It is a serious matter publicly calling into question the judgment of top-flight human rights lawyers and its founder, rightly highly eminent, a friend since University days, and now retired. But then it is also a serious matter having written a book Kafka’s Cycle – slow death of a complaint that my publisher declines to publish because a lawyer in that firm, judex sua causa, says that if I say anything that is defamatory they will sue but refuses to read the book and identify the alleged “falsehoods and distortions” in it that, in his view, fall foul of the 2013 Defamation Act and which, if they did, I have said that I would delete.
When the Covid-19 Pandemic is over, as assuredly some time it will be, the question will be posed as to whether the State was alert to the warnings, and afforded the protection it should have done to its front line medical and care staff, indeed to all in the front line, ambulance drivers, porters, cleaners &c. My book is a case study all about red and amber warning lights permanently set to green by the system. It would contribute to that enquiry. The conduct of the legal firm is part of the story.
Before I begin, I must set the stage.
This is about cycle lanes for substantially no cyclists in Newcastle on Tyne. The preliminaries a tale of three cities, Bristol, London & Newcastle. First some uncomfortable facts from the real world, not the dream world of the cyclist.
You need to remember from my first post that Cycling UK says that “cycling accounts for less than 1% of road traffic and under 2% of trips in the UK. In 2018 data released from the Department for Transport showed UK cycling levels remained flat. The graph linking then since 2002 to now is an almost flat line, staggering between 14 and 18 trips made per person, per year, and landing at 17 trips averaged in 2018.
In 2016, 18,477 cyclists were injured in reported road accidents, including 3,499 who were killed or seriously injured. These figures only include cyclists killed or injured in road accidents that were reported to the police.
Bristol calls itself Britain’s First Cycling City.
This is no doubt due to Sustrans, a cycling charity and lobby that bases itself there. You need to know one or two things about Sustrans – the late Bernard Levin lamented single issue fanatics. Sustrans qualifies. Their enthusiasm for two wheels disguises a near pathological dislike of four. Their vision is that is that one driver in eight will give up their car for a bicycle for all journeys under five miles. “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.
£3m spent on 20mph signs in Bristol. More cyclists, but ironically more motorists too. And a greater increase in cycling accidents than elsewhere in UK, up 62% in recent years. The recipient of £130m of State support.
Their 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, Jeremy Paxman and Jon Snow. These are good examples of the metropolitan elite who know all the right answers unfortunately to the wrong questions, notably why so many people outside London, unlike those living in Denmark and Holland, feel it somewhat insane to rely on a bicycle, unsafe and unhealthy, on narrow and already congested urban roads with unpredictable weather unless absolutely necessary. And not without its hazard on rural rides between the hedgerows.
That brings me to London where for increasing numbers it is necessary given the cost of housing, prohibitively expensive to buy and exorbitantly expensive to rent and the cost of other forms of transport.
On the scene comes Nick Clegg, leader of the Lib Dems anxious to reconnect with student voters, deputy PM. Cycle lanes for cyclists not just in London, nationwide. The aim to double the number of cyclists in the UK by 2020, get clean air, combat obesity and save the planet. Lib Dems are never short of wishful thinking. Local authorities are given the money to progress this. An Act of Parliament passed to reinforce the message. On the scene also Boris, now Santander bikes hired out by the thousand to helmetless cyclists.
Now come to Newcastle. First some facts on the ground.
This is a description of the stretch of road where Newcastle Local Authority, led by the cycling lobby Sustrans, planned to introduce bus lanes and red lines.
Gosforth High Street is a section of the main arterial road that starts at the main bridge over the Tyne, bypasses the city centre, going North with Jesmond to the East of it and the Town Moor to the West.
Before it heads North, when it passes through the shopping centre for Gosforth, it is known as Gosforth High Street. It is so narrow at this point that when a local trader measured it for me, he said that the width of four bus stops was wider than the width of the road.
