The Day of Reckoning

The civil harassment claim originally known as Hofschröer and others -v- Hofschröer and others finally reached its conclusion on 26th July, 2016.

Launched and funded by North Yorkshire Police in January 2015, under the codename Operation Hyson, it originally featured nine claimants and three defendants. One of the defendants, Peter Hofschröer, had judgment entered against him in November, 2015 and another, Timothy Hicks, reached a compromised settlement last month.

The last two remaining protagonists were former police authority Chair, Jane Kenyon-Miller, and well known citizen journalist, Nigel Ward. Mrs Kenyon-Miller who was represented by Simon Myerson QC and junior barrister, Hannah Lynch, sought a declaration from the court that Mr Ward, represented by well known London-based human rights barrister Ian Brownhill, had harassed her – and relief by way of a wide-ranging injunction which will include the removal of articles written about her from two internet news websites to which Mr Ward has contributed.

The trial was heard before HHJ Mark Gosnell, who is the senior civil court judge for both the Leeds and Bradford court centres. It was listed for two full days in Leeds County Court, although there was always doubt as to whether it would go the full distance. There were just three witnesses due to give evidence: Mrs Kenyon-Miller, Mr Ward and NYP Force Solicitor, Jane Wintermeyer.

Mr Myerson in his opening address appeared to confirm the likelihood of an early finish, as he set out a trial timetable. Mrs Wintermeyer was not mentioned in the schedule to appear in the witness box.

HHJ Gosnell responded by saying that he maintained the view underscored at a recent application hearing that this matter really ought to have been settled by amicable resolution and he questioned why a two day trial, to resolve what he described as relatively narrow issues, was actually necessary. His Honour referred, particularly, to arguments advanced by Mr Brownhill in his skeleton which posited the question: if the issue over injunction failed then the remaining harassment claim was entirely disproportionate.

Against this background, Mr Myerson rather surprisingly told the court that ‘the reality is that resolution (from his client’s point of view) is not possible‘.

He was interrupted by the judge who told the court he was quite frustrated by this situation and enquired as to the sticking point between the parties, such that they might be discussed in open court without prejudicing the trial if, in fact, it proceeded. With a smile, he said ‘I’m an experienced judge, with many years on the bench, and in the old days I would have invited counsel into my chambers and banged heads together‘. He did, however, stress the need for transparency in a trial in which so many were interested in its outcome.

Mr Myerson and Mr Brownhill then both agreed that legal privilege could be waived and that it would not, later, affect HHJ Gosnell’s ability to try the matter if negotiations to settle the claim failed.

The judge then asked the question, more generally: ‘Why are we all here?’

He mused that the alleged harassment matters took seed some years ago and he was persuaded that the two factions started off with good intentions. But his overriding view was that a settlement should be possible and that any costs issues shouldn’t stand in the way of that.

Both counsel then accepted the judge’s invitation to ‘spend half an hour kicking ideas around‘ in his chambers. He felt that a little ‘judicial encouragement‘ might be prescriptive in all the circumstances of the case. Court was, accordingly, adjourned at 10.50am.

Following a 66 minute adjournment the court resumed sitting at 11.56am. A draft consent order has been agreed between the parties. Mr Myerson’s tightly drawn assertion that ‘resolution is not possible’ had taken just over an hour to unravel.

The terms, essentially, are that certain articles will be taken down from the North Yorkshire Enquirer website, the Real Whitby website will be approached to take down some others, although there is no guarantee that the Editor of the latter website will agree – and Mr Ward will not write further about Mrs Kenyon-Miller for a period of two years, or unless she returns to public life.

Mr Myerson stated that it was accepted on all sides that Mrs Kenyon-Miller was an Alderman and such status would not affect the undertaking but, oddly, excluded mention of other roles that suggest that she has not, in fact, left public life at all.

For example, it is well known that she is still a leading light in the organisation of Whitby Regatta (see here), an event that has dominated the social and tourist calendar in the seaside town for over a century; a Governor at Caedmon College in Whitby (see here) and a Director of the Whitby Fishing Industry Training School (see here). She is also still the ‘go-to’ spokesperson for the local press on policing matters as this Scarborough News article bears testimony (read here).

Interestingly, the above article in which she is quoted extensively, was published nine months after Mrs Kenyon-Miller issued proceedings against Mr Ward.

