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A Christmas present to Croydon: another court victory

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CROYDON IN CRISIS: Our cash-strapped council has squandered thousands of pounds of public money to try to suppress documents that were in the public domain. Again. STEVEN DOWNES, Inside Croydon’s Editor, on the council’s latest failed efforts to gag this website

For cash-strapped Croydon Council, the local authority that claims it doesn’t have any money to pay for public services, it was no expense spared yesterday afternoon as they attended, mob-handed with a platoon of expensive lawyers, a tribunal hearing in the cause of covering up for their £192,474 per year chief executive, Katherine Kerswell.

Legalled up: Katherine Kerswell’s legal costs were paid for by the council

For the second time in barely a year, as Inside Croydon’s Editor, I found myself in front of a judge, making a case for openness and transparency, while expensively hired lawyers representing Croydon Council, paid for out of residents’ Council Tax, did their best to cover-up and withhold documents that were already in the public domain.

The last time this happened, in November 2022, Inside Croydon was effectively dragged into the High Court by the council’s lawyers who threatened a costly injunction because this website had re-published confidential documents that Croydon Council had itself already published (the italics are because even now, we cannot comprehend the full extent of the bat-shit idiocy of the council’s position).

Yesterday, it was more a case of iC stumbling into court proceedings. But the outcome was much the same. The council’s position on documents submitted to open court as evidence was equally indefensible, equally anti-democratic, and equally self-serving of the badly run, self-indulgent senior officials who inhabit Fisher’s Folly.

For three long weeks, Inside Croydon had been following the crucial Employment Tribunal case brought by Hazel Simmonds, Croydon’s former executive director of Gateway, strategy and engagement, against the council for constructive and unfair dismissal, with allegations of victimisation, harassment and racial and sexist discrimination thrown in, too. Kerswell was also accused of racial discrimination.

As reported yesterday, Simmonds’ case failed to provide evidence to convince the Judge and the Tribunal members, and her complaint was dismissed.

But what emerged over the course of the last three weeks at the London (South) Employment Tribunal was a more wide-ranging examination of the chaos and mismanagement within Croydon Council that led to its financial collapse in 2020 than anything that had previously been discussed in public. Not least because, in her role as council CEO, Kerswell has made sure of that – even to the point of suppressing the findings of the Penn Report from the public for more than two years.

But for justice to be done, it must be seen to be done.

At the opening of the case, counsel for the council bellyached about the fact that Inside Croydon had had the audacity to actually report a public hearing over a matter of considerable public interest.

Employment Judge Adam Leith had to remind the council’s (and therefore Kerswell’s) lead barrister, Patricia Leonard, that the proceedings were all in open court and therefore free to be reported. Which we duly did, along the way filling notebooks with testimony given by Kerswell, Simmonds and other witnesses.

‘Heavily in favour’: Judge Leith ordered the council to release the trial documents

But as we watched the remote hearing and listened to the cross-examinations, Tribunal observers were only getting half the picture. For nearly two years, council employees have been accumulating volumes of evidence, thousands of pages of witness statements, emails and meeting notes, for use in the defence of the council’s, and Kerswell’s, reputation.

Kerswell’s own witness statement ran to 101 pages, the longest submission at the hearing, according to Judge Leith.

None of these documents were being made available to the public or observers of the hearing.

So when, say, acid-tongued Leonard cross-examined Simmonds or Guy van Dichele, or Simmonds, suffering tonsilitis, coughed her way through questioning of Kerswell, every time there was a reference to this bundle or that file, anyone watching the court proceeding was only getting half of the evidence.

Inside Croydon’s legal adviser, Ebenezer Grabbit of the long-established high street firm of Sue, Grabbit and Runne, suggested that we might get a fuller picture of what was being discussed if we put in a request to the judge. Which we did.

It took six days for our email to the court to reach Judge Leith. By the time it did, last Tuesday, a simple request for documents which were, effectively, in the public domain, had become a formal “application to the court”. The judge said he would deal with the application after delivering the verdict.

