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Wednesday, 7 January 2015

The Costs of Legal Actions

I thought I would do a post on the possible costs of legal actions, even if as in the Bailey Judgement, you win your case on every point.  I recall a member of the current Brent Executive being quite dismissive of the potential dangers of getting into a legal wrangle with Veolia over the Public Realm Contract.  The nicest thing I can say about that is that it demonstrated a certain naivety. 

The first cost is in poor publicity.  In the libraries case, you can argue that the decision to prioritise winning the Court case over the public relations was the wrong one, but in practice I think it is hard for local authorities to do otherwise.  The reality is that journalists want a David vs Goliath story where plucky local residents take on a Council behemoth.  Even where they make some kind of balance, they tend to lead off with "Brent Council did all sorts of bad things" at great length, followed by the phrase "The Court was told."  If you are lucky you will get a brief bit at the end denying that the Council is wrong.  They just aren't interested in writing a more nuanced story, so they won't.  A period of negative publicity is therefore inevitable, and the Council just has to ride through it.

A sidelight on this process is the modern purpose of celebrities as all purpose experts.  In the Brent case, I suspect many had made not the slightest attempt to understand the policy they were criticising but simply repeated a line.  This worked in terms of generating negative publicty, although it was of little use in the court itself.

The second is delay, which for a local authority probably costs money as well.  Brent had budgeted for a half year saving in the first year, that is that savings would begin from 1st September.  Even with a fairly swift hearing in July, the High Court judgement was not handed down until 13 October.  Only at that point was the Council able to swiftly act to start implementing the savings, before a further appeal caused more delay.  The final set of delays ran out in December.  This had a cashable impact, but also an impact on the uncertainity of staff and increasing difficulties in running a service where the staff were leaving because they expected the library litigants to lose.

A further hazard, which was perhaps specific to the Brent case, was that the opposing lawyers set off a barrage of letters trying to micro-manage the library service, and threatening injunctions during the course of the case.  This was eventually dealt with by suggesting that they could apply for an injunction and if so the correspondence would be made available to the Court.  This quietened them down, but a lot of energy had to be expended in the interim.

Arguably, there was still a cloud hanging over the service until the final collapse of the Court case on 3 February.  I think this last stage of legal action really was just designed as a delaying tactic in a war of political attrition rather than an effort to raise any serious legal issue. I am not alone in regarding the use of the law as a political delaying tactic as wrong

Another effect, which is quite curious and counter intuitive is that the Court case is now quite binding on the Council's future decisions on libraries.  This is, of course, the opposite of what the litigants intended, but resulted from the Council winning the case.  The High Court judgement gives an unassailable legal basis for the Council in running its library service.  If, like me, you regard Brent Libraries service as a great success, you may see this as a good thing.  It is a key part of why subsequent efforts to undermine the service have failed, and only relatively minor cuts are posed in the current budget round.  Others, who set a lower value on the success of Brent libraries than I do, may lament the decreased flexibility of the Council's decision making. 

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