Information Tribunal orders NTC to Publish Cracks Reports, NTC orderd to publish hydrogeological reports by 2 May Options

[Simon Kirby]

Here's the rub: "...it is very hard to understand how a report dependent on the provision of data by a prospective defendant subject to a confidentiality agreement precluding publication of those data could have been intended for use in litigation at all, let alone litigation against the beneficiary of the agreement."

Indeedy. The agreement - in the view of the Tribunal - would appear to work like a "without prejudice" caveat, and it makes the reports inadmissible as evidence.

The reports are the only evidence that could prove the cause of the alleged subsidence, and without proof the Council have nothing to enforce their claim. It was still worth commissioning the reports of course because, as the Tribunal found, knowing the cause of the alleged cracking was a matter of operational concern for the Council and public quite apart from any potential use of the reports in litigation, but having received the reports there was very little point spending another £100k on legal and professional fees in preparation for litigation that could never be started with any sensible hope of success.

I don't think there's much the Council can say to convince me that they still have a winnable case - the Tribunal in effect says that the reports are useless as evidence, and if it's a toss-up between believing the Tribunal or the Council you'll understand if I side with the Tribunal.

I think the Council need to review their conduct of this dispute, and as they're incapable of looking critically at themselves I suggest that they need to commission an independent review - and CrackGate is not the only unresolved problem...

[Andy Capp]

So the only practical reason why the council would want to conceal the evidence is that it would expose a weak case against their pursuit of legal redress (i.e. running up a big legal bill). As the ruling pointed out, if this went to court, both sides would be required to hand over all evidence they intend to use in court, to the other side.

The other possibility is that the council may have inadmissible evidence in support of their position, but as a sign of goodwill, chose to keep the findings secret in the hope Costain would provide some 'goodwill money'.

It is bewildering to know what the council (or individuals in the council) are playing at.

[On the edge]

Dear all,

I disagree with The Information Tribunal ruling that the public has a right to see the hydrogeological reports. Such reports could be used as litigation. Then there is the insurance angle as well. I see the trouble here is that those that will read the report don’t have the intelligence to comprehend what they would have before them. I don’t know if anybody noticed the letter in the NWN where a Councillor said the public wouldn’t understand the report. He is right, they woundn’t. This report could create a world wind of stupidity and misunderstanding. Hopefully the council will use its top lawyers to fight to keep this away from the community.

We give people all sorts of rights and all this does is to create havoc and instability. That is why we have PMs and Councillors to work on behalf of those that can’t grasp the finer points of such complex reports. If they disagree then they will act appropriately on your behalf. We don’t allow monkey’s dictating to the Zoo keeper so therefore should we allow the ignorant to do the job that professionals have been trained to do?

Allow the professionals, whom you elected, to comprehend what is beyond you.

Yours,
Petra

Sir, you've actually made a superb case for the abolition of Newbury TownCouncil! Well done!

[Andy Capp]

Such reports could be used as litigation.

That is an irrelevance. Any data that is used is available to both sides.

Then there is the insurance angle as well.

What about insurance?

I see the trouble here is that those that will read the report don’t have the intelligence to comprehend what they would have before them. I don’t know if anybody noticed the letter in the NWN where a Councillor said the public wouldn’t understand the report. He is right, they woundn’t.

Then the council have nothing to fear; however, your assumption is wrong; the people who create the report are members of the public too.

This report could create a world wind of stupidity and misunderstanding. Hopefully the council will use its top lawyers to fight to keep this away from the community.

Why should the council be concerned with legal challenges where they are not the defendants? Unless the report showed criminal negligence on behalf of the council, but if that was the case that would be a compelling reason to publish.

We give people all sorts of rights and all this does is to create havoc and instability. That is why we have PMs and Councillors to work on behalf of those that can’t grasp the finer points of such complex reports. If they disagree then they will act appropriately on your behalf. We don’t allow monkey’s dictating to the Zoo keeper so therefore should we allow the ignorant to do the job that professionals have been trained to do?

If anyone were to launch a legal challenge, they would almost certainly seek professional advice.

Allow the professionals, whom you elected, to comprehend what is beyond you.

Evidently that is advice Newbury Town Council would have done well to heed.

[On the edge]

That is an irrelevance. Any data that is used is available to both sides.


What about insurance?