The judgement was due at 2pm Thursday. That was then postponed until 10am Friday. It took Judge Leith three hours to summarise the entire case. Once that was done, he suggested a 30-minute lunch break, after which, “We shall deal with the application from Mr Downes.”

So what was I asking for?

Back on December 14, Day 9 of the hearing, I had originally written to the court to request three emails which the Respondents – the council and Kerswell – had suddenly added to their mountain of evidence. At the time, they had seemed to be of some significance.

In addition, I had requested the written evidence submissions of some of the more integral witnesses: Hamida Ali, the council leader in the immediate aftermath of the financial crisis, Katherine Kerswell, for obvious reasons, Hazel Simmonds, ditto, and Alison Butler, the former councillor and deputy leader of the council who was cabinet member for housing.

Last Wednesday, when Judge Leith asked that I re-submit my “application”, I added a request for the opening and closing statements of both sides, from Leonard and Simmonds.

Croydon Council opposed this application.

Just consider that for a while.

Bottled out: former council deputy leader Alison Butler failed to turn up to give evidence under oath

The council wanted not to have to release evidence that had been given in open court.

Instead, Leonard suggested, iC could make an appointment to visit the council offices, where we would generously be allowed to go through hard copies of the documents, but would not be allowed to make any copies. The council offices were to close at 4pm yesterday for the Christmas break, only opening again on December 28.

All of the documents exist in digital format and had been shared multiple times between the Tribunal and the two sides of the dispute. For some reason never explained, Leonard, on behalf of Kerswell and the council, did not want to release the documents to the media in that format.

Judge Leith asked iC to explain why we had requested the documents.

“I am making this application so that testimony and evidence that has been heard in open court and placed in the public domain can be … errr… placed in the public domain,” I somewhat bumbled from my hastily scribbled notes, written instead of lunch.

“This has been a case of considerable public interest. It is important to have access to these documents to assist with the accuracy and context of my reporting of a significant case.”

In light of the judgement that had already been handed down, the request for the emails that had been admitted late as evidence was withdrawn. In the case of Butler’s statement, I also accepted that as the ex-councillor had failed to show up to give her evidence under oath, this would not now be available publicly.

Leonard, for the council and Kerswell, spoke against the application.

Goodness knows how much this senior barrister, her pupil, the two lawyers from solicitors Browne Jacobson and the council’s own senior brief were costing the residents of  Croydon for this additional couple of hours of legal representation. There’s a Freedom of Information request just waiting to be submitted, as soon as anyone from the council are back at Fisher’s Folly.

Not for the first time in her oral submissions to the Tribunal over the past week, Leonard threw in something about how one her clients, Kerswell, had somehow suffered “invidious abuse” in the reporting of her work as Croydon’s best-paid council employee.

When the judge asked iC to respond, we simply offered that we “do not recognise” such a claim.

What the council didn’t want you to see: paid for by Council Tax-payers, the authority wanted to prevent the release of Kerswell’s statement

Judge Leith and his fellow panel members withdrew for 15 minutes to deliberate.

When he returned, the Judge was strongly critical of the council’s obstructive and obdurate position in wanting to make the documents as unavailable as possible, and pointed out Leonard had presented no evidence to support her claim of “invidious abuse”. To this observer, it suggested that he thought she had made it all up, too.

Judge Leith then reminded his legal colleagues of the principles of open justice, of how it was important for public scrutiny and for people to understand how the system works.

It was, Judge Leith said, the Tribunal’s default position to provide access to its proceedings to the public, and he and the panel members had found “heavily in favour” that the council should provide all the eligible documents to Inside Croydon by the close of play yesterday.

Which they duly did, I suspect more than a tad grudgingly.

Inside Croydon is not allowed to publish the documents themselves, but we’ll be transcribing all the most interesting bits over the coming weeks.

Croydon Council 0 – Inside Croydon 2.

Merry Christmas, Mrs Kerswell.

Read more: Tribunal judge finds no evidence of racism or unfair dismissal
Read more: ‘You seem to be trying to put the genie back in the bottle’
Read more: CEO Kerswell could face crucial cross-examination at Tribunal
Read more: #PennReport wanted police probe into possible misconduct

A D V E R T I S E M E N T


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