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'Positive Dialogue' - ODA threatens libel action against Leabank Square Blog

After more than a year of seriously annoying and disturbing the residents of Leabank Square with dust and noise from its construction project the Olympic Delivery Authority has further turned the screw by insisting that residents should desist from denouncing a member of staff. In comments, although not in articles, posted on the Leabank Square blogspot residents had vigorously condemned the performance of the ODA’s community relations manager, Giorgia Sharpe. The author of the blog was threatened by an ODA lawyer with libel action if he didn’t remove the criticisms.

The ODA correspondent, who did not identify him or herself beyond ‘General Counsel, Olympic Delivery Authority’, claimed that the ODA and its staff respected ‘legitimate, fair and accurate criticism’ and ‘the right of free speech’. However, the lawyer went on to say that the ODA would take action on behalf of this member of staff if the comments were not removed and would launch a libel action, presumably using public funds, if this was not done and that failure to comply with its demands would ‘aggravate the damages claim’.

Despite the ODA’s claim that the statements were ‘threatening’ the examples cited did not bear out this claim. No-one threatened any violence or action against Ms Sharpe. The ODA’s statements were certainly threatening! However, it is unclear that the ODA would have the power to support its member of staff in a defamation suit. Section 7.8.3 of the Local Authorities (Indemnities for Member and Officers) Order 2004 states ‘No indemnity may be given under the Order in respect of Defamation’. In other words the officer would have to take action herself and cover her own costs.

The status of the ODA is uncertain so it may argue it is not limited by this Order. However, according to the Carter-Ruck website ‘Individuals, companies, firms, certain charities and trade unions can all bring proceedings for libel and slander. Governmental bodies (local authorities and central government bodies) and political parties cannot - but if the allegation reflects on them, individual councillors, civil servants and politicians can all bring actions in their own name.’

The ODA’s website states that ‘As a public body, the ODA is accountable to Government, the GLA and other stakeholders for its work.’ This would seem to place it in Carter-Ruck's category of ‘governmental bodies’. Of course, who exactly these ‘stakeholders’ are and how they hold the ODA to account is not clarified. Leabank Square residents, as those directly affected by the ODA and its activities, might consider themselves to be in this grouping. Perhaps they should be attending board meetings to fulfil this vital role.

Further to the definition above, in a libel case brought in 1993, Derbyshire County Council, which sued the Times for defamation, was described by counsel for the Times as ‘a governmental body performing public duties and exercising public powers not possessed by individual citizens or private bodies’, a description entirely appropriate to the ODA.

In the Derbyshire case the attempt by the local authority to bring a defamation suit attracted strong criticism from the Law Lords who condemned it as an attack on freedom of speech. This case and another, in which council officers were supported by Bedfordshire County Council, featured in a 2002 debate in the House of Commons. In the Derbyshire case the Law Lords held that ‘it was of the highest public importance that a governmental body should be open to uninhibited public criticism, and a right to sue for defamation would place an undesirable fetter on freedom of speech.’ They also stated that ‘there was no public interest favouring the right of Government organs to sue for libel’ and indeed ‘it would be contrary to the public interest for the organs of Government, whether central or local, to have that right.’

In the same case, opposing the right of governmental bodies to use public funds to sue for defamation, Lord Keith referred to a previous judgement in South Africa and stated ‘I have no doubt that it would involve a serious interference with the free expression of opinion hitherto enjoyed in this country if the wealth of the state, derived from the state's subjects, could be used to launch against those subjects actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country.’ It is worth noting that the Law Lords referred to the need for ‘uninhibited public criticism’ and that authorities should not be allowed to sue even when they have been ‘falsely and unfairly…criticised or condemned.’ The ODA, of course, also derives its wealth from 'the state's subjects'.

In the 2002 debate Patrick Hall MP, referring to the case where Bedfordshire County Council had supported three of its officers in launching a defamation action, made a similar point when he argued ‘I hope that my hon. Friend (the Minister) will agree with me that local authorities should not maintain and support libel actions directly or indirectly. I hope that he will also agree that such actions cannot be in the public interest, that they would undermine freedom of speech in our country, that they form no part of duty of care, and that they must therefore be stopped once and for all.’

It was in response to this case and this debate that the government moved to implement its 2004 Order. The Minister, Dr Whitehead, responded in the debate ‘We are therefore minded to propose to prohibit authorities from indemnifying members or officers for the cost of taking legal action for slander or libel… That would risk, among other things, an increase in litigation, and it could stifle legitimate public debate. My hon. Friend the Member for Bedford mentioned the comments of judges on that issue.’

Despite its assurances on upholding free speech the ODA counsel does not seem to understand the principle of free speech as expounded in these cases and debates by the Minister, Member of Parliament and Law Lords.

Mr Hall went on to argue ‘if a Government or a local council disagree with comments made, they have suitable avenues open to them to obtain a remedy without recourse to litigation. The normal and healthy response is to investigate the complaint, debate the issues openly and issue a rebuttal in the media. Public criticism of an officer or councillor may sometimes be harsh and unfair, but that is an occupational hazard.'