Congestion here is chronic, partly because it is narrow, partly because it is the main arterial road for buses, emergency vehicles and vans, lorries and cars, and partly because it supports the shopping centre for all the amenities that are there with vans and security vehicles regularly loading and unloading there. There are banks, building societies, estate agents, cafes and restaurants, a busy hardware shop, travel agents, charity shops &c.
Prominent on Gosforth High Street is Trinity Church that has had over £1m spent on it making it a hub for 78 different organisations in the city. Its own car park holds only about a dozen cars. Many organisations have evening meetings in Trinity Church, including the one I used to chair – the Tyneside Decorative & Fine Arts Society, now known as the Arts Society.
There are over 5 “green men” pedestrian crossings creating three real and unavoidable bottle-necks, one a traffic light-controlled crossing at St. Nicholas’s Avenue where the cars enter and exit the large 160 car park above Gosforth’s Shopping Precinct that includes Sainsbury, Boots and W H Smith, one a bus stop on both sides of the road for diesel buses serving twelve bus routes running North of the city, and one at the Northern end of the High Street controlling access to a major cross road adjoining the Salters Road carpark.
There is no good alternative route, the many streets adjoining lined with parked cars, their owners without garages.
A prominent local estate agent commissioned a professional survey of the number of cyclists on Gosforth High Street daily during the week. The figure was in the region of 70. (Probably only 35 allowing for return journeys). And from the Office of National Statistics 1,781 cycling to work in Newcastle 2001 and 3,223 in 2011.
Now I can come to the core of the matter.
The Local Authority had decided that cycle lanes and red lines should be introduced on Gosforth High Street. All proper procedures had taken place including consultation. But had the decision been pre-determined? Had the city’s Protocol and Core Value been adhered to? Was the decision evidence based? Was the whole process “transparent”? Were people told – and councillors – that Newcastle had delegated the planning of its roads to Sustrans, a cycle lobby? I and others had already made representations to the local authority. Its response, in our view, calling all the above into question.
So, I take my complaint to the Local Government Ombudsman. As would appear to be the case with other Ombudsmen as well it never reached the Ombudsman herself. Complaints are always handled lower down the line. I would have thought that they should be signed off by the Ombudsman if challenged, but that is not the way of it. Great pity. Another great pity decisions are sent to complainants in draft – Bindmans’ Advice likewise – but it would appear to be the case that if once you start responding to criticism there will be no end to the dialogue, so not just in draft, in stone too. The book response is to change nothing. Complainants should learn not to waste their time or anyone else’s for that matter.
Now I had spent three years at the Bar in Manchester in planning chambers headed by C N Glidewell – more of that anon – before I opted for the role of right hand man to Douglas Robinson, the newly appointed Secretary of the Liberal Party in Victoria Street in London. One thing I took away from my time there the importance of keeping everything in writing. And a computer helps.
When the Assistant Local Government Ombudsman despite my objection whitewashed the Local Authority, judicial review was the only valid option to take the matter further. The Assistant Ombudsman said the process started with a Pre-Action Protocol letter and it was best if it was drafted by a solicitor. There is great merit in this first step because apart from anything else the required response would define the argument and determine whether it was sensible to progress it at all.
At this stage I was acting with a prominent local estate agent who had commissioned a count of cyclists on the High Street and helped to set up professional market research forming part of the dossier grounding the complaint.
Local solicitors were reluctant to take instruction. And we went to Bindmans LLP, highly rated human rights lawyers in London, its founder Sir Geoffrey Bindman QC – the knighthood and QC appendage a rare recognition for a solicitor. He had been a close friend from University days but our careers and political affiliations widely diverging since. I handed over a dossier of evidence over 100 pages in length.
Judicial review is expensive. Bindmans themselves are expensive. Do we want to proceed? The estate agent pulled out. I progressed my complaint alone @ £4k + VAT.