There is, most probably, an innocent explanation as to these omissions as Mr Myerson (or his client) would, surely, not wish to deliberately mislead the court?

Mr Ward’s costs in defending the claim are to be paid by Mrs Kenyon-Miller (or, more accurately, North Yorkshire Police), either on an agreed basis between the parties or, failing that, HHJ Gosnell will list a short hearing at which the issue of quantum will be determined by him.

HHJ Gosnell commended both parties for coming to an amicable solution without the matter being tried and the undoubted ordeal of the two witnesses giving witness box evidence.

The hearing closed shortly after 12 noon with some gratuitous remarks from Mr Myerson, directed at the press bench, and concerning the number of lawyers (or aspiring lawyers) appearing for Mrs Kenyon-Miller. Including himself, there appeared to be seven in the courtroom. Mr Myerson claimed they were not all being paid to be there.

Interestingly, no costs schedule for the claimant had been filed with the court, or served on Mr Ward, as is customary practice. This, at least for the time being, concealed the value of public funds allocated to Mrs Kenyon-Miller.

The matter of what has actually been spent on this almost entirely fruitless pursuit of Mr Ward will be subject to further enquiries of both North Yorkshire Police and its Police Commissioner.

 

Page last updated: Wednesday 27th July, 2016 at 1555hrs

© Neil Wilby 2015-2016. Unauthorised use or reproduction of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from and links to the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

And then there were two……

The long-running Operation Hyson saga is finally set to reach its conclusion on Tuesday 26th and Wednesday 27th July, 2016 at Leeds County Court.

Hyson is the codename given to a wide ranging NorthYorkshire Police-funded civil harassment claim that originally involved nine claimants against three defendants. The documents produced for the first hearing, in February 2015, needed fourteen lever arch files to contain them.

Amongst the claimants were the Chief Constable, Dave Jones, and Deputy Chief Constable, Tim Madgwick; Chief Superintendent Lisa Winward and recently retired Superintendent Heather Pearson.

Two of the defendants, who are no longer part of the claim, were Grandma B justice campaigner, Peter Hofschröer, and citizen journalist, Timothy Hicks. Mr Hofschröer had judgment entered against him last November when he refused to take any further part in the proceedings – and Mr Hicks had an agreed consent order sealed by the Court on 30th June, 2016.

This sealing of the Hicks consent order was confirmed in open court by the trial judge, HHJ Mark Gosnell, at an application hearing on 7th July, 2016 which concerned some housekeeping issues upon which the two legal teams acting for the remaining parties to the action were unable to agree.

It is understood that undertakings have been given by Tim Hicks to all the claimants, which includes other members of the Hofschröer family. To the effect that there would be no future contact with the claimants for at least two years – and some of the 150+ articles published by Mr Hicks would be requested to be taken down from the two internet news websites to which he has contributed. Namely, Real Whitby (nineteen articles) and the North Yorkshire Enquirer (twenty-six articles). Fourteen of the articles have URL’s common to both websites.

No order for costs or damages was made against Mr Hicks.

It was also confirmed by the judge that eight of the claimants originally ranged against Nigel Ward, another citizen journalist, had discontinued their harassment claims against him. The claimants, including the four serving and retired police officers, are now all liable to pay the legal costs of Mr Ward incurred in defending his reputation.

The one remaining claimant against Mr Ward is Jane Kenyon-Miller, a former Borough and County Councillor but, perhaps, more widely known as the former Chair of North Yorkshire Police Authority.

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Pictured above: Nigel Ward and Jane Kenyon-Miller

The application hearing before HHJ Gosnell on 7th July was to decide on two issues: Firstly, a relatively straightforward point as to whether Mr Ward’s second witness statement in the claim could be filed out of time, following a change of legal team in May of this year. Ever the pragmatist, the judge ruled that the one remaining claimant was not prejudiced by late service, the overriding objective under Part 1.1 Court Procedure Rules (CPR) was met, and the evidence was relevant to the issues to be tried at the final hearing. Accordingly, the statement was allowed into the claim.

The second issue was much more controversial: It was said that investigative journalist, Neil Wilby, had conspired to breach a consent order that had been agreed by the legal teams acting for the original nine claimants and Messrs Ward and Hicks. It was also alleged in court that Mr Wilby had ‘re-published’ or ‘re-advertised’ material about some of the claimants in collusion with Mr Ward. By so publishing, it was further alleged that they had adversely affected the credibility of Mrs Kenyon-Miller. The means of doing so was alleged to be by Mr Ward passing information to Mr Wilby that gave him ‘special knowledge’.

