Simon Lee and Bates Wells Braithwaite / Conflicts of Interest
One of the early 'sleepers on the line' which Lee launched was to see if he could get Nick Evans and I excluded as trustees; in effect so we could not participate in an investigation into the undersale of land.Lee did this in conjunction with the Chair, acting without either the approval (or knowledge) of the boardBWB were instructed to use public law arguments to try and intimidate us, revolving around conflicts of interest.This is the letter from BWB to Luck which provided their advice. Lee then used the letter to try to block any further progress.-----------------------------------Bates Wells & Braithwaite London LLP10 Queen Street PlaceLondon EC4R 1BEMr Keith LuckWimbiedon & Putney CommonsRanger's OfficeWindmill RoadWimbledon CommonLondonSW19 5NRLEGALLY PRIVILEGED AND CONFIDENTIALBy email: keith.luck@yahoo.co.ukDear KeithWimbledon and Putney CommonSummary of Our AdviceEmail: r.mccarthy@bwbltp.com15 July 20151. We have been asked to revisit the advice previously given on conflicts of interest andspecifically to add in the public law perspective. Previous advice had not needed toexpressly address the public law considerations, as being closely aligned to charity law onmatters of conflicts of interest and bias and given the particular context of the decision toappoint an independent surveyor, there were no live public law difficulties.2. This advice purely relates to public law it does not address issues of governance(paragraphs 3.3-3.6 of our 30 April letter) nor other relevant issues in terms of the Code ofConduct, duties of care under employment law owed by the trustees to executive staff andduties of confidentiality as trustees.3. In summary, our view is that it is still the case that all trustees may partake in the decisionmaking further to the decision to appoint an independent surveyor and to make a furtherreport to the Charity Commission. The position is finely balanced in relation to theinvolvement of John Cameron and Nick Evans and may need to be revisited in light offuture developments. In brief:(a) Those trustees who were involved in the original granting of the easement (Sir IanAndrews, Derek Frampton and Dr Ros Taylor (albeit Dr Taylor joined the board in2013») do not need to resile at this stage, (and our advice of 30 April 2015 stillstands (in particular paragraph 4.3). This will need to be kept under review and inparticular if there is a material loss to the Charity following the valuation;(b) Nick Evans, John Cameron, Prue Whyte and Shirley Gillbe, need not withdraw ongrounds of having been actively involved in the earlier litigation (either by reason ofbeing the claimant, being a member of Friends of Putney Common ("FoPC") orhaving contributed to the costs); and(c) Nick Evans and John Cameron specifically do not need to withdraw on the basis onthe grounds of predetermination, but this may need reviewing in light of futureconduct in particular given the strength of their publically expressed views prior toelection combined with their role in the earlier litigation.4. With regard to the legally professionally privileged material, we have not been instructed toadvise on whether it is advisable for the trustees (with Nick Evans and John Cameron notpartaking in the decision) to waive the privilege and to allow the two trustees access to thedocuments (that are legally privileged) that BWB used in putting the instructions to thevaluer and the Charity Commission letter together.Detailed AdviceConflicts of Interest/Bias: Public Law5. This section of this letter first addresses the public law aspects of these matters. As youknow, WPCC is a public authority amenable to judicial review. All actions need to bereviewed in light of both charity law and public law. The two are closely aligned. It has notuntil recently been necessary to consider the latter specifically, as the decision to appointthe independent valuer was one which was clearly acceptable under both fields of law: atthat stage, all that was being decided was to initiate steps that would enable an assessmentof potential loss such that there were no particular interests of any individual trustees clearlyaligned either way in this decision. There being no conclusions drawn as to the propriety ofprevious action taken by trustees in the commissioning and appointment of the independentsurveyor, it was not necessary for any of those trustees to declare conflicts of interest or towithdraw from decision making. It is not uncommon for charities to have to investigateprevious decisions/action where there may have been irregularities and in light of the factthat the trustees at the time had been acting as one and professionally advised, it was andis our view that those trustees did not need to resile from the decision to appoint thesurveyor.6. As you will recall, BWB advised that the future decisions would need reviewing in light of theoutcome of the surveyor's advice, including the involvement of trustees previously engagedin the granting of the easements. However, as new developments unfolded (i.e. it becomingnecessary to go further back to earlier periods than previously anticipated in order toinstruct the valuer and also BWB becoming aware of more details of the role played by JohnCameron in the litigation and in public statements by John Cameron and Nick Evans aroundthese issues), it did in our view become necessary to revisit the question of conflicts ofinterest/predetermination and specifically to address public law. The critical exercise toundertake in public law terms, given its greater emphasis on views held by trustees than incharity law, was to consider and analyse the correspondence between those trustees andthe charity before and after election.7. The law on bias/predetermination is contained in case law (not statute) and we havereviewed a range of cases in order to extrapolate the relevant