Council "had power to indemnify" director of public health in legal claim against blogger, external auditors conclude

Sandwell Metropolitan Borough Council had the power to indemnify its Director of Public Health in a legal battle with a blogger, but legal advice should be sought first should any similar situation arise.

Those are among findings in an updated audit report by Grant Thornton that arose from complaints by the blogger, Julian Saunders, that Sandwell should not have met the £96,332  plus VAT costs of the director’s legal action, which the blogger won when Sandwell’s claim was struck out.

The dispute began in June 2020 when Sandwell’s Director of Public health Lisa McNally contributed a video to support Mental Health Awareness Week, speaking about her mental health history on Sandwell’s intranet, its You Tube channel and Facebook page.

Mr Saunders made comments on social media, which Dr McNally considered were abusive and constituted harassment.

She consulted the then chief executive, and advice from a QC was that the threshold for legal action was met and an injunction could be achieved.

The case reached court in July 2021 when Mr Justice Chamberlain ruled that a series of “unpleasant, personally critical publications” by Mr Saunders about Dr McNally, did not found a successful claim for harassment under the Protection from Harassment Act 1997.

The judge said then that nothing he said should be taken as implying that he considered any of the criticisms made by Mr Saunders - known as The Sandwell Skidder - of Dr McNally to be justified. “Equally, nothing in this judgment casts any doubt on the effects which she says they have had on her.”

Grant Thornton said Chamberlain J had concluded Mr Saunders’ right of freedom of expression outweighed the director’s interests, including circumstances where Dr McNally had spoken publicly about her mental health.

“The council officers involved were surprised at the outcome of the case based on the legal advice received and management have written to the barrister expressing disappointment,” Grant Thornton said.

“Mental health charities and commentary in the local government media has expressed concern around the judgment and that the bar for demonstrating harassment is too high for high profile public figures.”

It said Mr Saunders contacted it in July 2021 to complain that Sandwell should not pay Dr McNally’s costs and that the indemnity granted to her was unlawful.

Grant Thornton engaged law firm Bates Wells to advise and it “did not identify any obvious grounds on which the granting of the indemnity could be said to be unlawful and noted that the reasons given for granting the indemnity appear to be rational, and take into account relevant factors”.

The auditors said the dispute concerning the blog posts had occurred during the pandemic when Dr McNally “had a critical and high-profile role locally.

“Given the legal advice received by the council and senior officer recommendations it is unsurprising that the deputy leader agreed to support the [director] in taking forward legal action.”

They added: “We are satisfied that the council had the legal powers to indemnify the [director] and that the deputy leader had delegated powers to make this decision.

“Should the council find itself in a similar scenario in the future, it would be prudent to obtain external legal advice on the specific circumstances under consideration, before any final decision on an indemnity is made.”

Commenting on Grant Thornton’s report, Mr Saunders told Local Government Lawyer: “Everything I wrote about McNally related to her personal Twitter account - specifically not an official council account. Sandwell purported to rely on The Local Authorities (Indemnities for Members and Officers) Order 2004 which clearly does not permit a council to indemnify an employee in respect of their personal social media output. The case was not brought by the council but by McNally herself.”

He added that the case was struck out “on all counts at a very early stage”.

Mark Smulian