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PRE-ACTION PROTOCOL LETTER

Alan Share v Bindmans LLP

The claim alleges breach of contract and negligence, a breach of their fiduciary duty of care to me; and it seeks a refund of £2,500 and damages.

Bindmans LLP, without good and proper reason, said that an action for judicial review against the Local Government Ombudsman that I wished to initiate would be “bound to fail”. Although contracted to write a Pre-Action Protocol Letter, they said that professional protocol prevented them, as solicitors, and me, a non-practising barrister, from doing so, and thereby effectively frustrated any further move on my part in that direction.

That Letter would have required a written response to my complaint from Local Government Ombudsman, as this Letter now requires a written response from them.

1 Preface

This Letter explains the basis of my Claim against Bindmans LLP.

It also sets out the consequences of their conduct. My complaint, if pursued, would have flagged up the danger of allowing an auto-phobic cycling lobby, Sustrans, over- influence UK’s transport policy in London, Newcastle and other UK towns and cities almost totally neglecting the arrival of electric, autonomous vehicles there in the next five years, providing charging points for them and ignoring the waste of over £1.2bn when savage austerity cuts elsewhere.

2 Background

• Gosforth High Street, Newcastle
  

One of the more interesting things about the High Street is the paucity of cyclists! They are not even expected. Half way along it there is a small square in front of Trinity Church, opposite Gosforth Shopping Precinct with its Sainsbury, WH Smith, Boots, Virgin Money, Naked Deli, &c and alongside a spanking new Gym, where you will see lots of cycles, but of the stationary kind. Trinity Church is a community hub for 78 organisations in Newcastle, not just Gosforth.

In the square, just a handful of cycle stands and a few lonely bicycles.

It’s not very surprising. Gosforth is the solidly respectable part of Newcastle – Jesmond to the East, the professional part serving two Universities and two great NHS hospitals, is where some cycles are around.

The streets adjoining the High Street, Victorian and Edwardian, are without garages and are always lined with parked cars on both sides. I can’t see the older residents taking to Lycra.

Meanwhile the High Street is not a friendly place for cyclists. It is the main North/South arterial road through Newcastle. Many of the city’s buses from Eldon Square to the outlying areas North and East of the city pass along it, stopping there along the way.

It could not be narrower. And toxic, carcinogenic fumes from diesel buses, cars and lorries are especially noticeable in rush hour.

So, cycling there is not just hazardous but unhealthy as well. With the NE weather, five degrees colder than London, wetter and windier there is another factor.

London, Copenhagen, Amsterdam, Berlin are all on an entirely different bit of planet Earth. Not just in relation to Brexit. If you want more dramatic evidence come to Newcastle and visit John Dobson Street. See the brand new segregated cycle lane with traffic gridlocked alongside it. The odd cyclist you will see gives way to the skateboarders enjoying their new park. £18m down the Swannee!

One final word about the High Street. Congestion is unavoidable, especially in rush hour. At the northern end, there is a very busy intersection with Salters Road going West and Church Road going East. Just before the intersection is a bus stop for all the bus services. Truly the neck of the bottle.

Half way along the High Street well over a hundred cars parked in the open car park above Gosforth Shopping Precinct enter and exit the carpark at a set of traffic lights. Other pedestrian controlled traffic lights on the High Street slow traffic down. Loading and unloading make their contribution.

• Cycle lanes and Red Lines

Some people have a terrible habit of believing that what they want for themselves, everyone else either wants or should want, when they have totally different needs. Many do not want it at all.

Their tunnel vision and egocentricity is a toxic mix, especially when just a small number of them get their hands on the levers of power, and legitimate complaint is suppressed.

Their mistaken policy self-perpetuates, and those responsible keep trying to make it work regardless of expense.

I saw this first with Special Educational needs and the closure of over 100 special schools, some very good ones. My book and my website Death of a Nightingale detail the unfortunate consequences.

Here they say that they are saving the planet, combating obesity, reducing pollution with fewer cars on the road and keeping fit. In London, they make a virtue out of necessity. For increasing numbers, it is a low-cost way of getting to work.

Pitching what they want for themselves for everyone else with their different needs, they constantly inhabit the world of “Wouldn’t it be nice if?”, when it never will be, and they never factor into their plans human fallibility and the unguarded moment.

Sadly, in the UK urban cycling will always be hazardous to life and limb – I, for one, know six serious injuries and one fatality. And for the next few years, before the arrival of electric autonomous vehicles, compounded by the VW emissions scandal, there is the long-term health hazard inhaling toxic carcinogenic fumes.