principles. The issue isquintessentially fact specific and an application of those facts to the law is a difficult andnuanced matter. The relevant principles are, in our view set out in detail in appendix A.The documents taken into account are listed in the summaries, prepared by Simon Lee andamended by Melanie Carter to add in extra relevant quotes in italics. Those summaries areat appendix B. Please note that we have not been present at relevant meetings withtrustees nor privy to their oral communications. Our research is reproduced in full so as toenable trustees to be fully informed as to both law and facts.8. In brief however, we see the relevant principles being distilled into the following:(a) The test for bias in public law is whether the fair-minded and informed observer,having considered the facts, would conclude that there was a real possibility' ofbias. The test is to be applied in the light of all ascertained material facts andcircumstances.(b) Public law makes a distinction between actual and apparent bias and predispositionas against predetermination.(c) In this case the most relevant issue in relation to the trustees previously involved inthe granting of the easement is the question of apparent bias and in relation tothose previously involved in the earlier litigation and/or campaigning against thedevelopment, the issue of pre-disposition versus predetermination i.e. having aclosed mind to the issues.(d) The case law on the latter indicates that the threshold for a finding of bias onaccount of previously held views is high and that "clear pointers" are required. Thecritical period for assessment is post-election as trustees, as those seeking electionwere free to have policy positions on which they campaigned, but post-electionmust be able to have an open mind on those issues.Trustees involved in original decision to grant easement9. There is no question of actual bias, rather the issue is whether in light of the possibility oframifications/liability for those trustees previously involved in the granting of the easements,there could be said to be a real possibility of an appearance of bias (apparent bias).10. We have not seen any evidence that there may be an appearance of bias at this stage ofdecision making. As developments unfold, in particular as to whether there is any materialloss and whether and to what extent there may be breaches of charity law, this will need tobe revisited.Those involved in the previous litigation, campaigning against the development11. We have considered very carefully the position of Nick Evans, John Cameron and PrueWhyte and Shirley Gillbe from a pUblic law position. The relevant facts include thefollowing:(a) Nick Evans:Was the claimant in the judicial review alleging that the charity had no powerto grant the easementWas at a material time, a member of the FoPC which was the claimant in theHigh Court planning appealCorresponded with the charity at length prior to election including makingrepeated Freedom of Information (FOIA) requests (to an extentduplicated/repeated and overlapping with those made by John Cameron)relating to the sameWas involved in making a complaint to the Charity CommissionStood for election on a manifesto clearly opposed to the development andasserting that the easements had been granted at an undervaluePost-election, continued to raise these issues, calling for information andsupporting the self-report to the Charity CommissionHas expressed concern that the draft Charity Commission report does notindicate the potential breaches with sufficient seriousnessDespite stating that he accepted the decision of the Court of Appeal in thejudicial review in his original statement in the conflicts of interest register,expressed a different opinion on a website (PutneySW15) after the June 2015Annual Open Meeting(b) John Cameron:Was at a material time, a member of the FoPC (which as an organisationoriginally backed Nick Evan's judicial review and was the claimant in the HighCourt planning appeal)Personally paid the costs in Nick Evan's judicial review and was heavilyinvolved in the management of the caseCorresponded with the charity at length prior to election including makingrepeated Freedom of Information (to an extent duplicated/repeated andoverlapping with those made by Nick Evans) requests relating to the sameWas involved in making a complaint to the Charity Commission and to thecharity in relation to these mattersStood for election on a manifesto clearly opposed to the development andasserting that the easements had been granted at an undervaluePost-election, continued to raise these issues, calling for information andsupporting the self-report to the Charity CommissionHas expressed concern that the draft Charity Commission report does notindicate the potential breaches with sufficient seriousnessCorrespondence post-election is clear as to his view on whether or not therehave been breaches, but open as to the possible outcome of the valuation(c) Prue Whyte:Made small contributions to the funding of the previous litigation (£50 and£100)(d) Shirley Gillbe:Stood for election on a manifesto alleging a failure by trustees12. Our conclusions on the above are that:4(a) In relation to Nick Evans, whilst his active engagement in opposition to thedevelopment and manifesto pledges might have indicated a likelihood of a closedmind post-election, his correspondence and public statements (see website postingpost 2015 Annual Open Meeting) since election have been measured in tone andindicative overall therefore of his retaining an open mind. In this regard, it is to benoted that he refers to the duties of trustees and the need to see the investigationthrough to its outcome in order to determine the appropriate action.The change of view on the outcome of the judicial review is a key piece of evidencethat he may not have an open mind to the issues at hand, but overall there is notthe "clear pointers" required for a finding of predetermination (see the Persimmoncase).The position should be kept under review, in particular to assess whether the toneof engagement with other trustees and charity staff deteriorates (perhaps indicativeof a campaign not appropriate to the role of a trustee and an animosity on theseissues).