Then the council have nothing to fear; however, your assumption is wrong; the people who create the report are members of the public too.


Why should the council be concerned with legal challenges where they are not the defendants? Unless the report showed criminal negligence on behalf of the council, but if that was the case that would be a compelling reason to publish.


If anyone were to launch a legal challenge, they will almost certainly seek professional advice.


Evidently that is advice Newbury Town Council would have done well to heed.

I agree with you Andy C!

.....................but you've turned me into Petra ...aaaagh...is there a cure?

[Andy Capp]

The thing is, mankind has got where he is today because received wisdom is constantly challenged. People should have nothing to fear about the truth. Councillors are mangers and stake holders; they are not owners of anything. From what we know at the moment, the council have not tabled a legitimate reason for not publishing the first two reports.

[Simon Kirby]

The thing is, mankind has got where he is today because received wisdom is constantly challenged. People should have nothing to fear about the truth. Councillors are mangers and stake holders; they are not owners of anything. From what we know at the moment, the council have not tabled a legitimate reason for not publishing the first two reports.

Initially the Council indicated that they would be publishing the reports, but just weren't at the time because the thing was a work in progress. Not a legitimate reason to decline, but understandable perhaps.

Some time late 2013 (I think) they referred to a "confidentiality agreement" as the reason for being unable to publish. I am still suspicious about that. The "confidentiality agreement" is inconsistent with the Council's initial talk about publishing the reports, and it is incredulous that they should have weathered years of speculation and criticism about the non-publication of the reports without ever mention a "confidentiality agreement" until three years later.

It is particularly suspicious that they refused for no good reason to disclose the CA and then when ordered by the IC to publish it they redacted the date of the agreement. That suggests to me that there was something about the date that was embarrassing, and the only thing that I can think of is that the agreement was made later than the Council have admitted.

It's also notable that despite what Cllr Allen says about the CA being the reason the Council wouldn't publish, the Council didn't even advance that excuse at the Tribunal. The Council's substantive argument for not puslishing was their assertion of legal professional privelege. This exposes the Council's public position as dishonest, because it was entirely the Council's choice to claim privilege - a claim the Tribunal demolished as neither well-founded nor in the public interest.

The Council do indeed need to explain all that, and if the reports are inadmissable as evidence they also need to explain how they spent £100k pursuing an unwinnable claim - and their unwarrented hostility to public scrutiny has certainly hampered any public engagemt which may well have prevented this situation.

[Cognosco]

That tribunal had better watch out the Council may declare them vexatious too?

I am still wondering what else has to come to the public's attention yet especially concerning RUP?

I just hope that the electors have been making notes of all these goings on ready for the election decisions!

[x2lls]

I agree with you Andy C!

.....................but you've turned me into Petra ...aaaagh...is there a cure?

Oh dear, Petra is an anagram of EPrat!!

[Andy Capp]

I'm not sure if I have misunderstood the judgement, but it seems to say that any CA was not obtained through legal means. When the request to see the CA was it submitted, was it supplied? All I have seen is an email that referenced an agreement.




As have said before, I simply don't understand why the council have done what they have appeared to have done. They could have said the evidence is weak for the de-watering to be the problem and that would have been that. I do remember at the time they said one of the early investigations required more information that was needed from the developer. Perhaps the developer's information is damning, but the council are embarrassed about their strategy of obtaining inadmissible evidence. Perhaps that was a mistake by an individual they wish to conceal?

[Exhausted]

Allow the professionals, whom you elected, to comprehend what is beyond you.

Well Petra, thank you for your very patronising effort to convince us that the councillors are professional and have the ability to comprehend subjects that we the people have not. When the election comes round, we should perhaps ask for their professional qualifications before we vote for them. I'm not sure I like to be called a monkey, as I do have a grasp of technical subjects and I'm sure that I will not create a world wind (whirlwind actually) of stupidity and misunderstanding.

Using their top lawyers has been the whole problem with a council out of control. Perhaps you need to be reminded that what is in reality a small parish council, has already frittered away £100k of our money on legal advice

When you are talking about professionals, I wonder what basis you are using to advise us that you are more professional than a learned tribunal and are in a position to refute their decision which for sure they would have examined in detail.

Noted that you are also advising us that there is an insurance angle. Such a shame that the "professional" Town councillors didn't realise this and take some action in this direction.