Two lawyers then put their name to the draft of their advice. To my amazement they did not say that success would be unlikely, they said that in their professional judgment it would be “bound to fail.” I was later to discover that in legal parlance it was TWM, “totally without merit” – this a procedure to stop frivolous matters taking up valuable court time. Their professional protocol did not allow them to write the pre-action protocol letter and further as a non-practising barrister I should not write it either. They did however include a template for such a letter if I wanted to avail myself of it. Not, in my view, in all the circumstances an act of kindness.
They refunded me £1.5k when they did not deliver the pre-action protocol letter, so there must have been some expectation that this was part of the original contract.
Their Advice had substance, it ran to many pages, but whether the substance carried any weight I questioned, and still do. Trying to get some recognition of that has led me a merry dance via the Legal Ombudsman – the Small Claims Court where a file handler for Bindmans’ surrogate lawyer said “‘The claim would be inappropriate for the small claims track and so, as is common in civil litigation, you will run the risk of paying your opponent’s costs by pursuing it. – and the Solicitors Regulation Authority; while prioritising the public interest in their remit for solicitors the SRA described Bindmans’ refusal to read my book and identify defamation that fell foul of the 2013 Defamation Act as “robust”.
I do not need to detail here my 33 criticisms; I need only illustrate it and I do so in the context of their surrogate lawyer saying on their behalf: ‘the evidence does not show bias in the legal sense.’
I shall address that here.
Their Advice
“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.10 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. An adverse decision does not automatically create bias. Accordingly, we consider that the bias argument would be bound to fail.”
This is a non sequitur and made on the hoof not based on any legal authority. It should never be argued, just because you do not 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.>>
In Kafka’s Cycle – slow death of a complaint
I have counsel’s advice stating this:
- Alleging bias on the part of the Local Government Ombudsman in adjudging maladministration by a local authority could potentially be a ground for judicial review.
- A complainant can allege bias provided that the complainant has standing to make the application for judicial review.
Porter v Magill [2001] UKHL 67 “Whether the fair minded and informed observer would conclude that there was a real possibility of bias”.
Richards J. in Georgiou v Enfield LBC [2004] BGLR 497 31. I therefore take the view that in considering the question of apparent bias in accordance with the test in Porter v. Magill, it is necessary to look beyond pecuniary or personal interests and to consider in addition whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult. I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether.” <my underlining>
Being both fair minded and informed, I was myself a witness to the bias of the Local Government Ombudsman repudiating the proposition that seeking judicial review was not TWM “totally without merit.” The “positivity” I was looking for about was argue-ability not win-ability. “Bound to fail” and “totally without merit” in all circumstances one step too far.
And the evidence is in the dossier that I gave to Bindmans.
THE DOSSIER – Part 6 Errors & Omissions in Assistant Local Government Ombudsman’s decision
1. She states: “As I have seen no evidence to suggest Cabinet or the Overview and Scrutiny Committee received inaccurate information about cycling figures when making its decision to approve the scheme and there is no evidence cycling figures were the motivation for the traffic scheme I have no grounds to criticise the Council.” She ignored the “overarching aim” of the Ambitions Bid all about cycling figures and the projections in Appendix 9 where Sustrans, the national cycling charity commissioned by the Council factored into them the exponential growth of cycling in London.
The figures given to me by the Project Manager for the scheme as reason for the scheme were consistent with its “overarching aim”, and he actually says so in a letter that he sent to Mr. C. Thorpe on 4 December 2014 “we are tasked with growing cycling in the city to a significant proportion of all trips under five miles. On numbers this could easily mean that to be successful we will need to see up to 3,000 cyclists a day using this corridor to comply with 20% of all trips under five miles.”
She is happy to dismiss all of this and ignore the professional survey conducted by Duncan Young showing that only about 70 cyclists a day use the High Street. She also ignores figures in National Cycling to Work Statistics 2001 -2011 and its implications for Newcastle. This does suggest that the Cabinet received inaccurate information and were very much an important part of the motivation.