And, add into the mix Human Rights and, as I have to keep saying, the mischief word Equality. Cyclists believe they have an equal right to be of the road. Certainly, they have a right to be there, but it is different not equal to the rights of other road users and sometimes is in conflict with them. You see this all the time in London, there at times almost unresolvable.

Enter Sustrans, the cycling charity and lobby based in Bristol, Britain’s first Cycling City. Enter too Nick Clegg, deputy Prime Minister in the Coalition Government and Boris Johnson, London’ Mayor. Enter the Times newspaper.

“Double the number of cyclists in UK by 2020.” Sustrans vision: ‘By 2020, four out of five local journeys will be made by bike, foot ‘or public transport.’; and,

“We think a street should be designed for residents rather than those driving through, with slower speeds and slower moving traffic, so people are more inclined to walk and cycle for their journeys, some or all of the way.” SUSTRANS Annual Review 2013-2014.

Slower speeds mean more congestion and greater pollution, for those for whom time is money, more cost and more road rage, and for more cyclists more long- term damage to health.

Follow the money Sustrans received: In 1995, £43.5 million from the Millennium Lottery Fund. In the 2004/05 their income was £23.6 million: £2.1 million from supporters’ donations, £8.5 million from the Department for Transport and a further £2.5 million from the National Opportunities Fund. In 2007 £50m fromthe Big Lottery’s Living Landmarks to fund Connect2. In 2014/5 of the £114m that Nick Clegg as Deputy Prime Minister announced to double the number of cyclists on the road by 2020, some I expect directly into their offices and some indirectly as local authorities buy in their services.

See their reach: On the back of this, their offices: Bristol (head office), London, Cardiff, Edinburgh, Belfast, Peterborough, Nottingham, Birmingham, Newcastle on Tyne, Manchester and Leeds.

See the short and long-term pain and suffering and cost to NHS:
The Times recently reported a 43% increase in serious injuries to cyclists in UK in last ten years. The BBC recently reported 22,988 accidents including 80 deaths for cyclists in London in last 5 years with a £m of being spent on known accident blackspots that accounted for only 391 of them.

The Royal Society for the Prevention of Accidents ROSPA said that statistics show:

• Around 75% of fatal or serious cyclist accidents occur in urban areas.
• Almost one quarter of the cyclists killed or injured are children.
• Around three quarters of cyclists killed have major head injuries

A report published by the Royal College of Physicians and the Royal College of Paediatrics and Child Health: Air pollution is contributing to about 40,000 early deaths a year in the UK. And Sustrans want twice as many people to cycle in it.

See how Sustrans has worked this out in Bristol. Over £23m spent. More cycles yes, but sharing road space with them more not fewer cars – a 15% jump in the number of cars on the road from 165,334 in 2001 to 190,530 in 2011. Not surprisingly with this, an increase in accidents to cyclists both in number and rate, up 39% from 2000 to 2014 and up 63% from 1994 to 2014, stats here from the Department of Transport. The NHS could have done without that.

£2.3million pounds spent on signs reducing 30mph to 20 mph. Journey times increased by 50% and emissions likewise. Vehicles are more efficient at higher speeds. Nearly 200 people die from these emissions every year in Bristol. And children are positively encouraged to cycle in them.Understand what this all means: Sustrans, a cycling lobby, is not just the bull in china shop, it has been put in charge of it! And they have no interest whatsoever in the coming revolutionary change to electric autonomous vehicles that should now pre-empt all other transport concerns.

These are its patrons: Glenys Kinnock MEP, Rt. Hon Neil Kinnock, Jan Morris CBE, Dr Alex Moulton CBE RDI FREng, Dervla Murphy, Steven Norris, Jonathon Porritt CBE, Richard Rogers, Bettina Selby, Rt. Hon the Lord Waldegrave of North Hill, Rt. Hon Sir George Young MP, and, Vox Populi , Jeremy Paxman and Jon Snow.

In short, the entire political establishment, the mandarins in Whitehall, the high priests in the media all backed it and City Councils like Newcastle did what they were paid to do. Stand in the way of it, and you stand in the way of a steam roller.

And it gets worse! It gets very much worse! No doubt on the advice of Sustrans pursuing their absolutely idiotic vision, despite savage austerity cuts elsewhere, in an aging population, a spend of £1.2bn. They actually boast a plan for 2040!

Five Year Plans were bad enough for those who can remember Stalin’s 5 Year Plans in Russia and George Brown’s here in the UK.

