Privilege: John Hemming and Withers LLP - Standards and Privileges Committee Contents


Evidence from John Hemming MP

Ev 1: Initial briefing note for Standards and Privileges Committee

6.  This note deals with the matter of Jeremy Knight Adams, Withers and how attempts have been made to intimidate John Hemming MP and prevent him from speaking freely in Parliament in contravention of Article IX of the Bill of Rights. The note also goes into the background relating to the issues. Certain documents are highlighted, but all documents have been provided.

7.  John Hemming is Member of Parliament for Birmingham (Yardley). Yardley is on the East of Birmingham near the Airport, National Exhibition Centre and Birmingham International Railway Station (all of which are in fact in Solihull). There was a shopping centre built in the1960s known as the Swan or Tivoli Centre in the centre of the Constituency known as The Swan after a pub that used to be in that location.


The tower block is Bakeman House which is 10 floors of 12 flats which is primarily an elderly persons sheltered scheme (with a common room and caretakers). There are also   some people with disabilities that live there.

8.  In the late 1990s proposals were put forward by Sainsburys which involved the demolition of the shopping centre and building of a new supermarket and shopping centre. This took up a large amount of a local park (Oaklands) and was not liked by the local residents. An alternative proposal was put forward by Tesco which obtained support from local residents and politicians because it regenerated the shopping centre and also did not take up as much of the local park. In the 2000s this proposal went through the planning process. During the period Asda also bought some land. Back in 1986 a Mr Jeremy Knight Adams also bought some land. At the time of the start of the dispute (July 2009) a Compulsory Purchase Inquiry was proceeding into the land held by Mr Knight Adams and also HXRUK (Midlands) Limited (a Jersey Company), Birmingham City Council, 5 plots where the owners were unknown and the trustees of the St Michael's Healing sanctuary (5 people who live locally). The Inquiry was initiated as a result of the opposition of Mr Knight Adams to the Compulsory Purchase Orders.

9.  It is worth noting that at this point the shopping centre had been demolished and the elderly residents were living in part in a building site. (photo taken in April 2009)

10.  The Inquiry itself occurred over a number of days. Councillor David Osborne as one of the three ward councillors for South Yardley gave evidence. The evidence was on behalf of the local councillors and MP. The evidence explained how Mr Knight Adams had not been offering an alternative scheme during most of the 10 years of discussion and the inspector was implicitly invited to draw the conclusion that his opposition to the CPO was merely a tactic for delay. He had a history of such spoiling tactics having been involved at a Sainsbury's development in South Birmingham (The Maypole) and other developments in Worcester and Cheltenham.

11.  Mr Knight Adams contacted Cllr Osborne about his evidence and attempted to persuade him to change his mind. Cllr Osborne was, however, not minded to change his evidence. Mr Knight Adams then made vague threats about instructing his legal advisors.

12.  It is important to note that this viewpoint is a settled viewpoint of all of the locally elected representatives including all councillors and the MP.

13.  At this time the councillors and MP were circulating a newsletter in which they stated:

"During July, a public enquiry is taking / has taken place into compulsory purchase of land needed by Tesco for their supermarket at the Swan. A few small plots have been purchased by people with the intention of delaying the Tesco development. We are appalled at these 'spoiling' tactics and have supported Tescos at the enquiry."

14.  On Wednesday 29th July whilst the inquiry was still progressing a letter threatening defamation proceedings against the local councillors and MP was sent to Councillor David Osborne and Councillor Paul Tilsley (who is Deputy Leader of the City Council and a councillor in Yardley). This requested them to issue a statement as follows:

Draft Correction and Apology

to be issued by

Councillor Paul Tilsley and Councillor David Osborne

Apology to Jeremy Knight Adams

We recently circulated a leaflet in the Yardley District in which we wrongly alleged that a few small plots had been purchased by people with the intention of delaying the Tesco supermarket development at the Swan, which we described as appalling spoiling tactics. We now understand that the owner of the plots,Mr Jeremy Knight Adams, purchased them over 20 years ago and he introduced Tesco to the site in 1993. He did not purchase the plots to delay the Tesco development nor is he using any spoiling tactics as we wrongly stated. His aim is to secure for Yardley a new development which complies with local, regional and national planning policies. He has no objection whatsoever if Tesco carries out a development along the lines he has proposed and he is prepared to do all he can to bring this about. We unreservedly apologise to Mr Knight Adams for our unfounded allegations and we have agreed to pay damages to a charity of his choice.

