Issue - meetings

Duncan Wilson – Chief Executive, Alexandra Palace – introduced the report as set out.  He welcomed Robert Oakley – LLP Partner, Bates Wells and Braithwaite (BWB) – who was in attendance to present the preliminary advice of BWB on the merits of taking further the case (if any) against the Trust’s former legal advisors, Howard Kennedy.

Mr Oakley informed the Board that based on the reasons set out in the report, there would be little merit in further exploring a claim in negligence and/or for breach of contract against Howard Kennedy.  Such a claim would be expensive and would have very limited prospects of success. 

Mr Oakley referred the Board to paragraph 48 of the report, in particular to the line ‘it was and is not our role to advise on the commercial prudence of this decision and we were not asked to advise upon the licence terms’.  Mr Oakley advised that ‘the Court has held that if, in the course of doing work for which he is retained, the solicitor becomes aware of a risk or potential risk, this does not mean that the solicitor should go beyond the scope of his/her instructions, or do ‘extra’ work’.  It was clear that Howard Kennedy had not been asked nor was required to advise on the drafting of or entering into the licence with Firoka.

In response to questions from the Board, Mr Oakley explained that once advice had been given to an authorised person, a solicitor would not normally be expected to police how his advice was disseminated within the client organisation.

Councillor Hare referred to the meeting where the Board had agreed the licence, and that he recalled that he had asked the then Trust Solicitor Iain Harris’ opinion as to whether the Board should go ahead and give its agreement for officers to proceed with the proposed licence.  Councillor Hare stated that Mr Harris had responded ‘yes’ – however there was no record of this in the minutes of the meeting.  Robert Oakley responded that a solicitor should only be asked for legal advice and Iain Harris would not have been duty bound to provide advice on any business decisions of the Trust.  Mr Oakley added that as there was no written record, a court would not favour ‘recollection’ over contemporaneous evidence. 

Councillor Williams questioned the rationale of paragraph 28 of the report, adding his view that if someone had attended meetings and was aware that their advice was not asked for / taken into consideration and did not say anything then this would be a case of the solicitor withholding information.  Duncan Wilson and Julie Parker informed the Board that further investigation had shown that later advice given by Iain Harris was that it would be prudent to wait a month before proceeding with the proposed licence.  Robert Oakley explained that a solicitor would only act within the scope of their retainer – they would not make any comment or provide legal advice if it was not  ...  view the full minutes text for item 262