Newcastle Ambition Bid 2015
Note: “We are ambitious. Our vision is to achieve a 12% cycle mode share for trips under five miles. The first two years will set the direction for this transformational long-term cycling strategy.”
Sustrans’ designed diagrammatic plans and Modelling
The black lines drawn on these plans with Sustrans’ name attached to them demonstrate how amateur Sustrans were as city planners, taking no account whatsoever of road conditions such as on Gosforth High Street and evidence the Newcastle Council’s attempt to pre-determine their consultation process.
I want to be able to say that whilst Bindmans may have been entitled to say what they said if that was what they genuinely believed, nevertheless I believe that it was wrong. Putting it in the terms of the Sales of Goods Act that I know does not apply to legal advice, but maybe it should, the Advice was not fit for the purpose and of merchantable quality.
I want to be able to say that whilst it is good and noble to sweat blood for the disadvantaged – and it has been – as lawyers they should not ignore the rights of the advantaged of whom I am one. They should not just be the Praetorian Guard of the Labour Party. I want to be able to say that at the time they made their decision it did not save wasting one minute of court time but it certainly did save the time of the Local Government Ombudsman responding to it.
I want to be able to say that I believe that C N Glidewell, whose hallmark was excellence represented in his choice of a Bristol motor car he drove me round in and my pupil master, he would have relished the challenge that they declined. While others that did not know him or see him cross-examining planners in planning enquiries as I did over a full year could not say this, I most certainly, and in all honesty, could do so.
I could call in aid a letter his son sent me in 2008 when he was Lord Justice Sir Iain Glidewell PC – I had known him when he was a junior barrister in Manchester. This letter was in response to my sending him a copy of Death of a Nightingale detailing and dramatising the closure of over 100 special schools in the UK driven by the policy of Inclusion.
The fact that neither C N Glidewell nor Iain Glidewell are alive today is no reason for me to discard that belief even though there are those who think that I should.
I also want to say that I believe that my right to freedom of speech did not rank in Bindmans’ calculation when other things clearly did and my expectation that lawyers would respect my right to legal representation for their case whatever its merits was not an unreasonable one.
And that has been further confirmed by the closing emails between us.
I sent Bindmans a bound copy of Kafka’s Cycle – slow death of a complaint. This was their reply. When my publisher read this <my underlining> they advised me that they could not fulfil their agreement to publish my book.
Dear Mr Share,
I confirm receipt of your 9 July 2019 letter and book.
I will not give the assurances you seek in your letter, nor will I read the book and catalogue points of disagreement. For the avoidance of any doubt, if you, or your publisher, publishes disparaging, libellous or defamatory statements of any kind about Bindmans or the lawyers who work here, or those have formally worked on your case, you can be assured that we will avail ourselves of our legal remedies, bring legal action and seek injunctions or damages as appropriate along with the costs of doing so.
I trust this at least makes our position clear.
Yours sincerely,
xxxxxx
xxxxxxx | Bindmans LLP
By the way, I do not think he could have written this in America. Anyone questioning this should compare the Truth Act 2010 passed by Congress unanimously and the Defamation Act passed three years later by UK’s Parliament. According to the New Statesman Donald Trump prefers the latter!
I have had a long running dialogue with Geoffrey Bindman in a mutual attempt to find common ground. Where I felt I could, I took advantage of his suggestions. At the very end I copied my response both to him and to John Halford to the other partners in Bindmans so that they could see what was being done in their name and inviting them to intervene.
On 15 April 2020 Geoffrey Bindman writes to me: “You continue to assert that my colleagues are censoring you and that they (and I) are hypocritically denying you freedom of expression.
Let me repeat that this is nonsense. They are merely telling you that if defamed they will take whatever action the law allows them to take. They have good reason for concern since you have already published attacks on your website on their integrity and professional competence, including the claim that their entirely sensible and careful advice was dishonest because motivated by fear of upsetting the government. You may have tried to backtrack and remove the worst allegations, but you cannot undo history.”