There is a problem with our professional town council which is now very apparent. An out of control chief executive and finally, a very professional person who joined the council, could not continue to serve because of the inherent problems.

Carry on posting your nonsense by all means but you do need to think things through with a little more care so that you do not become ridiculed.

[Cognosco]

Carry on posting your nonsense by all means but you do need to think things through with a little more care so that you do not become ridiculed.

Good advice but a bit too late me thinks?

[Simon Kirby]

I'm not sure if I have misunderstood the judgement, but it seems to say that any CA was not obtained through legal means. When the request to see the CA was it submitted, was it supplied? All I have seen is an email that referenced an agreement.

That e-mail was it. Can you quote the bit of the judgment where you say it says the CA wasn't obtained through legal means - that's not how I'm reading it.

There are several exceptions to the duty to disclose under the Environmental Information Regulations and one of those exceptions is for information provided in confidence: "a public authority may refuse to disclose information to the extent that its disclosure would adversely affect ... the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;"

The Council didn't rely on that exception before the Tribunal. It would appear that they tried to make that argument late in the day in a private submission to the Tribunal but the Tribunal rejected it because they would have had to have asked for permission to introduce a new argument so late into the proceedings and they didn't have the courtesy to do that, and because the made the argument in a secret submission to the Tribunal when there was nothing sensitive to protect which simply denied the appellant the opportunity to challenge it.

The Tribunal didn't need to consider the Council's submission, but it did anyway and found that the CA wasn't protecting any economic interest of Costains - I'm curious to know quite why Costain would want the data it supplied to the Council kept secret - it's entirely possible that they couldn't actually give a stuff and that NTC had written to them asking for them to impose just such a condition - they could blame Costain for not publishing the reports but it was NTC's choice all along. That last bit is manifestly true because NTC asserted (non-existent) litigation privilege in the reports in order to try and keep they secret, but who initiated the CA is anyone's guess. NTC should have a record of that discussion, but can you be bothered to wait another 16 months to see it?

As have said before, I simply don't understand why the council have done what they have appeared to have done. They could have said the evidence is weak for the de-watering to be the problem and that would have been that. I do remember at the time though that they said that one of the early investigations needed more information that was needed from the developer. Perhaps the developer's information is damning, but the council are embarrassed about their strategy of obtaining inadmissible evidence. Perhaps that was a mistake by an individual they wish to conceal?

Yes, that's one of the possibilities that occurs to me.

[Petra]

It is clear you haven't read and understood the ruling yourself as you will see you are wrong on a number of accounts.

It was professionals that ruled against the council's argument, and if you read the ruling you will see inconsistencies with the council's position. The Information Tribunal decided unanimously that the council didn't have any reason to deny the information and the potential litigation argument was declared invalid.

I doubt there is not one councillor that has a better grasp of the hydrogeological report than any member of the parish, after all, councillors are 'normal people' like the rest of us. Just because a handful of people voted for them doesn't make them any more qualified to interpret the results than anyone else.

Dear Mr Capp,

1. Actually, I have read it.
2. Yes, you are right, professionals have ruled against the council’s argument. But they are not the same professionals that only have the councils interest and reputation at heart. As for the Tribunal’s unanimous decision, that may be their decision, but it is not the councils. I personally believe that the council has the superior hand here and the tribunal is only playing politics. Don’t forget that they can be challenged and it is not the end of this matter.
3. Yes, councillors are normal people, however, they’ve been elected to represent those that put them there. Usually the electorate votes in those that can grasp and more in tune than those voting them in.

I noticed that you quoted my words again and attributed them to Ms Edge, therefore I will allow your chosen representative to answer what I said to you.

Yours,
Petra

[Petra]

Petra

"That is why we have PMs and Councillors to work on behalf of those that can’t grasp the finer points of such complex reports"

Well you have just shot yourself in the foot again then eh?

It is clear from your statement that you don't understand that Councillors are only amateurs.
Especially the mob we have at the moment who are unable to comprehend even the simplest contracts etc.
Still perhaps they will be contacting you shortly to seek your professional advice on how to avoid having to publish the report that will prove both local authorities may have been totally negligent, yet again, and cost precept payers a fair wedge of money eh?

