. He’d seen that we have nearly 20,000 people signed up to receive alerts when we publish content, and that we have had 16million page views. And he’d even found that we have 15,000 followers on Twitter. Our ad manager, if we had one, would be a big fan of Judge Nicklin.
“It’s a bit of a stretch,” the judge said, addressing Lewin, “that you can keep a secret which has been seen by 16,000 people.”
Lewin was definitely crest-fallen now. I’m sure I heard him say something along the lines of, “The horse has bolted, m’lud.”
I was getting a definite sense that Judge Nicklin didn’t think very much of the council’s case, and poor young Mr Lewin was getting a bit of a schooling from the bench as a consequence.
Having heard enough, and after thanking me for my submission to the court, the Judge cut to the quick. He mentioned something about the “Spycatcher principle”, from a notorious case more than 30 years ago where injunctions were used to gag other newspapers, His Lordship ruled that he would not allow any third-party injunction that the council had asked for, he rejected calls for already published articles to be removed from the website, and while he allowed iC to repeat material we have already published, he asked Inside Croydon to give an undertaking not to publish anything else from the documents.
I did not hesitate, and agreed.
We’re not done yet. Judge Nicklin has set aside half a day on November 28 for us to go through the whole thing again, this time with a different judge.
Much of today, meanwhile, was spent going through yet more court papers, eventually getting a High Court order carrying the Judge’s seal, and me getting a copy of the undertaking given in court printed off and signing it, taking it to Fisher’s Folly to place in the hands of the council’s £150,000 per year monitoring officer, Stephen Lawrence-Orumwense.
I waited in “corporate reception”. But Stephen Lawrence-Orumwense, the legal official at the cash-strapped council who had taken the decision to try to injunct on documents that the council had published itself, was not there.
He was working from home.
Best-guess estimates of the costs incurred so far by the council to have its hour in Court 13 yesterday? About £20,000. But hey, it’s only your money…
Read more: ‘Better than evens’ chance of winning Negrini legal case
Read more: #PennReport: No referrals sent to staff’s professional bodies
Read more: #PennReport wanted police probe into possible misconduct
Read more: #PennReport: Cover-ups and denial over Brick by Brick failure
- Inside Croydon has been delivering local community news since 2010. To support independent local journalism in Croydon, please sign up today as a supporter. Click here for more details
- If you have a news story about life in or around Croydon, or want to publicise your residents’ association or business, or if you have a local event to promote, please email us with full details at firstname.lastname@example.org
- Inside Croydon is a member of the Independent Community News Network
- By having a comment section, we provide all readers with an immediate “right of reply” on all our content. Details of how this works can be read by clicking here
- Inside Croydon works together with the Bureau of Investigative Journalism, as well as BBC London News and ITV London
- Inside Croydon: 3.3million page views in 2021. Seen by 1.6million unique visitors in that 12-month period