BT legal claim of £56 million

Dear Liverpool City Council,

In Cabinet paper "LDL Contract Refresh Proposal" submitted on 29th
June 2011, the following statement is made :

"4.3 Negotiations have been ongoing and BT responded in May 2011
with a final offer to LCC which includes the following . . .

. . . The ‘ write off’ by BT of potential legal claims against
Liverpool City Council ( estimated by BT at £56m) - The writing off
of these claims removes an element of financial uncertainty and the
possibility of litigation from the City Council"

Given that the committee paper was written by an officer of the
Council and signed off by the Leader and the Chief Executive, this
implies that the Council believed that this legal claim had some
merit - otherwise, there would have been no perceived value to BT's
'offer' and therefore no relevance to its inclusion in this cabinet
paper.

Q1 : When was the legal claim first communicated by BT to LCC?

Q2 : Please provide copies of all correspondence related to this
claim. Given that some of this correspondence will be subject to
legal privilege, I would expect to see some redaction of content.
Nevertheless, it is in the public interest to understand the depth
to which this matter was investigated and contested by LCC, and a
sequence of letters and emails - albeit with some redaction - would
provide such an indication

Yours faithfully,

Jenny Griffin

Dear Ms Glanville,

Thank you for your response, which I copy below :

"I can confirm the Council holds some but not all the information
you have requested.
In response to point 1 the legal claim was first communicated to
the Council in the BT Refresh Proposal document dated 27 May 2011.

In response to point 2 the Council considers the information you
have requested exempt for release under Section 42 – Legal
Professional Privilege (LPP). LPP covers communications between
lawyers and their clients for the purpose of obtaining legal
advice. LPP is not defined in FOIA or in any other legislation
however for the purposes of this response we have identified LPP to
cover the following.

LPP is intended to provide confidentiality between professional
legal advisers and clients to
ensure openness between them and safeguard access to fully
informed, realistic and frank legal advice, including potential
weaknesses and counter arguments. This in turn ensures the
administration of justice. LPP belongs to the client, and material
protected by LPP cannot ordinarily be revealed without the consent
of the client, even to the court.

We can advise that the LPP in this instance was provided by an
external solicitor and the advice was oral advice. Under FOIA we
can only consider requests for information that are held in an
electronic, digital and or hard copy, as this information was
provided orally we do not hold a copy of this information. With
regard to communications from officers and Members regarding this
issue we confirm we are applying Section 42 as it fulfils the
criteria as set out earlier in our definition of LPP. I can confirm
the client has not given consent for the release of this
information. The reason for non disclosure by the client is that
the Council has approved the extension to the LDL contract however
we are finalising the necessary variations to the Contract
documentation, on this basis the Council may still rely on the
advice that has been provided.

Section 42 is a qualified exemption which requires the Council to
consider a public interest test; there are two strands of LPP:
litigation privilege and legal advice privilege. The advice that
has been provided is recent and still live i.e. is still being
relied upon. Consequently there would be no public interest
satisfied by the disclosure of the information. The Council
considers the information is thereby exempt from disclosure,
pursuant to Section 42 of FOIA.
This concludes our response to your enquiry."

I would like to request an internal review, for the following
reasons :

1. LPP can be waived by the client. The client, in this case, is
LCC - so it is within your power to waive LPP. I see no reason not
to do so, particularly as my FOI request made clear that redaction
of sensitive material would be accepted

2. The response implies that the only legal opinion sought was
external, and provided orally. It is claimed that no written
records were kept. This is so at odds with custom and practice in
local government that I believe it would be appropriate to
challenge its accuracy

Could I also ask whether internal legal opinion was sought? You say
that the only legal advice was external and provided orally, hence
no written record. (It does seem remarkable that nobody made notes.
Whenever people try to sue me for £56 million pounds I ask my
solicitor for a written summary).

Yours sincerely,

Jenny Griffin

Dear Andrea Glanville,

I'm a little curious - I just googled this, and found a number of
reports dated March 2011 which refer to BT's claim against the
council :

http://www.liverpooldailypost.co.uk/live...

Did the papers know before the council did?

Yours sincerely,

Jenny Griffin

Dear Mr Symm,

Thank you for your response, which is copied below :

"Your request has been assigned to me to investigate and review and
the result of my review is contained in this letter.

I have investigated the Council’s response made to you on 18
November 2011.

The information you requested was as follows:

1. When was the legal claim first communicated by BT to LCC?

2. Please provide copies of all correspondence related to this
claim. Given that some of this correspondence will be subject to
legal privilege, I would expect to see some redaction of content.
Nevertheless, it is in the public interest to understand the depth
to which this matter was investigated and contested by LCC, and a
sequence of letters and emails - albeit with some redaction - would
provide such an indication

For the purposes of clarity I will be conducting our internal
review based on the following which was emailed to the City Council
on the 18 November 2011 and, whilst the City Council acknowledges
the further information you provided by way of this correspondence,
only the following paragraph can be considered for the purposes of
any internal review.

• LPP can be waived by the client. The client, in this case, is LCC
- so it is within your power to waive LPP. I see no reason not to
do so, particularly as my FOI request made clear that redaction of
sensitive material would be accepted

The response implies that the only legal opinion sought was
external, and provided orally. It is claimed that no written
records were kept. This is so at odds with custom and practice in
local government that I believe it would be appropriate to
challenge its accuracy

Could I also ask whether internal legal opinion was sought? You say
that the only legal advice was external and provided orally, hence
no written record.

Our original response stated that we were unable to provide
information is we considered the information exempt from release
under section 42 of the Freedom of Information Act 2000 and
conducted a test of public interest in accordance with the piece of
legislation being a qualified exemption.

In order to confirm the validity of the information we originally
provided I have re-contacted and liaised with all of the relevant
members of the City Council who were involved in the drafting of
your response and, accordingly can confirm the following.

Whilst Section 42 can be waived the City Council feels that it has
already provided evidence that the waiving of this exemption would
not be in the public interest.

Confirmation was supplied in our original response that no
permission has been granted for the information requested to be
released and the City Council has also stated that the exemption is
applicable as the advice is still live and being relied upon.

Consequently the City Council upholds its decision to provide the
response it did.

However, a further element of your internal review contained a
further request for information. Although the City Council would
usually advise requestors to submit requests formally, in this
instance, the City Council can respond that internal legal opinion
was sought and provided verbally.

As I have now reviewed your original response, you have exhausted
the Council’s appeals process for the purposes of this request.
Accordingly, should you remain dissatisfied, please contact The
Information Commissioner’s Office"

So, in summary :

1. During March 2011 the local newspapers reported the £56 million
claim by BT, but for some reason this was not known to the Council

2. In May 2011 the Council was notified

3. The Council then took internal and external legal advice, but
did not make any notes. Both sets of advice were verbal but nobody
thought it worthwhile to make a written note, or to request one, in
a matter with a value of £56 million

Is it me?

Yours sincerely,

Jenny Griffin