The wpcc Draw A Line Board Report....
Committee(s):Wimbledon and Putney Commons ConservatorsDate(s):8111 June 2015Item no.09.15.9Subject:Update on the Putney Hospital Site Report of: Chief Executive of Wimbledon and Putney CommonsFor DecisionNOT FOR PUBLICATIONSummaryThis report provides an update and proposed ways forward regarding the Putney Hospitaltransactions, following further advice from BWB in their most recent letter of the 7th August2015.Recommendations:1. Given the advice from BWB on the 15th July 2015 and subsequent advice on i h August2015 in relation to:a) access to legally privileged information, all trustees agree to sign a declaration asset out in paragraph 2.4 of this report;b) confirming their trust and confidence in BWB, all trustees sign a declaration as setout in 2.6 of this report;2. If the Board are unable to agree the above, it is recommended that the Board draw aline under the current investigation into the former Putney Hospital transactions on thebasis that to pursue the issue further is not in the best interests of the charity.1. Introduction1.1 On the 15th July 2015 the Board received advice of BWB in respect of their furtherconsideration of Conflicts of Interest and specifically the potential issues of Public Lawof which they had become aware and they had been obliged to draw the attention ofthe Board (see Appendix 1). In summary, that advice, based on their consideration ofthe significant amount of documentation requested by BWB, was that all Trusteescould still partake in the decision to appoint an independent surveyor and to make afurther report to the Charity Commission. The position was finely balanced in relationto the involvement of two Trustees, which BWB advised might need to be revisited inlight of further developments.1.2 The advice confirmed that the Resolution of the Board of the 11th May 2015 tocommission an independent review of the circumstances surrounding the sale ofaccess rights at Putney Lower Common in 2012 was legitimate.1.3 In preparing instructions for the appointment of an independent valuer, BWB advisedthat there were likely to be documents that were legally privileged in relation to thelitigation brought against the charity in earlier years. At that stage they had not been1instructed to advise whether it was advisable for the charity to waive the privilege andallow all Trustees access to the documents.1.4 The Chairman, in consultation with the Finance and Investment Committee, agreedthat BWB be instructed to determine which, if any, documents are legally privileged,but based on a fee ceiling of a further £3,000.2. Advice from BWB2.1 In their further advice of the 7'h August 2015 (see Appendix 2) BWB made it clear that,under the 1871 Act, the Conservators have a duty to act collectively. Where a meetingcannot reach unanimous agreement, under case law relating to public and charitableTrusts, it can come to a majority decision.2.2 In respect of privilege and rights to inspect documents, having analysed thedocumentation provided they identified a number of documents which containedprivileged information. BWB explained that the privilege contained in any advice givento WPCC, either now or in the past, is owned by the body corporate. It is not specific toany individual, whether a member of the previous or current Board.2.3 BWB's advice at Paragraph 13 starts:"If there was ever a doubt as to whether any particular Conservator might use materialfor an improper use, we suggest that he or she should be asked to agree expressly inwriting to what is no doubt implied in any event (namely, that confidential materialwould be kept confidential to the charity, that the Conservator in question will not seekto re-open any concluded litigation and that the material in question would not be usedfor any purpose contrary to the best interests of the charity) ...". It then concludes"If any Conservator refused to sign a document confirming those matters, the charitywould be entitled (unless there was some very good explanation for the refusal) todraw an inference that the Conservator in question was seeking to exercise the right ofinspection for an improper purpose ..."2.4 Given the issues above, and in the spirit of the Nolan Principles of public life, it isrecommended that all Conservators be asked to sign a declaration on the charity'sheaded paper stating:"I confirm that, in accordance with the WPCC Confidentiality Policy, I will respectthe confidentiality to the charity of any information to which I have access, includingany which might contain Legally Privileged material, in respect of the former PutneyHospital site and will not use it to seek to reopen any concluded litigation or for anypurpose contrary to the best interests of the charity. "2.5 BWB have also expressed concerns about the basis of their continued professionalrelationship with WPCC. BWB are prepared to continue to act for the Conservators, onthe basis of the existing Letter of Engagement, but only if they receive a letter signedby all Conservators confirming that they retain our trust and confidence.2.6 It is also proposed that on the same headed paper as the declaration above, allConservators be asked to sign the undertaking set out below:"Having read BWB's letter of i h August, I confirm that I have trust and confidence inBWB continuing to represent Wimbledon and Putney Commons ("the Charity'). "3. Implications3.1 The Board reached a unanimous decision at its meeting on the 11 th May 2015 tocommission an independent review of the circumstances surrounding the sale ofaccess rights at Putney Lower Common in 2012.3.2 In terms of proceeding, having already expended £41,000 of the charity's resources toobtain the advice of one of the country's leading charity law firms, the test for theBoard, in acting collectively, is to sign the above declarations, giving a clear statementof its intent, to proceed on the above agreed course of action.3.3 Although the Vice Chairman and Chairman of Governance Committee has suggestedthat there be a pause in the efforts to reach a consensus on Putney Hospital, thedevelopments of the past month have not unfortunately given any indication thatpositions held will materially alter.3.4 Failure to achieve a collective view on the way forward is only likely to result in moredivisions, incurring the charity in further legal costs - particularly if new lawyers are tobe appointed to start afresh - without any assurance that they would not come to thesame recommendations as BWB. The time taken by the Putney Hospital issues hasdiverted the attention of officers and trustees from focusing on the work required toimplement the recommendations of the Governance Review and necessary to put thecharity on a more sure footing. It was also apparent from the recent Open Meeting,there is a substantial body of external opinion that Levy-payers money is not beingappropriately used, damaging the reputation of the charity and diverting funds from thecore business of managing the Commons. In these circumstances the Board may wishto draw a line under the further investigations into the former Putney Hospitaltransactions.3.5 If the Board considers drawing a line under this issue, it is still considered essential toundertake facilitated mediation, as recommended by the Charity Commission enablingthe Board to endeavour to work effectively together in the future.4. Conclusion4.1 To demonstrate clearly and unequivocally that information will only be used in the bestinterests of the charity and to reaffirm trust and confidence in BWB all Trustees areasked to sign the declarations set out in this report. If this cannot be achieved then theBoard should consider drawing a line under further investigations into the formerPutney Hospital transactions
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