Councillor Paul Tilsley and Councillor David Osborne

on behalf of the Liberal Democrats

15.  At this point John Hemming the Local MP got involved in discussions with Withers. In discussions between Mr Hemming and Jennifer McDermott (the Withers partner dealing with the issue) it became clear that there was urgency on Mr Adams Knight's side in getting the party to issue a statement as the inquiry was progressing and such a statement could be used to influence the enquiry. "The urgency is not only the resumption of the public enquiry"—email from Jennifer McDermott to John Hemming Thursday, July 30, 2009 3:46 pm.

16.  Mr Hemming was quite happy to issue a clarification that the party was not alleging that Mr Knight Adams specifically bought his land with a view to acting as a spoiler. However, he made the point that

a)  The article does not identify Mr Knight Adams because

i)  Other people (specifically Asda and to some extent Sainsburys) had bought the land to delay the development. That allegation was not being made about Mr Knight Adams

ii)  The CPO inquiry is about a number of pieces of land, not just that owned by Mr Knight Adams

b)  His view was that in opposing the CPO Mr Knight Adams was using "spoiling tactics" and as such he would be unwilling to make a statement otherwise.

The article was intended to refer to the actions of Sainsbury's and Asda in buying land when a Tescos development was proposed.

17.  Although it was not thought of at the time it is quite clear that Mr Knight Adams was using the threat of a legal action in an attempt to get the local elected representatives and particularly Councillor David Osborne to change his evidence and his view prior to the end of the enquiry.

18.  The sums of money that Mr Knight Adams could potentially get from Tesco if he can continue to delay the project are of the order of a seven figure sum he has we believe been offered £400,000. Whilst the process of development had been delayed for the normal reasons that a major project gets delayed Mr Knight Adams did not do anything to put an alternative proposal forward. However, as soon as it started really moving he started talking about an alternative. Hence he was not responsible for the original delay only for derailing the whole project after building work had started.

19.  A sequence of communications have since followed between John Hemming and Withers. At one point John Hemming made it clear that his experience of what Mr Knight Adams had been doing in delaying this project was something that he intended raising in the House of Commons. Withers took exception to this and indicated that they would take legal action against him unless he agreed not to speak in Parliament about the issue. Withers said that his intention to speak in parliament added to the damage. Withers also have said that he should not produce a dossier of Mr Knight Adams' record and have threatened legal action against Mr Hemming unless he removes the following posting from the Internet:

Jeremy Knight Adams

When parliament returns I intend doing a speech about Jeremy Knight Adams and how he is acting in a way which delays the development at The Swan in Yardley. I would be interested in having any other information about his involvement in other developments as it will assist in looking at the law on Compulsory Purchase and what changes may be needed.

If anyone has any useful information could they either email it to me or send it to me at the House of Commons.

20.  A number of other communications were sent by Withers to John Hemming which attempted to persuade him not to talk about the issue in parliament under the threat of proceedings being initiated.

21.  It is worth at this point looking at the tactical issues. Defamation in civil litigation is difficult to handle against a litigant who does not care about the cost of losing (which is what Jeremy Knight Adams' position is thought to be). The quoted cost of writing a response to Withers' initial letters was £4,000. Even winning a legal case initiated by Jeremy Knight Adams could have cost a considerable amount in unrecoverable costs. Hence it was always John Hemming's objective to settle the case without it ending up in court.

22.  There were three phases to the communication. The first phase at the end of July and start of August—which was timed with the ending of the Inquiry. The second phase in later August and early September around the response to the pre-action protocol letter and a final phase in late September and early October before the House recommenced.