The government, despite major austerity cuts elsewhere, has published its £1.2 billion long-term plan to make cycling and walking the natural choice for shorter journeys.
The government wants cycling and walking to become the norm by 2040 and will target funding innovative ways to encourage people onto a bike or to use their own two feet for shorter journeys.

Plans include specific objectives to double cycling, reduce cycling accidents and increase the proportion of 5 to 10-year-olds walking to school to 55% by 2025.

The £1.2 billion is allocated as follows:

£50 million to provide cycling proficiency training for further 1.3 million children £101 million to improve cycling infrastructure and expand cycle routes between the city centres, local communities, and key employment and retail sites

£85 million to make improvements to 200 sections of roads for cyclists

£80 million for safety and awareness training for cyclists, extra secure cycle storage, bike repair, maintenance courses and road safety measures £389.5 million for councils to invest in walking and cycling schemes

£476.4 million from local growth funding to support walking and cycling

In addition, the government is investing an extra:

£5 million on improving cycle facilities at railway stations
£1 million on Living Streets’ outreach programmes to encourage children to walk to school

£1 million on Cycling UK’s ‘Big Bike Revival’ scheme which provides free bike maintenance and cycling classes.

And for an illustration of built-in chronic inertia it would be difficult to beat this:

“Under the Infrastructure Act 2015 , the government is required to set a ‘Cycling and walking investment strategy’ for England. This is the first of a series of shorter term, 5 year strategies to support the long-term ambition to make walking and cycling the natural choice for shorter journeys by 2040.”

The insanity is entrenched. It will need another Act of Parliament to undo the damage. The Department of Transport in London has allowed itself to be dominated by an egocentric, auto-phobic cycling lobby and its supportive media, and it would appear to be totally unaware of the urban environment North of Watford.

What it should be doing, as a top priority pre-empting all other concerns, is to anticipate the imminent arrival of electric autonomous cars, vans, buses and lorries and planning for it, notably providing easily available charging points and parking spaces. There is no sign that the present staff is up for this.

In Gosforth, I know the location of about 6 charging points. If the City Council doesn’t wake up to it, all those owners of diesel engine cars without a garage will be unable to switch to an electric car with nowhere to charge one. The Newcastle City Council also needs to get its priorities right.

Newcastle Council’s plans for cycle lanes and red lines on Gosforth High Street This is what it was all about.

The Council’s Ambitions Grant bid included “to achieve 12% of all journeys under five miles by bike in the next ten years.”

“Delivering cycling and improvement strategy in Newcastle – a 10-year strategy 2011- 2022“ included the following: “The overarching aim is to develop a cycling culture where 20% of all trips under five miles are undertaken by cycle by 2021.” They quantified this:”1,232,177 additional trips are forecast”. And went on to say: “This will be achieved by drawing up a list of ‘join up’ routes that are at present partially or completely isolated. Research by Sustrans (a National Cycling Charity) has shown that the most successfully spent money has been that on urban cycle paths.”

If you look at the bid and the consultation paperwork you will see that the City Council hired Sustrans to do all the work. Their fingerprints are all over them. Without money and encouragement from London nothing would have happened.

 Why did I join many people objecting to the cycle lanes?

I am a senior citizen resident in Gosforth. I enjoy easy access to all the amenities available on the High Street, shopping, restaurants and coffee bars, my bank &c. I have been chair of the Tyneside Decorative & Fine Arts Society, now known as The Arts Society Newcastle. This is one of the 78 organisations in and around Newcastle using Trinity Church for its meetings. For many years I was chairman of Philip Cussins House a Residential Care Home, 200 metres away from the High Street. I know something good when I see it. I can recognise an act of civic vandalism in the making when I see that. I have seen it before with the threatened closure of Barbara Priestman School in Sunderland fifteen years ago.

So, I joined many others in Gosforth, objecting to the plan of the City Council for. cycle lanes and red lines on Gosforth High Street. All saw it as a disaster in the making.

When I sent in my letter of protest this is what Jonathan Higgins, the Project Manager said to me by way of reply: The current cycling figures are lower than we would like and these changes will help increase the numbers of cyclists using the junction and the high street. Currently there are less than 1000 cyclists a day using the High street but we want to see that grow so that 20% of all trips in Newcastle use this mode. Given that 30,000 vehicles use the Great North Road per day for return trips then it is not unreasonable to see that figure grow to 3 or 4 thousand return trips by bicycle.

A survey showed that about 70 cyclists a day currently use the High Street and battle was joined.

Why do I pursue this?

• I hate hypocrisy.