This was my reply:
Dear Geoffrey,
You keep asserting that what lawyers can legitimately advise, must ipso facto be right, and cannot be legitimately questioned. You put reputation before my right to freedom of expression. You, of all people. And you say that your life’s work has been committed to truth and justice.
I gave your colleagues an opportunity to identify anything in my writing where it fell foul of the 2013 Defamation Act, untruthful, dishonest or not in the public interest, in that event I would delete it. As they do not do so, they like you endorse the response by xxxxxx who himself refused to read the book and identify what he could lawfully object to, judex in sua causa. xxxxx likewise. He, in his response, giving free rein to his resentment that I have kept gnawing at the bone because there is meat on it.
Toplink Publishing who had agreed to publish my book regretfully changed their mind when presented with xxxxx’s response to my book. QED.
“Kafka’s Cycle – slow death of a complaint” is a case study of bureaucratic inertia and the failure of the State. Mistakes perpetuated. Amber and red warning lights permanently set to green. Cover-ups. Lack of executive accountability. Ombudsmen that aren’t. The failure cannot be attributed to any one political party but to the system, the Media and those who collude with it. Throughout human fallibility, especially those who do not recognise their own.
All this when, in due course, people will want to understand why warnings about the danger of a pandemic by G.W.Bush, US President, in 2005<https://youtu.be/spcj6KUr4aA> by Barack Obama in 2014 < https://youtu.be/pBVAnaHxHbM> and by Bill Gates in 2015 <https://youtu.be/6Af6b_wyiwI> were ignored.
You persuaded me that I did not need to speculate on why two lawyers in Bindmans took the view that despite a 100 page dossier a case for judicial review was “bound to fail”, in legal parlance TWM, “totally without merit.” I removed that speculation. But, as I keep saying to you, the fact that they were entitled to express their professional opinion does not put it beyond question. And I question it with reason. If they were right, then I question the system that validated it and that should have been challenged.
Resentment amounting to malice at our protracted disagreement – you call it history – cannot substitute for proper grounds for objecting to anything I currently write.
I am sorry you regard as this as a vendetta. The reason I have spent so much time writing to you is the opposite of that. We should be working together. Your good name and the wealth of my experience can be a powerful mix.
Currently I have 9,951 connections in Linkedin. … The number includes QCs, barristers, researchers, MPs, global in fact.
One way or another Kafka’s Cycle must be published. I repeat, I would much prefer to see my argument with Bindmans (not vendetta) as part of the story which is what it is, not as the story which most certainly it is not.
I am copying this to lawyers in Bindmans. I would still like to hope that at least one of their number will not regard it with indifference and contempt.
On 17 April 2020 this reply from Bindmans LLP
Dear Mr Share.
I note the contents of your latest email addressed to Geoffrey but cc’d to a large number of my colleagues, most of whom have had nothing at all to do with your case.
It will be obvious to you that, at best, your email will simply waste the time of such people. If that is not obvious, it should be. Either way, your actions have gone far beyond what is rational or reasonable. You are entitled to hold your views, but not to continue to take up my own and my colleagues time by imposing them on us and demanding that we change our position on your concerns, something which we will not do.
From now onwards, email correspondence from you to the firm will be blocked and so not read (including any response to this email). I have also asked Geoffrey not to forward on any emails from you, regardless of their content.
As explained before, you and any publisher of material supplied by you will hear from us if this firm is libelled or otherwise defamed and we will take any legal action we deem necessary to preserve the firm’s professional reputation and good name.
Yours faithfully,
xxxxxxx
Partner
In these two articles, that should be read together, I assert the Relativity of Human Rights, not their Equality. In a democratic society it should not be necessary to assert the relative importance of my right to free expression. Sadly, some people see the light at the end of the tunnel, but only at their point of entry into it.
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