Agenda item

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 within their remit.

Duncan Wilson informed the Board that in light of the advice provided by BWB with regards to legal comments, future reports would make clear exactly which issues had been referred to the Trust Solicitor for advice.

Nigel Willmott commented that the report was welcomed and felt that a line should now be drawn under the situation.  The blame for Firoka should not lie with Iain Harris or Howard Kennedy, but politically.  It was important to note that governance had now improved, and the Board should now note the lessons learned and move forward.  The Chair agreed that this had been a useful and necessary process to go through.

Councillor Williams asked what the Board had hoped to achieve by going through this process, and how it arrived at this point.  The Chair explained that this had been an ongoing issue for Board Members, and following a discussion at the last APPB meeting, a specific request had been made to explore the feasibility of taking legal action against Howard Kennedy.  The advice provided by BWB allowed the Board to make an informed decision and would be able to say, if questioned, that the issue had been fully explored before a decision had been made.  Councillor Stewart, in reiterating the views of the Chair and Nigel Willmott observed that from recollection it had been both Councillors Hare and Williams that had made the specific request to explore the feasibility of taking legal action against Howard Kennedy, which had then been agreed by the Board.

The Chair MOVED and it was

RESOLVED that in respect of the outstanding issue of whether there was a case to pursue against the former Solicitors to the Trust – Howard Kennedy – in respect of the terms of the licence granted to Firoka in May 2007, the written advice given by Bates Wells and Braithwaite (BWB) – current Trust Solicitors – in this respect be noted, and that in light of that advice it be agreed not to pursue any claim against Howard Kennedy, for the reasons given at points 61-66 of the report of Bates Wells and Braithwaite (BWB).