FM v Herefordshire Council Standards Committee

I was, therefore, able to consider whether to give permission on any point of fact or law. I gave permission at the hearing on these reasons:

The First-tier Tribunal considered whether Mr Myers had used his position in order to confer or secure an advantage or disadvantage. It is clear from paragraph 15 of the tribunal’s reasons that it did not consider whether he had merely attempted to do so. It is clear from paragraph 19 that the tribunal found only that he had conferred a disadvantage on Councillor Cole. It is clear from paragraph 12 that that disadvantage was not financial.

The case relates to three letters written by Mr Myers. He says he did so as a parish councillor. The Committee says he did so in his capacity as Vice-Chairman and showed that he did so both by the use of his title and by the terms in which he wrote the letter. The key issues that concern me relate to the effect that these letters are said to have had. I pose my questions on the assumption that Mr Myers did in his letters purport to act for the Council.

What is the degree of contribution that the letters need to have had on Laing for the purposes of paragraph 6(a)? There is a spectrum of possibilities from being the sole cause of Laing leaving the site to being merely supportive of a decision taken entirely on other grounds. Where does paragraph 6(a) sit on the spectrum? In other areas of law, words such as effective cause, operative cause and predominant cause are used. Is one of those appropriate or is a different formulation needed?

What disadvantage did the Coles suffer if it was not financial? I cannot see what benefit they gained from the arrangement other than financial. Was there any evidence basis for finding any other benefit? Was there a disadvantage in complying with the certificate of use? Did the evidence before the tribunal justify it in drawing the inferences that it did about the effect of Mr Myers’ letters?

I gave case management directions for the Committee to respond by 31January 2011 and for Mr Myers to reply by 28 February 2011. After obtaining an extension of time, the Committee wrote to say that it would be disproportionate use of public funds to take any further part in the proceedings given the impending abolition the Committee system for regulating the conduct of local authority councillors.

I am conscious that this case was considered by a First-tier Tribunal whose panel included two members with particular knowledge and experience of local authorities. That has affected the way that I have approached the case.

The tribunal found that Mr Myers’ letter had created the impression that he was acting on behalf of the parish council. I accept that analysis. I do not say that Mr Myers deliberately set out to create that impression, but he was at least naïve (as a relative newly elected councillor) to make use of his title as Vice Chairman.

On paragraph 6(a), the tribunal found that the evidence did not show Mr Cole suffered any financial disadvantage, but directed itself that a disadvantage could take other forms. It was correct on both those points. As to the effect of the letter on Mr Cole, that was a matter of causation and probability. Mr Cole lost the agreement and the income from it, but what contribution did Mr Myers make to that loss? A large public company would know the remit of the parish council and would have access to its own legal advice. It might be concerned as a responsible company that the villagers were inconvenienced by its activities, but it would not be influenced to any significant extent by the involvement of the parish council or of its Vice Chairman. Indeed, a representative of the company visited to see for himself how the use of the site was impacting on the village. As to the form that an advantage might take, the tribunal’s direction on law was clear beyond scope for argument. Neither the language nor the rationale of the provision would justify limiting paragraph 6(a) to financial advantages and disadvantages.

What the tribunal did not do was to identify any disadvantage that Mr Cole had suffered apart from a financial one. Given the nature of the use to which his land was put, I cannot see what other sort of disadvantage Mr Cole might have suffered from the termination of the agreement. I have not been shown any evidence of one. Mr Cole only said that the impact was financial. In that context, the tribunal’s statement that any form of disadvantage would suffice is inadequate to show how paragraph 6(a) was satisfied. Accordingly, the evidence did not allow it to find that Mr Cole has suffered a disadvantage.

My analysis shows that the tribunal went wrong in both fact and law by finding that Mr Myers had used his position to confer a disadvantage on Mr Cole. It was not entitled to make that finding. How, then, should I dispose of the case? I could remit the case for a rehearing before the First-tier Tribunal or re-make the tribunal’s decision. In view of the nature of the allegation against Mr Myers, I consider that it is appropriate for me to re-make the decision.

I cannot find that Mr Myers conferred any disadvantage on Mr Cole. I have already explained why.

Nor can I find that he conferred a benefit on himself or his fellow villagers. The effect of Mr Myers’ letter on the actions of Laing O’Rourke is, as I have said, a matter of causation and probability. I have explained why the tribunal was right to find that the letter did not confer a financial disadvantage on Mr Cole. For the same reasons, I cannot find that it conferred a benefit on Mr Myers or anyone else.

That leaves the issue whether or not Mr Myers attempted to confer an advantage or disadvantage. This possibility was not considered by either the Committee or the First-tier Tribunal. It has never been investigated and I must, therefore, be hesitant in making any finding adverse to Mr Myers. The tribunal found that he had created the impression of acting for the Council, but that is not the same thing as attempting to do so. It is an objective analysis of the effects of his actions, not a subjective finding of his intentions. He certainly wanted Laing O’Rourke to move from the site and he acted with that in mind and in view. But the evidence does not allow me to find that he attempted to use his position to achieve that. At the most, I can only find that he was naïve in adding his office to the letter and that is not enough.

Accordingly, I must find that Mr Myers was not in breach of paragraph 6(a) as alleged against him.