BT legal claim of £56 million

Jenny Griffin made this Freedom of Information request to Liverpool City Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Liverpool City Council did not have the information requested.

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

Katie M. left an annotation ()

Yes. The other question on this is whether or not they got proper legal advice from an expert in commercial law, to determine whether BT's claim had any likelihood of success, given it's non-compliance with all sorts of contractual clauses.
We know they asked all sorts of management consultants, accountants and, of course, the District Auditor. Surely they also asked appropriate legal experts (like they did over McElhinney's secondment).
And if they didn't, why didn't they?

Jawahier Sharif Ali, Liverpool City Council

Dear Ms Griffin,

Acknowledgement of your request for information.
Thank you for your recent correspondence requesting information from the
City Council.  Your request was received in our offices on
24^th October 2011 and, is being processed in accordance with the Freedom
of Information Act 2000.

The information you have requested can be summarised as follows:

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.

If the above summary is incorrect or you wish to change any details, let
me know at the earliest opportunity.

A response will be sent to you as soon as possible and in any case within
the statutory deadline which is 20 working days from the working day after
your request was received.

For your information, the Act defines a number of exemptions which may
prevent the release of information you have requested. There will be an
assessment and, if any of the exemption categories apply, the information
will not be provided to you.  You will be informed if this is the case

Please quote the above reference number in all future communications.

Regards 
Jawahier Sharif Ali (Fatima)
Information Officer
Legal Service
Liverpool City Council
Municipal Buildings
Dale Street,
Liverpool
L2 2DH
Tel: 0151 225 3132
Email: [1][email address].uk 
Website: [2]www.liverpool.gov.uk

P  Please consider the environment before printing this email. Thank you. 

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Andrea Glanville, Liverpool City Council

1 Attachment

Dear Ms Griffin
Please find attached your response to your recent FOI request.
Regards
A Glanville

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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

Julian Todd left an annotation ()

Next question:

Please provide the name of the external solicitor, what was he paid and how many hours did he work?

Normally we would not be interested in this level of granularity, but as this is the only evidence of this spectacular claim, we have a right to know how much care and attention was put into it.

Was it a five minute job, simply relaying some info from BT verbatim, or did someone, anyone at all, inspect the merits of the case before presenting it to the Council as a realistic threat?

Jenny Griffin left an annotation ()

Julian,

As I'm in the process of an internal review I'd like to keep my powder dry on this one.

Do you think you could do the honours?

Kevin Symm, Liverpool City Council

1 Attachment

Please find attached response
Regards,

Kevin Symm
Senior Information Officer
Legal Services
Liverpool City Council
Municipal Buildings
Dale Street
Liverpool
L2 2DH
TEL: 0151 225 3132
[1][email address]

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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

Katie M. left an annotation ()

Two points about the legal advice:
LCC say the claim was made in the Proposal received on 27 May 2011. And sought internal advice. Was this the advice of the City Solicitor and Monitoring Officer, Paul Evans?? Because he left LCC abruptly at the end of May - a couple of days later. If it wasn't him, who was it who provided the internal advice?
As for the external telephone advice - if this cost more than £500 (??) it will be in the published accounts.
Just like the princely £25,000 paid to E&Y for the rubber stamping exercise .... that for some unknown reason trumped the £250,000 investigation that took internal and external experts 18 months to complete. Reminds me of those referendums in Europe, where they kept asking the question until they got the reply they wanted.
The motto, presumably, is "If at first you don't succeed........try, try and try again".