Posts Tagged ‘libel reform’
Mystery surrounds a multi-million pound government grant to the charity behind one of Michael Gove’s flagship Academy schools.
Last year, the Durand Education Trust was awarded £17.3 million to build what the Telegraph heralded as the “first fully free state-run boarding school” .
Durand Primary School in Stockwell, South London, had earlier, said the Daily Mail, “used proceeds from a leisure and student accommodation business it runs” to buy St Cuthman’s, the site of a former special needs centre in Midhurst, West Sussex.
The school’s plan was to give its pupils an alternative to poorly-performing local secondary schools when they completed their time at Durand. The new secondary school would be based in the countryside to keep the children far away from “stabbings and the constant threat of trouble”.
“Teenagers will be transported from London on Monday mornings to spend five days and four nights in the country, returning on Friday evenings, all free of charge”, reported the Mail .
To those tempted to ask whether public money would be better spent improving the local secondary schools rather than building an entirely new one, 50 miles away, and then shipping hundreds of children there and back every week, the school had a good answer:
“It wouldn’t cost [the government] a penny”, Durand’s Executive Head told the Spectator. While the secondary school’s core expenditure would be funded by the state in the normal way, “we’d cover the costs of boarding from the profits of our health club”.
According to the Economist, “Nothing quite like it has been tried before”.
According to the Daily Express, “Parents… are delighted their youngsters will get the chance to enjoy a Harry Potter-style education away from the area’s notorious gang culture.”
“Unlike other state boarding schools, it will not charge for accommodation”, explained the Guardian. “Instead, its running costs will come out of private income the school generates from a swimming pool, gym and block of flats.”
Media coverage has been so positive, in fact, that the PR and lobbying company employed by Durand to promote the St Cuthman’s project, secure government funding, and “make Durand Academy synonymous with educational excellence” last year won an advertising industry award for the £200,000 campaign.
It may also have helped that the school has repeatedly deployed libel lawyers Carter Ruck against critics of the school’s management, and is currently suing Lambeth Council over three emails in which its chief auditor raised concerns about its financial affairs.
Yet amid all the glowing news reports, two big problems seem to have been overlooked.
1. Notwithstanding claims that Durand purchased the St Cuthman’s site “using its own funds”, and “using income from a gym and flats on its London site”, Companies House records appear to show that the Durand Education Trust actually took on a debt of £1.9 million to buy the property – over half of its reported £3.4 million sale price:
2. The reported profits from Durand’s business activities cover only a fraction of the school’s boarding costs. It appears that the project will therefore need millions of pounds in additional funding in order to become financially viable – at a time when other schools are having to cut back.
State boarding school lodging costs reportedly range from £7,500 to £12,000 per year for each child. Even at the lower end of that scale, Durand would need more than £4.3 million per year to board the 625 secondary pupils it hopes to take in. In the last three years, the school’s business arm, London Horizons, has generated £304,964 (2009), £255,157 (2010) and £350,120 (2011) for Durand Primary School and the Durand Education Trust – an average of just over £300,000 – less than 10% of the money the school looks to require.
According to “Spears Wealth Management Survey”, Durand has recently launched a public fundraising campaign urging wealthy individuals to sponsor children at the new school, costing this at £3,800 per child, per year. But even at that level, this would still require around £2,375,000 per year for 625 children. This is a sum that many long-standing charities would struggle to raise in a good year, let alone a start-up fundraising programme focussing on a single state school in the midst of a global recession.
When I asked for a copy of the budget and costings for the boarding school project, the Department for Education refused to reveal it, claiming that “Disclosure of certain information would be likely to prejudice the commercial interests of the Department, the proposers or both by adversely affecting bargaining positions and resulting in less effective use of public money”.
So I made a Freedom of Information request to Durand Academy asking for:
“Details of how much Durand paid for the purchase of the St Cuthman’s site”, “The amount of any funds borrowed by Durand to finance the purchase” and “The terms of any such loan, and details of how any such loan is
to be repaid”.
I got the following reply:
1. Details of how much Durand paid for the purchase of the St Cuthman’s site in Sussex.
ZERO (DAT did not purchase the site)
2. Details of how Durand financed the above purchase.
NOT HELD. See above
3. The amount of any funds borrowed by Durand to finance the purchase.
4. The terms of any such loan, and details of how any such loan is to be repaid.
When I queried this, pointing out that a video on Durand Academy’s own website states that “Durand used its savings to purchase a site in the countryside”, I got no response.