Perhaps you would be so kind as to inform us ignorant plebs who to vote for in the upcoming elections as it is probably beyond our comprehension to get it right whilst you are available?

Mr Coqnosco,

The first part of your diatribe (about shooting myself in the foot) I answered when replying to Mr Capp. As for your last paragraph. Your comments about yourself and your ilk being, and I quote, “ignorant plebs” answers your own question. Therefore, I believe it was rhetorical.

Yours,
Petra

[Andy Capp]

1. Actually, I have read it.

That wasn't clear from you first comment.

2. Yes, you are right, professionals have ruled against the council’s argument. But they are not the same professionals that only have the councils interest and reputation at heart.

Which is what justice and natural law is all about: unbiased judgement and thank the Lord for that.

As for the Tribunal’s unanimous decision, that may be their decision, but it is not the councils. I personally believe that the council has the superior hand here and the tribunal is only playing politics. Don’t forget that they can be challenged and it is not the end of this matter.

If the council wish to continue with their ridiculous argument, then that makes them even more stupid than they appear to have been so far. The best thing the council could do is just publish the documents. The council's performance on this right from start has been very poor and inconsistent. The judgement bears that out quite clearly.

3. Yes, councillors are normal people, however, they’ve been elected to represent those that put them there. Usually the electorate votes in those that can grasp and more in tune than those voting them in.

People vote for many reasons, but to assume that the average councillor has a better grasp of law and science engineering than any particular constituent is a laughable notion.

Your arguments remain incoherent.

I noticed that you quoted my words again and attributed them to Ms Edge, therefore I will allow your chosen representative to answer what I said to you.

That was just an editing error and unintentional.


The simple question remains: why are the council so determined to keep the reports and data secret.

[Exhausted]

. 2. Yes, you are right, professionals have ruled against the council's argument. But they are not the same professionals that only have the councils interest and reputation at heart. As for the Tribunal's unanimous decision, that may be their decision, but it is not the councils. I personally believe that the council has the superior hand here and the tribunal is only playing politics. Don't forget that they can be challenged and it is not the end of this matter. 3. Yes, councillors are normal people, however, they've been elected to represent those that put them there. Usually the electorate votes in those that can grasp and more in tune than those voting them in.

Who are these professionals that have the council's interest and reputation at heart. If by this you mean the councillors themselves then of course they now have to attempt to protect their tarnished reputation. The tribunal is not political and will have produced a judgement based on the facts, not one that is biased towards a political end or that of saving ones bacon.

Once again, your view that a councillor understands things which are beyond the comprehension of everybody else is just ridiculous and undermines just about everything which you write. Entertaining twaddle but that's about the mark of it.

I just hope that we can get a new and more engaging group elected with proper leadership when it comes time to mark our crosses on the paper.

[Simon Kirby]

Usually the electorate votes in those that can grasp

Are you sure that all our councillors have opposable thumbs?

[Andy Capp]

That e-mail was it. Can you quote the bit of the judgment where you say it says the CA wasn't obtained through legal means - that's not how I'm reading it.

Section 3 and 53 seems to imply it, but I suspect I'm misunderstanding to clauses.

[Simon Kirby]

Section 3 and 53 seems to imply it, but I suspect I'm misunderstanding to clauses.

To resist the duty to disclose the Council would have needed to rely on one of the exceptions provided by the Environmental Information Regulations. The Council relied on the Regulation12(5)( exception which excepts disclosure of information that would adversely affect the course of justice, and the Tribunal dismissed that assertion because the reports are not subject to legal professional privilege as the Council claimed. There are other exceptions which the Council might have relied on, 12(5)(e) and 12(5)(f), both of which protect the interest of the party providing the original information (so Costain). The Council didn"t actually rely on either of those exceptions. The Tribunal recognises that the CA imposed a duty of confidentiality, but that confidentiality wasn't protecting any identified interest of Costain so the exceptions wouldn't have made any difference as far as the duty to disclose under the Environmental Information Regulations was concerned. Exceptions 12(5)(e) and 12(5)(f) aren't in any case available for information on emissions as we had argued the reports were, but the Tribunal didn't need to rule on the emmissions question because the Council didn't actually invoke those exceptions.

In short, the CA may or may not be effective generally, but it wasn't enought to defeat the right to the reports under these specific Regulations and the Council didn't in the end assert the CA.