23.  The conversation did not come to an agreed conclusion in October. The last communication from Withers was a further threat of initiating proceedings and the last response from John Hemming was an offer of mediation.

24.  It was, however, quite clear in October that there was a real threat of litigation and consequent costs. Furthermore it was quite clear that Jeremy Knight Adams and his lawyers had linked the matter to proceedings in parliament and expressed a view that they did not want the matter to be referred to in parliamentary proceedings. It, therefore, became the risk for John Hemming that if he raised the matter in parliamentary proceedings that he would as a direct consequence face litigation. The litigation itself would not refer to parliamentary proceedings, but would be a contempt of parliament with the precedent of Rivilin v Biliankin (matter linked to parliamentary proceedings). Hence he has had communications with a number of House Officers and also written to The Speaker. Certain correspondence ensued between House Officers and Withers, but it is not appropriate to give details in this note.

25.  John Hemming had been careful not to have any informal conversations with Withers or Jeremy Knight Adams notwithstanding their continual requests for a meeting. That was because it appeared that Jeremy Knight Adams wished as part of the settlement that nothing would be said in the House.

26.  The following extracts from communications may be considered to be in contempt of the House and my warnings that they are committing contempts of parliament.

Any commentary is in square brackets with [--- at the start.

From: Jennifer McDermott

To: John Hemming

Sent: Tuesday, August 04, 2009 5:51 PM

In order to settle this matter we, therefore, require an apology in respect of both serious allegations plus payment of our client's costs, a substantial payment to a charity of his choice and an undertaking not to repeat the allegations or any similar allegations, particularly in Parliament.

Your threat to make a statement in the House of Commons referring to our client's alleged "spoiling tactics" in this and other situations and that our client's threatened proceedings amount to "bullying and an attempt to gag opponents" is tantamount to blackmail. These allegations are untrue as our client is only trying to put right a serious wrong to his reputation. We note that you would only make these allegations under the cover of parliamentary privilege. My client objects very strongly to you doing this and would ensure, via other sources, that the House of Commons were fully appraised of the true situation and not misled.

From: John Hemming

To: Jennifer McDermott

Sent: Wednesday, August 05, 2009 10:35 AM

Subject: Jeremy Knight Adams

I additionally make the point that this matter has now been intimately linked by yourselves with my proposed speech in parliament. As such the whole action now falls within the ambit of Article IX of the Bill of Rights. Any action taken against me or any further threats to me or my colleagues will additionally be taken as being threats against me as part of aiming to prevent me from speaking in parliament about the behaviour of your client or indeed to penalise me for that activity.

I would make the point that should be referred to anyone who works with you on this matter that precedent indicates that anyone responsible for settling any claim form in relation to this action as well as yourselves will also be taking action which is part of aiming to prevent me from speaking in parliament about the behaviour of your client or indeed penalising me for such activity.

From: John Hemming

To: Jennifer McDermott

Sent: Wednesday, August 05, 2009 10:35 AM

Subject: Jeremy Knight Adams

Further to my previous email and in connection with my intent to raise the spoiling and delaying tactics of your client in parliament with a view to identifying how the laws should be reviewed to prevent this behaviour.

I am in the process of collating a dossier relating to other situations (eg Cheltenham) where we have criticisms as to what he has been doing. Would your client wish that we put those criticisms to him via yourselves before making them so that he has an opportunity to respond or not?

From: Jennifer McDermott

To: John Hemming; ***;

Cc: Margaret Robertson; ***; ***

Sent: Wednesday, August 05, 2009 12:12 PM

Subject: RE: Private and Confidential

Dear Mr Hemming

I have informed my Managing Partner of the position and I am drafting a full response to your email.

In a libel case it is normal to ask those responsible for the offending publication not to repeat the defamatory or any similar allegations. As you threatened to damage my client's reputation by making defamatory speeches about him in Parliament, naturally he could not settle the libel action without an assurance that you would not do this. Why you are now threatening to drag me into the situation, I fail to understand. Also the dossier which you are preparing seems as though it will only aggravate the situation further.