But the school appears to be working on the basis – at least when it comes to Freedom of Information – that the Durand Education Trust is legally a separate entity from Durand Academy, and that FOI requests to the latter do not cover the former.
I subsequently told Durand that I’d seen information suggesting they were in debt, and that this seemed to raise questions about the viability of the St Cuthman’s project and the government’s decision to award it so much money at a time of “extreme national austerity”.
They issued a strong denial, stating that:
“Your assertions and source are factually incorrect on this matter. Durand Academy is not in debt, nor has liability for the land purchase and it would be wrong to suggest either.
“On the issue of value for money, we must object. More than any other school we are aware of, Durand has worked tirelessly and independently over the last twenty years to add significant value and opportunities for local tax payers, without impacting the public purse. Without additional central government support Durand has: improved the condition and value of the school estate substantially; absorbed a run-down failing primary school; completely refurbished that school to a high specification as a specialist early years site; expanded the number of places available to the local community; built state-of the art leisure facilities that children enjoy free use of and the wider community benefit from; reduced class sizes; subsidised healthy meals and; invested in a secondary school project that will provide choice and opportunity for local parents.
“We appreciate very much the ‘extreme national austerity’ that you refer, and that is why we believe that the Government has chosen to support a project and a project team that has never asked for hand-outs and are self-sufficient, has always made maximum efficient use of resources and have a strong record of delivery, not only in education, but in delivering projects on time and to budget.
“The £17.34 million pledged by the Government is some £8m to £15m less than has typically been spent on establishing a new secondary school to serve inner London in recent years. This money will help to deliver a secondary state boarding school from scratch, providing life changing opportunities for thousands of children. This project is innovative and ambitious, but we can assure you it is viable and we are committed to its delivery.”
Confused, I asked whether this applied to Durand as a whole – ie. not just Durand Academy but also the Durand Education Trust (for whom my usual correspondent at the school is listed as the main contact).
I was told: “As stated below this is from Durand Academy. Durand Education Trust is a separate entity. I am an administrator at Durand Academy and field correspondence for Durand Education Trust.”
So I asked my correspondent to refer my previous query about the financial situation to the Durand Education Trust. At the time of publication, a follow-up request for clarification had been acknowledged, but not replied to.
Given that the Durand Education Trust is legally constituted as an “independent charitable trust”, rather than a government body, it is not clear whether the Freedom of Information Act can be applied to it.
It may be that I’ve missed something obvious here (in which case, please do email me or leave a comment below). Or it may be that Durand has a substantial, and previously-undisclosed, source of additional income that can plug the financial gap.
But at the moment it is difficult to see how the Department for Education will be able to avoid committing many more millions each year to this experimental project – leaving millions less available for other, less favoured schools within the education system.
Update: I have now had some comments from the Durand Education Trust. Here’s what they say:
“1. Some of your estimates are so over the top as to be risible. For instance, though there will be costs associated with providing boarding (principally the extra costs associated with keeping duty staff on site overnight for safeguarding) the idea that these would amount to almost £30,000 per night, which is what is consistent with the lower figure in the range you cite, is frankly absurd.
2. DET did not take out a bank or building society loan to fund the purchase of the site. Any information you have to the contrary is false.
3. The figures you quote for London Horizons revenues were figures supplied to you in respect of sums historically paid over to Durand Primary School and Durand Academy. They do not reflect the level of income accruing to DET now or in the future.”
The Durand Education Trust also complain that “Whilst we are prepared to be as transparent as commercial sensitivities allow, we note that almost everything you have written about Durand in the past… has been unfair or inaccurate, and sometimes both. It is hard to resist the conclusion that your reporting is actuated by malice and/or a political agenda…”
So it looks like the mystery will continue for a while yet. I’d welcome any comments from readers that could help to clear things up.
On the financial question, the figure of £7,500 to £12,000 per year per child for state school boarding costs comes from a broadly positive Telegraph article, in which Durand got a prominent mention (“More cash needed for state boarding schools, warns head“, November 28th 2011). Over a 39-week school year where 625 children were boarded for 4 nights per week, the lower end of this scale would indeed amount to approximately £30,000 per day, which certainly is a lot of money.
