Update on Adderbury Parish Council Judicial Reviews

It has taken a very long time for the Court system to spit out the formal rejection of our Berry Hill Road lawyer’s first Judicial Review.  Now we have copies of the two rejections, I am attaching them at the foot of this blog.  The rest is a repetition of my earlier blog.

Many of you will know that our Berry Hill Road lawyer filed two applications for Judicial Review of Adderbury Parish Council’s decisions concerning the Milton Road land and its related restrictive covenant.  I have just received notification from the Parish Council Proper Officer, Theresa Goss, that both applications have been dismissed.  The judge who considered the applications has refused them and, in a footnote to his decision, has stated his opinion that the application is “totally without merit; as well as now being wholly academic, the claim is in my judgement without any foundation at all“.

Below is a link to the judge’s decision on both Judicial Reviews.   It was always my personal view that this lawyer hoped to bully and intimidate the parish council into changing the restrictive covenant on the Milton Road land to suit the parish council minority group’s desire to abort the intentions of Cherwell District Council and the developers.  I am relieved that his tactics have not worked and I salute the courage of my fellow parish councillors in resisting this legal mumbo jumbo.

The one remaining concern is that the judge made no order for costs which means the parish council (in reality Adderbury Council Tax payers) may be unable to recover its costs from Mr Davies.  There is something wrong with our legal system if a JR application can be dismissed so comprehensively but the body complained about has to bear the costs (more than £5,000) without recourse.  Perhaps Mr Davies will be sufficiently contrite to offer the parish council its costs but I don’t suppose any of us are holding our breath.

Before Mr Davies starts scratching his quill, I make the point that I write as an individual parish councillor and am not attempting to speak for the parish council as a whole.  However, the JR decisions are public documents so I trust Mr Davies will put his quill back in its rack – unless, of course, he needs it to sign a cheque to Adderbury Parish Council for the costs of fighting his “wholly without merit” JRs.

APC JR Decisions

About Keith R Mitchell CBE

Qualified as a Chartered Accountant in 1967. Pursued a successful career in financial training and publishing until selling his interests in 1990. Elected a County Councillor for the Bloxham Division in 1989. Leader of Oxfordshire County Council 5 November 2001 to 15 May 2012. Chairman of the South East England Regional Planning Committee July 2002 to July 2005. Chairman of the South East England Regional Assembly July 2005 to July 2008. In HM the Queen’s 2007 Birthday Honours, appointed a Commander of the Most Excellent Order of the British Empire in recognition of services to local government.
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19 Responses to Update on Adderbury Parish Council Judicial Reviews

  1. Daniel Noone says:

    It seems that your view on this subject is at odds with another blogger on village politics:

    http://www.saveadderbury.co.uk/costs-part-3/4594066572

    I think he raises a good point, why did APC need to spend so much money when there was an opportunity to mediate for little or no cost. Have you seen the invoice from the APC solicitor and was it good value for money?

    • Mr Wood’s web site (SaveAdderbury) is in line for the Booker prize for fiction. The Court found the two applications for Judicial Review wholly without merit. To mediate on them would have involved conceding some of the demands of this aggressive lawyer which were wholly unreasonable. I believe we had no choice but to resort to due process of law. Lawyers are always hideously expensive but the legal system is designed by lawyers for lawyers and I do not think we had any alternative. We have applied for costs against the applicant. The response is my own and not necessarily that of the parish council.

      • Daniel Noone says:

        I’m still at a loss to understand why APC found his demands to be unreasonable – I followed the information being made public by both sides on Adderbury.org and the sum of the request that could have possibly been mediated on was access to information that APC had readily available. What’s so unreasonable about that?

      • The lawyer who lodged the judicial review applications makes his living by aggressive use of legal process. He was demanding that the parish council seek to amend the legal agreement with developers concerning Milton Road land. As the court found, his case was without merit and, in view of his aggressive and intimidator style with the parish clerk and the whole parish council, I believe councillors found themselves with no alternative than to oppose his demands. I make this point as an individual and do not pretend to speak for the parish council. I do not intend to continue this debate further. I suspect you are being provoked and briefed by opposition members of the parish council or the lawyer in question or both.