[---- the dossier is privileged. Indicating that producing it aggravates the situation is a contempt.]

From: Jennifer McDermott

To: John Hemming

Sent: Tuesday, August 11, 2009 11:26 AM

Subject: Private and Confidential

Dear Mr Hemming,

Thank you for your emails of 4, 5, 6 and 8 August 2009.

May we deal first with the question of the dossier which you are currently preparing. Thank you for offering to show it to our client, especially since there is a risk it may contain inaccuracies and risk being defamatory. Our client believes that it would, therefore, be in his interest and yours to let you have his comments on the dossier before you publish it to any third parties.

However, we have to say that we consider your reference to our client's involvement in other developments to be an attempt to distract attention from the main issue; namely the defamatory and maliciously false leaflet the Yardley Liberal Democrats have published and whether you propose to accept our terms for disposing of the matter without the need to commence proceedings.

Our client, as is normal in such matters, would be prepared to settle if a suitable correction and apology, costs, damages and an undertaking not to repeat these or any similar defamatory and maliciously false allegations could be swiftly agreed.

In your email of 3 August 2009 (15.02pm) you said that you intended to make a reference to our client's alleged "spoiling tactics" in relation to the Swan Development and to his alleged "bullying tactics and the way in which he attempts to gag opponents" at the earliest possible opportunity in the House of Commons.

Clearly, if you did this, you would be repeating the defamatory allegations but you would be protected by Parliamentary privilege. Therefore, if our client is to settle his potential proceedings against you, he would prefer you to agree not to repeat the allegations in Parliament or elsewhere and to honour that agreement whether or not it is legally enforceable.

[—This is another contempt.]

We wish to make it clear, however, that if you were to defame him in Parliament, whether in relation to Yardley or any other matter, Mr Knight-Adams would consider taking steps to draw parliamentary and public attention to your conduct. We do not consider this to be in any way seeking to limit what you choose to say in Parliament. We are merely, out of courtesy to you, giving you fair notice of the action Mr Knight-Adams would consider taking if it were appropriate and lawful to do so.

[--- This might be a contempt as it is a threat to respond, but it is not something I am particularly concerned about - it is an attempt to deter me from speaking.]

It follows that in our opinion, neither our client nor this firm is acting in a manner which breaches Parliamentary Privilege or requires the Speaker's Counsel to be involved.

We became aware on Friday that you had already raised this matter with the Birmingham Post, which is surprising as you did not have the benefit of this e-mail. Our client responded to Paul Dale's enquiries to him and we have now seen his article "Yardley MP faces legal action over leaflet's Tesco land claims" which unfortunately repeats your incorrect allegation that Mr Knight-Adams is trying to "gag an MP". If you have spoken to any other representatives of the media could you please let us know?

We would like to think that you will not aggravate further the damage already suffered by our client but your rush to speak to the media gives us cause for concern. We are also concerned that on your Web Blog you are aggravating the situation by stating:—

"When parliament returns I intend doing a speech about Jeremy Knight Adams and how he is acting in a way which delays the development at The Swan in Yardley. I would be interested in having any other information about his involvement in other developments as it will assist in looking at the law on Compulsory Purchase and what changes may be needed."

In so far as this would be understood to be a repetition of the allegation that our client is involved in improper delaying tactics it amounts to conduct which aggravates the damages payable. As Nourse L. J. Said in Sutcliffe v Pressdram Limited [1991] 1 Q.B. 153 CA at 184:

"The conduct of a defendant which may often be regarded as aggravating the injury to the plaintiff's, feelings so as to support a claim for "aggravated" damages includes a failure to make any or any sufficient apology and withdrawal; a repetition of the libel; conduct calculated to deter the claimant from proceeding; persistence, by way of a prolonged or hostile cross-examination of the claimant, or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract wide publicity; and persecution of the plaintiff by other means."