It’s worth noting, however, that the cost-per-child cited by Durand in their new fundraising campaign – £3,800, would, under the same analysis, equate to around £15,000 per day for 625 children – or £24 per child. While this is significantly less, it is still a substantial sum, and with a total yearly cost (£2,375,000) that would still be much higher than the reported annual income generated, to date, by London Horizons (£350,120 in 2011).
It is not yet clear how the costs of transporting 625 children on the 50 mile trip to and from West Sussex each week would fit into the above analysis, or where the money for this would come from.
I have asked the Durand Education Trust for more details of the things I’ve written that they feel have been unfair or inaccurate, and invited them to produce a “right to reply” piece for publication on this blog, putting their side of the story. I will update this post if and when I receive a reply.
In literal terms, The Durand Education Trust appear to be correct in stating that “DET did not take out a bank or building society loan to fund the purchase of the site”. Records from Companies House show that the company which lent them £1.9 million was not a bank or a building society, but a firm called Alderley Land. More on that in due course…
2. Professor Bridle, who is the managing director of the Second Claimant company, brings this defamation claim against Mr Williams, a Health and Safety inspector employed by the Second Defendant, the Health and Safety Executive, (‘the HSE’) at the HSE’s offices in Cardiff. The claim is made in slander in respect of words allegedly spoken by Mr Williams, when acting in his capacity as an HSE inspector, on or about 24 July 2008, to representatives of the University of Wales Lampeter, Mr Cennydd Powell, the University’s Head of Estates, and his assistant Mr John Fowden.
3. The words complained of were that Professor Bridle “is not a real professor as he claims” and that Mr Powell and Mr Fowden (and by implication also the university and all other third parties generally) “should not believe a word that he says”. It is further said that in telephone conversations between Mr Williams and Mr Powell between 24 July and 31 July 2008, Mr Williams repeated to Mr Powell the alleged defamatory statements…
Summary of Defendants’ Submissions
…48. The Defendants submit that publications by the journalists referred to and by the author Richard Wilson in his book ‘Don’t Get Fooled Again’ contain far more serious allegations than those complained of in these proceedings. They are in permanent form, have received and continue to receive far wider publication and would inevitably have caused much greater damage to reputation than the alleged slander by an HSE inspector to the University’s estate manager and his assistant.
49. Richard Wilson’s book contains a Chapter entitled ‘Fake Experts and Non-Denial Denials’ which is almost entirely devoted to attacking Professor Bridle. It disparages his academic qualifications, and brands him as a ‘charlatan’ and a ‘liar’. An article in ‘The Guardian’ dated 30 June 2008 by Peter Wilby refers to Professor Bridle and Asbestos Watchdog in disparaging terms and suggests that his scientific credentials should be subject to careful scrutiny. A critical article suggesting that Professor Bridle was not a neutral expert and was linked to the Asbestos Cement Product Producers Association was published in CMAJ [ a scientific journal] by Kathleen Ruff on 22 December 2008. Critical comments have been published on a blog run by Richard Wilson in September 2008. Julie Burchill wrote an article critical of Professor Bridle and Christopher Booker in The Guardian on 2 November 2002.
50. It is therefore submitted that the incident giving rise to this claim is a peg on which Professor Bridle hopes to hang the next round of his campaign. It is submitted that he has been waiting for the opportunity to “get HSE in the dock” and this action is a contrived way of seeking that. It is submitted that were this action allowed to proceed it would also cause harassment and prejudice beyond that usually encountered in litigation…
…82. It is, I consider, apparent from the correspondence exhibited to the witness statements that the dominant motive in bringing the proceedings is to cause embarrassment and prejudice to the HSE because of the Claimant’s anger at the HSE’s refusal to accept his views on the subject in question. It is apparent from the evidence that Professor Bridle believes that a claim against the HSE will be likely to bring the debate about the difference in scientific views to a public forum more readily than a claim against an individual journalist would do. Thus I have concluded that, whilst I would not go so far as to characterise the claim as ‘vindictive’ in the same league as the claim in Wallis v Valentine, it does, in my view, fall into the category of a ‘vendetta’ as outlined in that case and in Bezant v Rausing.