A declaration was sought from the court over the alleged breach of undertaking – a very serious matter indeed – and permission was also sought to for the claimants to access all emails and text messages between Ward and Wilby concerning Operation Hyson.

The two articles at the heart of the controversy were Crompton and Jones: Two of a Kind and Inn of last Resort (read in full here) which both appear on this website. Two of a kind has never been published, and still remains password protected, the Inn of Last Resort makes no mention at all of Mrs Kenyon-Miller, the one remaining claimant.

Counsel for Nigel Ward, Ian Brownhill, instructed by Dave Holley and Neil Heffey of DDE Law in Liverpool, made submissions to the Court on the basis that the order sought was too broad; there was no nexus between the issues to be tried and the materials sought; Article 8 convention rights were engaged; there is no viable argument under CPR upon which to ground such an application and it amounted to nothing more than a ‘fishing expedition’ by the claimants. It was further submitted that the application made on behalf of Mrs Kenyon-Miller ‘was completely without merit’.

Hannah Lynch, the junior barrister representing the former Police Authority Chair, instructed by solicitor Nick Collins of Weightmans in Leeds, appeared to visibly wilt under the pressure of attempting to rescue what always seemed, from the press seats, to be a lost cause. The leading barrister retained by North Yorkshire Police, Simon Myerson QC, did not appear.

In the event, HHJ Gosnell ruled that neither the conduct of Mr Ward, nor the two articles in issue, ‘doesn’t go anywhere near showing that he was in breach of the undertaking’. He also ruled in favour of Mr Ward on the disclosure of text messages, emails issue and said what was sought by the claimants was neither ‘relevant’ nor ‘proportionate’.

Accessing text messages was always a red herring, anyway, as Nigel Ward doesn’t own a mobile telephone.

Costs of the second application were awarded against Mrs Kenyon-Miller, who remains publicly funded at the behest of her long-time political ally, PCC Julia Mulligan. The costs of the first application will be determined by the outcome of the final hearing. In legal parlance, ‘costs in the cause’.

In an unusual step, at the end of the hearing, the judge directly addressed Mr Ward, who was sat in the public gallery watching proceedings unfold. His Honour explained about the Hicks settlement and reminded both Mr Ward, his legal team and the lawyers representing Mrs Kenyon-Miller (who was not in court), that it might be the best solution for all to consider a pragmatic settlement being negotiated by the parties, and their representatives, as opposed to the significant expense of a trial being incurred.

HHJ Gosnell observed that, whilst the trial might well devolve into ‘a two day mud-slinging exercise‘ between the two remaining protagonists, he was not the one paying for it. His role was simply to ensure a fair trial took place. The not inconsiderable costs would fall to the ‘loser’ at the end of the final hearing. Whichever of the two that might be.

Nothwithstanding the fact that Mr Ward and the two legal teams were invited to think about this point very carefully by the judge, it seems that the trial will go ahead on the 26th after all.

A very interesting two days in store, as it all appears to boil down to this: A police force using one of its former top officials, its own force solicitor as a supporting witness, and a wholly disproportionate amount of public funds, to front a civil court claim that seeks to silence one of its main critics.

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Page last updated: Monday 22nd July, 2016 at 1830hrs

© Neil Wilby 2015-2016. Unauthorised use or reproduction of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from and links to the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Photo credits: North Yorkshire Enquirer

Cost of silencing police force critics now approaches £1 million

Tuesday 9th February marked the first anniversary of the initial hearing of a civil harassment claim that is known, curiously, as Hofschröer and others –v- Hofschröer and others. On the face of it, a family dispute gone wrong concerning title to a property formerly owned by a deceased father and an ailing mother.

But behind that domestic façade lies three other matters of significant public interest:

Firstly, this dispute principally concerns the widely publicised ‘Grandma B’ case in which both North Yorkshire Police and York City Council have been criticised heavily over the treatment of disabled World War Two veteran, Barbara Hofschröer. Her son, Peter, has been fighting for justice, on behalf of his mother, since 2008.