  2. Daniel Noone says:

    No not at all provoked or encouraged by anyone, just interested in your viewpoint on this and still genuinely at a loss to understand why over £6k on legal advice and representation was spent when mediation over disclosure of information was an alternative as far as I can understand.
    The only reason you seem to offer was that it was prompted by posturing by APC to put a complainant in his place. Will this posturing in chasing costs come with another legal bill for APC to fund?
    I respect your right not to continue this conversation but if you want to make public your opinions in the form of a blog with a comments section you should also make public your defence or support of those opinions.

    • Diane Hunter says:

      Daniel,

      I read your comments with interest. But I thought it might be worth expanding upon some of the points you raised.

      It is interesting that you point out that Keith expresses his options in public via a blog, that allows people to comment. The Campaign to Save Adderbury did used to allow people to make comments on the posts on that site – up till just over a year ago. However, after making several posts, where some of the “facts” used, were proven to be completely wrong, and rather biased, the ability to make comments was taken away, as were most of the posts that contained the fallacious claims. In fact, the “owner” of the site was so upset with being challenged about some of the more dubious claims I believe he reported the matter to the police – as harassment.

      I could quite easily set up a web site that claimed that HS2 was going to be diverted to run through Adderbury, and not allow people to either comment or challenge that claim. It does make the rumour true, does it?

      Now the other thing that seems to be glossed over in the other sites blog post was the subject of the SECOND judicial appeal. This was submitted only after the council made the decision to defend itself against the first judicial review. The argument behind the second review was that the council “had been biased when it took its decision to defend itself”.

      Let us cut to the chase, the second review was submitted by a qualified solicitor, who felt that an organisation (our parish council) which decided to fight what they felt was a vexatious claim (which they have been proven correct on) was BIASED and should not be allowed. It is apparent that this qualified solicitor did not feel that the “defendant” should be allowed to obtain qualified LEGAL DEFENSE and to present evidence to support itself. I assume Sir William Garrow PC KC FRS will be turning in his grave to have a member of his profession attempt to prevent any party from having access to a suitable defence. It is worth pointing out again, BOTH judicial reviews were rejected as being without merit, by an independent High Court judge.

      So I do have a question for you, do you think that the council was right to defend itself against these reviews, or should they have just rolled over and given in to the demands made in the first review?

      As an aside, do I assume that you might have been named after that fine actor Jeff Daniels. I am a particular fan of his work, especially in the film “Blood Work”

      • Daniel Noone says:

        Hello Diane,

        Thanks for the additional insight, as I mentioned earlier based on the publicly available information and comment on this issue it is difficult to get the full facts. I certainly take on board your explanation for the second JR but still at a loss to understand why the refusal of sharing of information was such an issue for APC, which I understand – perhaps mistakenly- was the root cause of JR one and why mediation was not considered.
        I’m not suggesting that there is anything to hide or that the action was valid or not, I’m simply asking why the money was spent if there was a no cost alternative to a request to obtain information that allegedly should have been in the public domain.

      • Diane Hunter says:

        Daniel,

        I am not a parish councillor and so I do not know all the details. However from what I can piece together the first judicial review was not about withholding information, but was about attempting to change the wording of a restrictive covenant.

        To summarise the issue, (as I understand it), there is a parcel of land (some 7 acres) to the north of Milton Road, which is now owned by our parish council. This land was owned by a local family, and through various land transfers, ownership went through a land developer, Cherwell District Council and finally to Adderbury Parish Council. The land was transferred with a restrictive covenant, that stated that the land should be used for a specific purpose. When the land was finally transferred to the parish council, the wording of the covenant was quite specific in that it should be used for “sports fields and community facilities”. The judicial review was all about the exact wording of the restrictive covenants at the time the transfer to our parish council took place. If you read the judicial review summary you can see that the Judge makes the point that the terms used when the land was transferred to the parish council are in lines with (though not in precisely the same terms as ) a previous agreement to which the parish council was not a party.