83. I note particularly the fact that no defamation proceedings have been brought by Professor Bridle against any of the authors of some of the attacks made against him in the press, in the book by Richard Wilson and on the internet. The content of those publications are mostly in terms far more pejorative than the words alleged to have been spoken by Mr Williams, and will have had a much larger audience. The fact that such publications are widely available will inevitably put into issue the extent to which Professor Bridle’s reputation has been damaged by the alleged publication in this claim. I do not consider that Professor Bridle’s explanation as to why no such proceedings have been brought is credible when compared to the issue of these proceedings for words spoken in either a private meeting or a telephone conversation to either one or two persons (depending upon the evidence).
84. In the light of the lack of any convincing evidence as to why the HSE have been singled out for a claim, and the publishers of the publications referred to have not had proceedings brought against them, and on the basis of the evidence relied on by the Defendants, I have concluded that there is an improper collateral purpose to the claim against Mr Williams and the HSE, rather than simply vindication of reputation…
Accordingly the Defendant’s application for summary judgment and for strike out succeeds in its entirety.
While accident and emergency services face cuts,
frivolous libel cases receive a generous subsidy
The endemic abuse of the UK’s dysfunctional libel system to suppress inconvenient scientific evidence is now widely understood to be a threat to public health.
The enormous fees that libel lawyers are able to charge mean that a defendant can face crippling, unrecoverable costs even if they win their case. The situation is now so bad that the media is routinely exercising self-consorship over contentious public health issues rather than face the risk of legal action.
But there is another issue here, which has also has serious implications for public welfare, and which merits more scrutiny. While the claimant and defendant in a libel case have to foot the bill for their respective lawyer’s legal fees (with the majority of the costs typically falling on whoever loses the case), there are many other costs involved in a case – from the judge’s salary to the cost of heating and lighting the courtroom – that they never have to worry about.
These “invisible” costs are generously met by the UK state, using money from taxpayers that many of us might prefer to be put towards a more worthy cause – saving our local accident and emergency unit from closure, reducing class sizes in an inner city school, providing better equipment for our armed forces, or simply returning the money to taxpayers so they can decide for themselves how to spend it.
A typical salary for a High Court judge is in the region of £172,000. If the judge works for five days a week, 46 weeks of the year, this would equate to a rate of more than £740 per day. The judge is supported, in turn, by a whole team of clerks and other administrative staff. The court room itself must be kept warm, clean, and in good repair. Meticulous records must be kept of the court proceedings, with those records being filed and maintained for many years afterwards.
Without all of these “invisible” costs being met, there would simply be no lucrative court case for libel firms like Carter Ruck and Schillings to cash in on. So what’s actually happening here is that the UK taxpayer is indirectly subsidising the libel industry.
So what kind of cases are we subsidising? Well there’s the tennis player who sued the Daily Telegraph (unsuccessfully) for calling him the “world’s worst tennis pro”. There’s the Icelandic professor who got sued in the UK courts over a comment posted on the website of the University of Iceland. There’s the Ukrainian businessman who sued a Ukrainian news website in the UK courts over comments made on that website, in Ukrainian. There’s the now-notorious failed libel action by the British Chiropractic Association against science writer Simon Singh over his criticism of their scientific claims. There’s the two-year (and also famously unsuccessful) libel case by the blogger Joanna Kaschke against another blogger, Dave Osler, which was thrown out after two years on the basis that there was actually no case to answer. There’s the defamation case brought by John Bridle against the Health and Safety Executive, over comments allegedly made over the phone by an HSE inspector – the case was also thrown out (after much deliberation), with the court ruling that Bridle had been pursuing a “vendetta” against the HSE.
On top of the considerable costs imposed on the defendant, all of these cases required a hefty subsidy from the taxpayer in the form of court staff time and other administrative expenses – while (in most cases) the claimant’s law firm raked in the profits. It’s difficult to put a precise figure on how much money we are wasting each year on frivolous or trivial defamation cases like these – but it’s easy to think of better ways that this cash could be used.
The report they tried to ban…
The Anglo-Dutch oil company Trafigura goes on trial in the Netherlands on June 1st, over its role in the allegedly illegal exporting of toxic waste to the Ivory Coast. According to the Ivory Coast authorities, the dumping of this waste led to 15 deaths, with other reports putting the death toll at 17.