(b) In relation to John Cameron, whilst his active engagement in opposition to thedevelopment and manifesto pledges might have made it likely that he had a closedmind, his correspondence since election has been, whilst intemperate at times andtherefore perhaps indicative of animosity to anything but a negative outcome fromthe legal review and valuation, has been tempered by references to the duties oftrustees. In our overall view, while he clearly has very strongly held views, thesehave to be balanced against other statements such as that to be found in his emailof 26 April 2015. Thus, whilst finely balanced, our conclusion is there is insufficientinformation to show that John Cameron has a predetermination in relation to thecurrent matters.In this regard, the most key piece of evidence is that his correspondence, albeitvery negative and critical of executive staff and at times other trustees, does makereferences to the duties of trustees and in places the need to see the independentvaluation through to its outcome in order to carry matters forward. His commentsare assertive and seemingly closed minded as to there being previous breaches bytrustees, but on its own this is insufficient to amount to the "clear pointers".The position should be kept under review, in particular to assess whether the toneof engagement with other trustees and charity staff deteriorates (perhaps indicativeof a campaign not appropriate to the role of a trustee and an animosity on theseissues).Please note that this conclusion does not bear on the issue of any employment lawimplications of the treatment of staff and therefore caution ought to be exercisedwhen being critical of executive staff, so as to avoid undermining the duty of trustand confidence which must exist between the charity and its staff.(c) In relation to Prue Whyte, the mere fact of the contribution to the earlier litigation, isinsufficient to meet the high threshold of a finding of predetermination.(d) In relation to Shirley Gillbe, the mere fact of the manifesto statements with regard tothese issues, is insufficient to meet the high threshold of a finding ofpredetermination.13. With regard to those previously involved in the earlier litigation and/or campaigning, theposition overall is that, whilst finely balanced in relation to Nick Evans and John Cameron(given the extent of their prior opposition to the development) and subject to any change inapproach, and in any event in relation to Prue Whyte and Shirley Gillbe there is no need forthese trustees to withdraw.14. The position should be kept under review and further advice sought if appropriate.Conflicts of Interest/Bias: Charity Law15. Rosamund McCarthy has reviewed her previous charity law advice in light of the above andbelieves the conclusions drawn to be consistent.Legal Professional Privilege16. The following advice is predicated on an assumption that there is legally professionallyprivileged material in the documents held by BWB relating to the previous litigation. Wehave not carried out a detailed analysis in this regard but are aware there may be a numberof documents that fall Within this category.17. It seems to us, again without having considered this in detail, that it may be open to thecharity to agree that the privilege in any such information could be shared with all trustees,even those who were involved in the previous litigation. The charity can waive any legalprofessional privilege and could do so on express terms that any such disclosure is on alimited basis, the recipient agreeing to receive the information on the basis that it is keptconfidential and that it is agreed that the charity has not waived its privilege more Widely.18. However, we cannot advise whether it is in the interests of the charity or advisable to dothis, without considering the issues further and we would need to give you an additional costestimate to do so.Other matters19. As trustees, Nick Evans and John Cameron are entitled to see all the documents that arenot subject to legal privilege in respect of the proceedings they brought against the charity.In general terms, to provide an opponent to a dispute with legally privileged documentswithout a prior agreement in place could potentially open up the charity to a claim thatprivilege has been waived more widely - not just in relation to the documents included inthe bundle of documents for the surveyor but in other documents too. All trustees would ofcourse still have to keep such documents confidential but it may not be desirable to providea former opponent of the charity with privileged legal advice in relation to the claims madeagainst it. It may be that the charity can, if it is advisable, provide them with the documentsin the bundle for the surveyor only, on appropriate terms being agreed which would protectit from a claim that all otherwise privileged documents should be provided to them.20. We have not considered this issue in any great details and will send to you copies of all thedocuments we have, which will include documents that may be subject to legal privilege andthe chronology supporting the draft Charity Commission letter. They should obviously not bedisseminated more widely without the question of privilege having been addressed first, andappropriate terms having been agreed.We trust the above is of assistance.Best wishesYours sincerelyMelanie Carter and Rosamund McCarthy(There were an additional 19 pages of evidence provided by Lee to BWB to support the letter, which can be provided if anyone is interested)
John Cameron ● 2874d8 Comments