Town council told there are insufficient grounds to recover £200k costs run up after unsuccessful defence of judicial review

A town council has accepted the advice of a leading QC that there are insufficient grounds to make any claim with any likelihood of recovering costs after it was left more than £200,000 out of pocket when it unsuccessfully defended a judicial review claim brought by one of its councillors.

Ledbury Town Council had commissioned Richard Clayton QC of Ely Place Chambers to review the handling of the litigation.

The case arose out of sanctions imposed by the town council in 2016-17 on Cllr Elizabeth Harvey following a complaint by the clerk and deputy clerk.

Cllr Harvey was barred from sitting on committees or representing the council on outside bodies. These restrictions continued even after she was found by a Herefordshire Council-appointed external investigator, Jonathan Goolden of Wilkin Chapman, not to have been in breach of the code of conduct.

Cllr Harvey challenged the restrictions successfully by judicial review, with a High Court judge ruling that the council was not able to sanction her other than going through the procedural safeguards of a code of conduct process.

Mrs Justice Cockerill also found that the conduct of the grievance process through which the restrictions were imposed was unfair.

A report on Richard Clayton QC’s advice revealed amongst other things that:

• There were insufficient grounds to claim against the Herefordshire Association of Local Councils, which had advised at the start of Cllr Harvey’s case. Even if Ledbury could establish that HALC had acted negligently, the council would not be entitled to compensation as a result. The fact that the council relied on the positive advice of its QC to defend the case meant that HALC could not be responsible for any of the council’s subsequent financial losses. This was because the town council went on to take further advice from solicitors and barristers.
• The legal issues in the case were complex and that the mere fact that the view of QC instructed on Cllr Harvey’s case – namely that it had a 75% chance of winning the case – was rejected by Mrs Justice Cockerill provided no basis whatsoever for alleging that the QC had acted negligently. The town council had originally been advised by a junior barrister that the High Court would quash the council’s decision, but Ledbury decided its outside solicitors should seek advice from a QC with significant public law experience. The QC advised on several occasions that the council had not acted unlawfully in addressing the complaints against Cllr Harvey as an employment issue rather than under the statutory procedure prescribed by the Localism Act.

The report said the council was “satisfied that Mr Clayton rigorously considered all available options and have reluctantly accepted his advice that there is no realistic prospect of recovering any money back”.

In an annual report given last Sunday (28 April), Ledbury chairman Cllr Nina Shields said: “I very much hope that the new council will draw a line under this. Otherwise it will be like a festering sore that will waste energy and continue to do damage. Our solicitor has advised that to spend any more money on this will raise issues about the council’s duty of care.”