        From what I can gather, the judicial review claim was that the wording had slightly changed and it should be (in the claimants mind) “sports fields OR community facilities”. This change could allow the parcel of land to be used solely community facilities, in that some of our parish councillors (who do live close to the land in question) proposed that the land should be used for a new woodland area or another suggestion was a natural burial cemetery. The option to mediate was more (from what I hear) change the wording and the claimant would retract the judicial review – simply a case of do what I want or else…..

        In might well have been illegal for the parish council to attempt to change the wording, and as far as I can see they really did not have any other option that to defend themselves against the first judicial review. Just bear in mind, if the claimant hand not issued the second review it would only have cost £3,000. By putting in the second one, he actually increased the amount the council has had to pay. It is funny that the other website has never pointed that out. But it does not fit their narrative does it!

      • Daniel Noone says:

        I’ve managed to find in the comments section on Adderbury.org the basis for my confusion regarding why APC could spend £6k on a solicitor.
        This was written by the person who instigated the JR and was part of a conversation that was explaining the no cost option of mediation:
        “At this stage I request full disclosure as to how the TR1 document came to be drafted as it has been in respect of box 11, including copies of all letters, e-mails, meeting minutes and any other documents that may have a material relevance to the same.”

        Why couldn’t that be settled without any fuss?

      • Daniel Noone says:

        A paternal grandfather from Sligo is the answer to your last question – sorry never heard of that actor.

    • Diane Hunter says:

      Daniel,

      I can see why you might have become confused. The claimant was trying to explain to everyone how reasonable he was trying to be and how obstructive Adderbury Parish Council were – not suppling him with all documents, emails, minutes etc. relating to the land transfer . If he was that interested, I am surprised that he never bothered to apply to become a parish councillor – there have been two resignations since the full council was elected in May last year. Also I have never seen any comments from him as to why he decided to bring the second judicial review claim – please remember the costs doubled because of the second claim? If he had not brought the second claim, the council would only have needed to spend £3,000 to defend itself not £6,000 – but this fact is CONSTANTLY being glossed over. I would love for him to explain why he felt he needed to bring the second claim and what he hoped it would achieve.

      Again, it is worth mentioning the first claim was an attempt to reword the restrictive covenant, which would have made it easier for those minded to not have the football pitch move to the north Milton Road to get their own way.

      There are some less widely known things that have gone on behind the scenes which helped form my views. For example, the council was “filing a complaint to the Solicitors Regulatory Authority (SRA) in respect of the behaviour of a Parishioner towards the Parish Council and in particular, the Clerk”. I wonder who this parishioner is? Is it the same parishioner who threatened to sue the elderly parents of someone who wrote and posted counter positions on another website?

      Village politics can be a murky and sometimes nasty affair. However in the last few years Adderbury has suffered from particularly vicious version, where we have had councillors who have in effect refused to accept the result of a council vote, and have been fighting a rear guard action in an attempt to get their own way. I wish they would stop – either fighting over a vote that went against them or being councillors – I do not care which.

      • Daniel Noone says:

        Despite what you point out the implication for the reader with only access to public information is that there was a reluctance on behalf of APC to reveal that the TR1 document had been altered hence the request for further information. When pushed by the pre-JR process CDC confirmed that they had not altered the wording and that it was done as part of the agreement between the APC Chair and the developer.

        The mediation no cost route would have revealed the same information – as we know the wording change was acceptable to all parties so why the cost, fuss and the impression of a cover up?

        For someone that isn’t a councillor you appear to have a lot of information not in the public domain as far as I can see. I suspect that the blame for the tribal antics of APC isn’t as one sided as you imply judging by views being expressed by this blogger.

      • Diane Hunter says:

        Daniel,

        It appears that we must agree to disagree. But I am sure we can agree in that the second judicial review claim was a silly mistake, that resulting in the costs the council having to outlay doubling – can we not?