Trafigura is notorious for its willingness to use UK libel law – which is famously one-sided and prohibitively expensive for most defendants – to suppress critical coverage. As a result, while the Dutch, Norwegian and American media have reported the case freely, few UK newspapers will even cover it, let alone mention the alleged death toll (which Trafigura continues to dispute).
When Trafigura and their London-based law firm, MacFarlanes, were formally accused in the Dutch courts of bribing witnesses (a charge they deny), there was silence about it in the UK media. According to MacFarlanes themselves, such behaviour “would have been illegal and it would certainly have constituted serious professional misconduct”. Under normal circumstances, the laying of such charges against a UK law firm would have been a major news story. The fact that it has gone unreported in Britain shows how much damage our libel laws have done to freedom of speech and public interest journalism.
When the trial itself begins on June 1st, it will be interesting to see if any UK media dare to cover it. This will be a key test of how much power Trafigura now wields over the British press – and how much courage our journalists and editors have in resisting this company’s sustained attack on press freedom.
A few weeks ago Wikileaks published the 40-page court document in which the BBC laid out its defence against Trafigura’s libel claim, following this Newsnight report from May last year.
Trafigura had always insisted that the available scientific evidence vindicated them of blame for any deaths or serious injuries following the August 2006 Probo Koala toxic waste incident, and in December the BBC controversially withdrew their claims and agreed to pay damages. Yet Trafigura have never published the evidence which they say vindicates them, despite repeated requests.
Following the publication of the BBC document by Wikileaks, the blogger Calum Carr again contacted Trafigura to request their side of the story, but again to no avail.
Calum and I have now obtained this document ourselves. Given today’s very promising news about the libel reform campaign, we felt that this was a good moment to put the information out into the public domain, so that people can form their own view on this contentious issue.
Obtaining an electronic copy of this document has been an interesting process in itself. To do this, I had to:
1. Go to the High Court in person
2. Make a formal request for a copy of the document (giving full personal details including my home address)
3. Wait several days
4. Phone the High Court to see if the copy was ready
5. Visit the High Court again in person
6. Pay a not-insignificant photocopying fee
7. Pick up the paper copy of the document
8. Take the copy to a specialist document scanning company to get it turned into a PDF
9. Pay another fee
10. Wait another few days, before receiving the PDF via email.
This is apparently standard procedure for getting hold of key UK court documents. One would almost have thought that the legal authorities did not actually want the British public to have ready access to documents which are, at least in theory, available to all of us by right…
We might compare the above process to the mechanism involved in, say, accessing the text of a Parliamentary Question or a Select Committee report, eg:
1. Visit the Parliament website
2. Type in a relevant search term
2. Download the information (for free).
For all the concerns we might have about the current workings of the Parliament, its processes currently seem a whole lot more open transparent than those of the judiciary. Apart from anything else, the requirement that one has to visit the High Court in person to access a public document seems inherently discriminatory to anyone living a significant distance from London.
If and when we get some real progress on libel reform, it seems to me that opening up the judiciary to at least the same levels of scrutiny we have for Parliament could be an important next step.
England’s libel laws are unjust, against the public interest and internationally criticised – there is urgent need for reform.
Freedom to criticise and question, in strong terms and without malice, is the cornerstone of argument and debate, whether in scholarly journals, on websites, in newspapers or elsewhere. Our current libel laws inhibit debate and stifle free expression. They discourage writers from tackling important subjects and thereby deny us the right to read about them.
The law is so biased towards claimants and so hostile to writers that London has become known as the libel capital of the world. The rich and powerful bring cases to London on the flimsiest grounds (libel tourism), because they know that 90% of cases are won by claimants. Libel laws intended to protect individual reputation are being exploited to suppress fair comment and criticism.
The cost of a libel trial is often in excess of £1 million and 140 times more expensive than libel cases in mainland Europe; publishers (and individual journalists, authors, academics, performers and blog-writers) cannot risk such extortionate costs, which means that they are forced to back down, withdraw and apologise for material they believe is true, fair and important to the public.
The English PEN/Index on Censorship report has shown that there is an urgent need to amend the law to provide a stronger, wider and more accessible public interest defence. Sense About Science has shown that the threat of libel action leads to self-censorship in scientific and medical writing.
We the undersigned, in England and beyond, urge politicians to support a bill for major reforms of the English libel laws now, in the interests of fairness, the public interest and free speech.