Secondly, two citizen journalists who write for the website news magazine, North Yorkshire Enquirer, are also defendants in what appears to be an attempt to silence them from publicising the shortcomings of the police, and other public authorities. The two scribes, Tim Hicks and Nigel Ward are best known for their work exposing scandals involving the late Peter Jaconelli, for many years the face of the seaside town of Scarborough, and the country’s most notorious sex offender, Sir Jimmy Savile.

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Thirdly, this civil action has been publicly funded on the authority of Julia Mulligan, the Police and Crime Commissioner for North Yorkshire (NYPCC). This move, which many believe is unlawful, and a grotesque waste of public money, has allegedly cost taxpayers a sum approaching a million pounds already.

There are nine claimants listed on court papers accessible to the public. They have been identified as three serving police officers and six civilians (one retired police officer, a former Police Authority chair, a former Council social worker and three Hofschröer family members). The direct legal funding this group has received already is believed to be in excess of £300,000 or £33,333 each, give or take small change. The precise figures have been requested from both the police, and the NYPCC, but they have elected to break freedom of information law rather than disclose the latest invoices from their lawyers. An earlier disclosure put the lawyers’ fees at £164,919 up to mid-September, 2015 (Read FoI outcome here).

The three serving police officers involved in the harassment claim are the Chief Constable, Dave Jones; the Deputy Chief Constable, Tim Madgwick and Head of Uniformed Operations, C/Supt Lisa Winward. The retired officer is ex-Supt Heather Pearson and the former NYPA chair is Jane Kenyon-Miller (pictured below alongside Mr Madgwick). A very powerful group indeed, who have allegedly already spent £450,000 internally in trying to stem the flow of criticism against their police force, by pursuing a criminal ‘investigation’ codenamed Operation Rome. The Crown Prosecution Service twice rebuffed approaches by North Yorkshire Police to permit charges to be made against Mr Hofschöer and Mr Hicks. Mr Ward was not, at any time, interviewed or even contacted by police in connection with this matter.

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On 20th January 2015 civil court papers were, ostensibly, served on the three defendants without any prior notice. The Court’s own strict rules demand that such a step is taken under what is known as pre-action protocol. Clearly, this requirement was not followed and there is no explanation yet available why the police, the NYPCC and their legal team chose to act in such a way. On any independent view, it had the appearance of an ambush.

By this time, Peter Hofschröer was on remand in HMP Wandsworth having been arrested by North Yorkshire Police detectives outside the magistrates court in York on 4th December, 2014 whilst trying to file papers against other members of his family that he believed would protect the interest of his mother. He claims, quite reasonably, that court papers concerning the civil claim made by the nine defendants – including his brother, sister-in-law and nephew, did not reach him prior to his transfer from Wandsworth to HMP Hull.

In Nigel Ward’s case, the court papers were sent to the wrong address and left on the doorstep outside an empty property for forty-eight hours, accessible to public inspection. North Yorkshire Police, surprisingly, did not refer themselves to the Information Commissioner’s Office (ICO) over this calamitous data protection breach, including personal data concerning their own two most senior officers. Mr Ward has, quite correctly, reserved all rights concerning the unlawful disclosure of his own personal data.

At the first hearing in Leeds High Court on 9th February, 2015 the claimants sought an interim injunction against the two journalists – and Mr Hofschröer – that effectively ordered the defendants to take down articles published about the nine claimants, and prevented each of the three defendants from contacting the claimants by phone, email or in person. It was a draconian move, and the police-funded claimants were represented at court by two barristers, Simon Myerson QC and Hannah Lynch. These legal heavyweights were instructed by leading Leeds law firm Ford and Warren (since taken over by Weightmans).

This second phase of the North Yorkshire Police action, codenamed Operation Hyson, was launched following advice given to them by ‘a leading, specialist barrister’, believed to be Mr Myerson (pictured below) after Rome had fallen.

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The two journalists were both represented by London human rights barrister, Ian Brownhill, instructed by Nottingham solicitors, Bhatia Best. Recruited at very short notice, the lawyers performed a minor miracle in reading a huge volume of paperwork, and preparing a defence, over the weekend before the first hearing.

The outcome of that court hearing was in two parts: An interim injunction was granted against the absent, and unrepresented, Mr Hofschröer and a consent order was sealed by the judge, His Honour Mark Gosnell, which effectively maintained the status quo between the claimants and the two journalists. It meant, in real terms, that none of the articles complained about, by the claimants, were taken down by any of the defendants, including Mr Hofschröer who has no access to a computer whilst held in jail.