        However you raise the point of mediation. It has been revealed that “Mr Davies wanted the APC to ‘reverse its direction…and issue statements (subject to my – i.e. Mr Davies’s – approval) which accurately state the obligations of APC in relation to the land North of Milton road.” I am given to believe this was from an email from Mr Davies to the APC dated 26th April 2017. (Taken from the APC statement on their website). Please also bear in mind that Mr Davies submitted the first claim just days before the parish poll. After the poll, the majority of people who voted, did vote yes for the land to be used for football pitches and a sports pavilion. Surely after the result the claim should have been withdrawn unless one feels that the poll was not a binding mandate! It does take two willing parties to enter into mediation, and I expect both sides were so fully entrenched that it would have been a waste of time.

        For the record, all the information I have used here is in the public domain, with one exception. If you actually read all the posts and follow the links to documents on http://www.saveadderbury.com (including all the documents that somehow Mr. Woods manages to obtain), http://www.adderbury.org, http://www.adderburynews.co.uk and finally http://www.adderburypc.co.uk – which is where I copied the quote from Mr Davies’s email you will find most of this has been (and still might be available). There has been some pruning of some posts and their comments.

        The one exception was the threat to sue the elderly parents – that is quite well known through the village (certainly in the east and middle parts of Adderbury – I am not so sure of the western reaches) but not openly discussed on any blog post for fear that they too might feel the threat of being sued.

        The other ways I find out information is by attending the council meetings when possible and actually listening to what is being said both inside and outside the council meeting. I must say at times some of our councillors can be rather loud when talking with members of their “tribe” – some of whom are not councillors but are involved with action groups or campaigns.

        I definitely am not a councillor, just someone who listens, researches and forms an opinion. If later on, further evidence turns up that I did not know before, I am always willing to change that opinion. However I am fully aware that the tribal antics are not one sided, but as this is not a criminal trial and so the evidence does not have to prove a case without reasonable doubt.

      • Daniel Noone says:

        Yes we agree to disagree – you see the second JR as being a waste of money and I see the whole process as a waste of money. I’ve only asked one question of both you and Keith. Why did we have to spend money to get to this situation when mediation was an available route- if that had failed in the APC ‘s view then they would have had their mandate to spend £6k.

  3. Diane Hunter says:

    Daniel,

    We do actually agree then, that it was all a needless waste of money – it is that I think that both request for reviews should never have been raised. The second review was a petty and spiteful attempt to browbeat the council and scandalous waste of money by someone who should have known better and added an extra £3,000 to the total. What do you think could have been the reasoning behind issuing the second review?

    Your position is that you believe that the council should have entered mediation rather than defending itself against what was proven to be a bogus claim. I expect the only thing Mr Davies would have accepted would have been the council rolling over to his demand and changing the wording on the TR1 document to something he wanted. What I would really like to see are copies of all communication from Mr Davies to the parish council to see just how these offers of mediation were phrased and what he actually requested. I see no problem with Mr Davies (if he believes he was still correct) releasing these emails into the public domain, though reading the minutes of the last council meeting, someone is threatening legal action under the data protection law – perhaps for including a line from one of their emails in a statement – so perhaps Mr Davies is unwilling for them to become public knowledge! However, I do not have access to these emails but the council did and they decided to defend themselves – we should perhaps dwell on the facts that are in the public domain, namely an independent High Court judge reviewed the claims and found them without merit. The judge had access to a lot more information than you or I and therefore his response should carry the most weight.

    That aside, I feel that given the wording used by the judge, if Mr. Davies has a shred of honour he should offer to reimburse the council the money his actions caused to have to be spent. He was obviously in the wrong when he submitted both requests for reviews.

    In a semi related thread, the vile and vicious threat to take legal action against the elderly parents of someone who would not remove a post from their website, indicates that in some circles the concept of mediation has been confused with capitulation. It appears that some people feel that anybody or anything is acceptable leverage for someone to get their own way. The person that made this threat must be a pathetic excuse of a human being, with no sense of shame. I am sure that you must agree that this was unsavoury behaviour.

    • Daniel Noone says:

      Oh dear this has descended into a personal attack on an individual which is not something that I will join in with.
      The original and only question is why was there no attempt to mediate – the only response I get from you and Keith is vitriol about an individual. Neither of you have attempted to answer the question just offer contempt.