In responding to the criticisms on the Leabank Square blog, if it had wished, the ODA could have used the comments box on the blog to argue its case and defend its employee or simply have issued a rebuttal as Mr Hall suggested. The criticisms of Ms Sharpe have to be seen in the context of the dispute between the ODA and the residents and plainly relate to the performance of the ODA as a whole. For example, in one of the criticised comments the resident described the ‘whole bunch up in Canary Wharf’ as untrustworthy idiots. As the ODA’s representative in its dealings with Leabank Square Ms Sharpe has plainly borne the brunt of residents' frustration. Rather than taking the barbs personally maybe she and the ODA should regard the criticisms of incompetence, untrustworthiness, lying and misleading residents as a more general criticism and try to address the specific issues raised.

The ODA lawyer only sees offence in the language employed by the residents. For residents the offence is in the performance or negligence of the ODA. The ODA had promised to use bowsers and sprays to control dust but residents reported this had not happened and that they have continued to suffer from dust covering their homes. That residents are not exaggerating is demonstrated by reports of air conditioning units near the park breaking down because of the dust being produced. The ODA, of course, argues that it is doing all that is required by law, which is simply aggravating to those on the receiving end of this pollution.

In addition, the ODA deliberately, without consultation and for its own convenience placed noisy soil washing machinery opposite the estate claiming this was the only possible location even though it had other soil washing machines elsewhere on their site. For several months the machinery was working until 10pm. The hours were then reduced to 8pm which the ODA regarded as a concession. On one occasion a meeting between residents and ODA officers being held in a flat on the estate had to be adjourned because the machinery was so noisy. Permission to work out of hours and for emergencies is regularly given without any consultation with residents.

The ODA cannot claim it wasn’t aware of these kinds of issues and hasn’t had a chance to learn how to improve its performance. Residents and travellers at Clays Lane had similar experiences with the ODA in 2007. When residents at Clays Lane protested at work being done out of hours and close to the estate in defiance of planning restrictions ODA development control did not even respond to emails and took no action. When contractors demolishing the Park Village estate failed to control dust and then lied to Environmental Health officers about the work they were doing, claiming they hadn’t even started demolishing the housing despite the fact that several houses had already been knocked down, no action of any kind was taken. Travellers in particular reported ear, eye, nose and throat infections as a result of this work. The ODA later stated that all its measurements showed dust levels were within acceptable limits. Evidence of pollution from residents and travellers was described as 'anecdotal'. Travellers later experienced further problems with dust when the Clays Lane estate was being knocked down and, on that occasion, work had to be suspended after their protests.

None of this takes into account the health risks of living next to a construction project as potentially dangerous as the Olympic Park. Any kind of dust can be dangerous to health. However, the Olympic authorities have chosen to dig up heavily contaminated former industrial sites, most of which could have been left undisturbed at no risk to anyone. Digging up these sites has created risks to neighbouring communities from exposure to this contaminated dust. The site directly opposite Leabank Square was described by the LDA as ‘moderate risk of finding contamination harmful to human health’. Other sites to the east and south were defined as ‘high risk’. Along with the general movement of soil, 7,000 tonnes of radioactively contaminated material has been dug up, moved around and reburied on the park. Soil polluted with other industrial contaminants and heavy metals has also been excavated and moved around during the decontamination process. Contaminated material has also been moved off the site. Residents have every right to be concerned and aggrieved at failures to damp down such large quantities of contaminated material. The long term health risks to residents are simply unknown.

The ODA objects when its staff are denounced in a community blogsite for the way they have dealt with the community and insists this is offensive. However, others like Clays Lane residents and travellers also experienced lying by contractors, broken promises, misleading statements and incompetence and did not trust what the ODA said. The ODA fails to take any account of the offensiveness of its behaviour towards those who suffer at its hands. At both Clays Lane and Leabank Square travellers and residents’ evidence of pollution was and is dismissed as 'anecdotal'. In its threatening letter the ODA makes no attempt to respond to residents’ complaints about its failures and broken promises. Instead, in a bizarre attempt to assert the normality of the situation its lawyer refers to the ODA’s desire to ‘continue our positive dialogue’ with residents.

Far from respecting free speech and welcoming feedback from residents, as it claims, the ODA has chosen to bully and threaten those it has harmed. In a recent statement the ODA claims it ‘places a strong importance on community relations and being a good neighbour around the Olympic Park site.’ Residents and travellers at Clays Lane did not find this to be the case. The idea that placing soil washing machinery and operating it until 10pm right opposite a housing estate represents neighbourly behaviour demonstrates the radical disjunction between rhetoric and reality which characterises so much about the Olympics. The fact that the ODA can attempt to describe such a failed ‘dialogue’ as ‘positive’ amply demonstrates its overbearing and dismissive attitude and reveals how divorced it is from any understanding of the feelings and experience of the residents at Leabank Square.

With thanks to Charles Batsworth for his input on the legal background.

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