Mr Brownhill had also raised the issue of ultra vires that, in layman’s terms, means there is serious doubt in his mind about the legality of public funding being used, by the police, to finance civil litigants in a harassment claim.

Subsequent hearings over Operation Hyson took place at Leeds Combined Court, before HHJ Gosnell, in June and November, 2015. The matter was transferred from the High Court to the County Court at the first of these hearings, at which directions were given to all parties in preparation for a trial that was scheduled to begin on 7th December, 2015. At the later hearing – which was listed as a pre-trial review – summary judgment was granted in favour of the nine claimants against Mr Hofschröer after he elected not to take part in the proceedings citing breaches of his Article Six convention rights. This left the two journalists as the remaining defendants in the claim. The judge ordered that the December trial date be vacated and a further case management hearing to be listed for 20th January, 2016. HHJ Gosnell also advanced the view to counsel representing both sides that every effort to settle the matter should have been made by that date.

The January hearing, conducted in the judge’s chambers by telephone conference, resulted in no settlement being reached and, as a consequence, a trial window opened by HHJ Gosnell between April and July, 2016 with a time estimate for the final hearing of seven days. This is to allow an additional period for the claimants to file further evidence in support of their claim against the journalists, a year to the day since they issued proceedings. The Court have recently confirmed that the trial is set to open on 20th July, 2016.

A trial of this duration is likely to place a further burden on the taxpayer of around £100,000, given that there is no reasonable prospect, based on recent legal precedent, of the litigation achieving its two-tier objective. A harassment finding for each of the nine claimants against each of the two remaining defendants, is the first hurdle. Only if that threshold is reached could the court consider that an injunction against two journalists was the appropriate remedy.

A press statement concerning the outcome of the January 2016 hearing was requested, from the PCC and the Chief Constable, during a recent Police Scrutiny Board meeting held a few days afterwards, but the opportunity was declined by both police chiefs. The reasons for doing so bear no examination (see Scrutiny Board podcast here).

There are also the substantial internal costs incurred by the North Yorkshire Force Solicitor, Jane Wintermeyer, and her staff, to consider. Marshalling nine claimants and instructing the two Weightmans solicitors dealing with the matter, over a period of fifteen months, would not come cheap. Mrs Wintermeyer also canvassed other high profile public officials, including Rebecca Reed, a senior manager engaged with the Independent Police Complaints Commission (IPCC), prior to the issue of proceedings in order to add substance to the North Yorkshire Police’s Rome and Hyson investigations.

During the January 2016 case management hearing, the issue of ultra vires and abuse of process was raised again by Mr Brownhill. He was told by HHJ Gosnell that the question of whether this claim falls to be determined as vires or ultra vires, is in his view, an arguable case. But, not one that would be heard before him in the County Court. A separate public law challenge would have to be mounted in the Administrative Court. One of the defendants, Mr Ward has confirmed that this process will soon be in train.

The Police and Crime Commissioner originally claimed to have sought ‘independent legal advice’ on the vires issue on 12th January, 2015 (read her formal statement here) but has, so far, not disclosed the invoices from her solicitor and counsel that would prove that point, following a freedom of information request. Mrs Mulligan was prepared to break the law rather than either disclose the information, or admit it doen’t actually exist. Her latest claim is that the advice was not provided in writing by the ‘leading barrister’ involved in January 2015, but given verbally in a meeting on 15th October, 2014. A meeting at which it is known Mr Myerson was present, by reference to his invoice sent to NYP that covers the day in question.

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Mrs Mulligan (pictured above with Chief Constable Jones) undoubtedly faces a difficult few weeks ahead as both the merits of Operations Rome and Hyson, the subsequent civil court trial, and the source of it’s funding, come under intense scrutiny during the forthcoming PCC election campaign.

Since this article was first published on 7th February, 2016 information has been obtained about a referral from the Parliamentary Committee for Public Accounts to the National Audit Office concerning the legality of the decision to spend public money financing private claims (read more here).

The press officers for both North Yorkshire Police and the Police Commissioner have been offered the opportunity to comment but none has been forthcoming, so far.

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Page last updated on Sunday 1st May, 2016 at 0945hrs

© Neil Wilby 2015-2016. Unauthorised use or reproduction of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from and links to the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Photo credits: Twitter (@SCynic1), North Yorkshire Enquirer and Office of Police and Crime Commissioner for North Yorkshire