      I must say when provoked your writing style is remarkably similar to Keith’s. We live in enlightened times so there is no judgement from me as to what Keith/Diane do behind the privacy of your own door.

      • Diane Hunter says:

        Oh dear in deed. You attempt to claim the moral high ground by twisting my comments to be a personal attack on an individual and then rapidly turn into an attack of Mr. Mitchell. Ouch, has someone touched a nerve. I can assure you I am not Mr. Mitchell, nor any councillor, as I have stated before. I do not know if I should feel sorry for Mr. Mitchell being accused of having the same style of writing myself. Is there any way I can convince you that I am not Mr. Mitchell, or any other of the non-Horn Hill councillors?

        You position has never changed, it is always why did the council not attempt mediation. You have had many opportunities to put forward your view regarding the second review claim, but you ignore them, and continue to conflate the cost of defending both reviews as being the councils fault for failing to mediate. You never have seemed to consider if issuing the request for the first review was perhaps over the top – especially given the judges comments. You always want to know why mediation was not used first. I wonder how you would feel if your “legally” parked BMW was hit by another car. The driver then got out and proceeded to tell you that it was in fact your fault because you should not have parked there and that you should pay for the repairs to their vehicle at a garage of their choosing, and if you do not agree you will be sued. Surely you would not just give in – if you know or feel that you are in the right?

        I cannot answer your only question though, I do not know why, but I suspect that the contents of the emails from Mr. Davies to the council might have had a major contributing factor. I did not mean for any of my comments about Mr. Davies to be vitriolic or contemptuous, I am merely expressing my opinion of his actions that have in effect taken money out of my pocket. It was his actions that are the start of all of this and therefore:

        Who exactly did Mr. Davies propose to be used as a mediator – I hope it was not himself?

        Mr. Davies should explain to Adderbury why he felt that he had no option other than to bring the first request for a review. What he felt that it would achieve and has he learnt anything from having the first review so totally thrown out being without merit.

        Mr. Davies should also explain why he decided to bring the second review as well. Again what did he hope to achieve.

        Since the requests for reviews were rejected, Mr. Davies has been noticeably quiet, but we all know he knows how to place posts on the village website, and failing that he could always use Mr. Woods web site. I did witness both Mr. Davies and Mr. Woods having a long conversation outside Church House while the council were deciding to defend the first review -they then started a discussion with Mr. Atkinson and two other people before the doors opened again – hence I do know that they know each other. Small world is it not!

      • Daniel Noone says:

        My last post on this topic – the source of this angst was the refusal of APC to consider the request for information to understand why the wording on the TR1 had changed and by whom. There was a view that this was not done in the appropriate manner even though all parties to the document were happy with the wording.
        APC claimed – in public- they knew nothing of the changes only to be blindsided by CDC who did comply to the request for information and confirmed that the change was agreed between the developer and APC Chair. There was still time to mediate at this point at no cost.
        The decision to use a solicitor was likely due to a lack of transparency in the actions up to that date by members of APC and possibly a fear of being found to have acted illegally.

        The fuss, costs, silly online accusations etc is the unfortunate result of this refusal share information. This lack of respect for the village they represent deserves to be challenged, APC’s response was to get a lawyer.

  4. I do not know Diane and have had no exchanges with her as far as I know. However, her explanations are bang on. This lawyer sent endless e-mails to our clerk and to parish council members. They were incredibly long, full of legal jargon, threatening and intimidatory. It was clear he wanted the parish council to apply for a variation to the restrictive covenant that would have favoured the anti-Milton Road brigade including parish councillors living in Horn Hill Road. It was transparent that his view of mediation was to secure this change and the parish council, by a majority, was not prepared to agree to this so saw no point in mediation. We had access to the lawyer’s CV and it was clear that he makes his living in property law and this explained the aggressive and intimidatory style he adopted with the parish council clerk and members. I have 140 e-mails relating to Milton Road and a huge number of large ones were from this lawyer.

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