Ombudsmen purporting to represent the citizen against the State, but here represent the State against the citizen.

Bindmans LLP, Human Rights lawyers, defending my human rights, but here denying me my right to complain.

Helena Kennedy QC is a Human Rights lawyer and Labour Peer. She chaired the Power Inquiry in 2004 to investigate the decline in popular participation and involvement in formal politics; probably well paid to do so. In her report in 2006 she argued correctly that there is a need for a re-balancing of power between the Executive and Parliament, between Central and Local Government and between the Citizen and the State and made 30 recommendations. Since then neither she nor her Party, serving the narrow interests of the public service unions, have done anything to implement them. Her good intentions pave the road to Hell.

AND I CLAIM £2,500 AND DAMAGES

(Extract from Bindmans LLP Advice – with my comment)

6.Public law recognises three categories of bias: actual, presumed and apparent. An allegation of bias is serious and should only be made on the basis of clear evidence. In short, we see no evidence in the papers beyond assertion and disagreement with the conclusion reached by the LGO that suggests that the LGO was biased (whether actually, presumedly or apparently) in rejecting your complaint against the Council.

Bias is the absence of neutrality. If you read the dossier it is much easier to sense the deliberate withholding of neutrality, and its absence, than its presence, giving the benefit of every single doubt to Newcastle City Council. There is also the adage Suppressio veri, suggestion falsi. Allegations as to detailed breaches of protocol by both Newcastle City Council and the Local Government Ombudsman are totally ignored. Suppressio veri is enough.

7. The most frequently raised category of bias is apparent bias, the test for which is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased. In our view, that test is not met here. In particular the mere fact that, at various stages throughout your lengthy correspondence with the LGO, staff within the LGO office upheld prior decisions of their colleagues would not, in our opinion, lead a ‘fair- minded and informed’ observer (or, therefore, a Judge) to conclude that there was a real possibility that those individuals were biased. To establish bias some factor outside the decision-making process itself is required to give rise to a real possibility of bias. If this were not the case, then every decision of a decision-making body would demonstrate bias against the person to whom the decision was adverse.

This is a nonsensical argument made on the hoof not on the basis of any legal authority. It should never be argued, just because you don’t like it, that an adverse decision is a biased one. It is the way in which a decision is reached that can evidence that. The authors of the Advice create their own Aunt Sally here. In any event, they totally ignore the coconut. The failure of Newcastle City Council to identify their “overarching aim” in their consultative procedures and the role of Sustrans in relation to it. The malign role of the multimillion £ national cycling charity and cycling lobby, Sustrans, is the “outside factor” if you need one; it provided and sustained the Council’s hidden agenda.

24 As a non-practising barrister, you will be aware that barristers are prevented by their professional obligations from advancing any contention that they do not consider to be properly arguable. It is not necessary for me to speculate about the motivation but, in the context of the Advice as a whole, this paragraph is intimidation and it perverts the course of justice in that it effectively prevented me pursuing judicial review proceedings against the LGO. As solicitors, we are similarly prevented by the SRA Code of Conduct 2011 from drafting any documents, relating to any proceedings, containing a contention that we do not consider to be properly arguable. We are therefore unable to draft a pre-action protocol on your behalf since, for the reasons given above, we do not consider there to be any properly arguable grounds for judicial review. In the context of my alleging that you have declined to respond to repeated requests that you answer my criticisms of this Advice, this further evidences your lack of duty of care – your negligence. Your complaints policy that I successfully challenged, also points in the same direction.>

*Donogue v. Stevenson, [1932] AC 562 House of Lords , Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465 (HL), Caparo Industries Plc v Dickman and others; HL 8 Feb 1990, Henderson v Merrett Syndicates Ltd [1994] UKHL 5 where Lord Goff said “I am of the opinion that this House should now, if necessary, develop the principle of assumption of responsibility as stated in Hedley Byrne to its logical conclusion so as to make it clear that a tortious duty of care may arise not only in cases where the relevant services are rendered gratuitously, but also where they are rendered under a contract. This indeed is the view expressed by my noble and learned friend Lord Keith of Kinkel in Murphy v Brentwood District Council [1991] 1 AC 398, 466, in a speech with which all the other members or the Appellate Committee agreed.”. and Smith v Eric S Bush, a firm etc; HL 20 Apr 198 approving Ross -v- Caunters (a firm) ChD ([1980] Ch 297 )where the court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.

Also, for the record, I take the view that Bindmans claimed money held in escrow prematurely.

Alan Share MA Oxon
Barrister at Law Non-practising

19 September,2017

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