We would, therefore, ask you to remove this material from your Web Blog and refrain from speaking to the media until you have considered this e-mail carefully.

[--- This is another contempt.]

In relation to your allegation that Mr Knight-Adams is delaying the Yardley development, it appears that you do not know the true facts. The record shows clearly that the scheme to which the CPO relates did not receive planning permission until May 2008. Prior to that date Tesco had spent eight years finalising the scheme which it wished to pursue. Mr Knight-Adams cannot be blamed in any way for the delay over that period. Consequently Mr Knight-Adams' action has only delayed matters since the CPO was made in October 2008, by virtue of him choosing to object to the Order. This objection has been pursued because Mr Knight-Adams received clear advice from independent professional consultants that the Tesco scheme is completely unacceptable having regard to the proposed mix of uses, its urban design and its architecture. His objection, therefore, relates to a matter of exceptional public interest.

In your email of Saturday 8 August (13:15 pm) you incorrectly allege that by initially contacting Councillor Osborne about the defamatory leaflet we were seeking improperly to put pressure on him in his capacity as a person who had made an oral representation to the inquiry. That is patently untrue. We were responding, quite properly, to what the Yardley Liberal Democrats and Councillor Osborne had stated in the defamatory and maliciously false leaflet in which Councillor Osborne was quoted. We explained (Mrs McDermott's conversation with you on 30 July 2009) that the primary reason for wanting an urgent correction and apology, plus the other remedies, was to vindicate Mr Knight-Adams' reputation as quickly as possible, as well as its possible impact on the continuing inquiry. Further Councillor Osborne had already made his representation by that time so that it cannot be said to have been an attempt to influence its content.

You have referred to our need to adhere to the Pre-Action Protocol for Defamation. We have complied with all the letter of claim requirements and we hope that you can respond as soon as possible. Please also bear in mind, if you still wish to prepare your dossier, of the need to "act reasonably to keep costs proportionate to the nature and gravity of the case at the stage the complaint has reached."

There is in our view no prospect of any libel claim regarding the leaflet being struck out. We suggest, in all the circumstances, that you take legal advice from a libel specialist as soon as you can to prevent further misunderstanding and prejudice to your position including placing you at risk of adverse costs orders.

From: Margaret Robertson

To: John Hemming

Sent: Tuesday, August 11, 2009 12:08 PM

Subject: Private & Confidential

Dear Mr Hemming

Thank you for your email of 5 August 2009 forwarding to me an email sent to you on 4 August by my partner, Jennifer McDermott. She is our Head of Media and Public Law.

I have seen Jennifer McDermott's reply to your emails to her (attached) and there is nothing I can add. She has made it clear that you, and any other Liberal Democrats involved in the publication of the offending leaflet, can either settle with our client or be sued for defamation and malicious falsehood. Part of the settlement package, as is normal, would be an assurance that you, and any others involved, would not repeat the offending material, whether in Parliament or elsewhere. It is a matter for you, whether you settle or continue your campaign. Naturally our client would prefer the former.

[--- This is the MD of Withers saying that a contempt of parliament is "normal".]

I cannot, however, see why you feel any 'interesting constitutional point' is raised as Jennifer McDermott has confirmed that you cannot be sued for anything you say in Parliament. You can, however, be sued for the offending leaflet and any defamatory or maliciously false statements made outside of Parliament.

I have to say that I am surprised at your complaint against Jennifer McDermott, who is a very experienced Media and Constitutional Law practitioner. She and those working for her on the case are acting in a completely professional manner.

I hope that this makes the position clear.

Letter to John Hemming from Withers LLP, 14 September 2009

Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry"

We write further to your emails of 9 September 2009.

As we set out in our letter of 8 September 2009, a substantial amount of our client's costs have been incurred by reason of the manner in which you have chosen to conduct this matter, in particular, your inappropriate allegation of parliamentary contempt which theme you have now revived in your second email of 9 September 2009.

[--- This is an interesting contempt because it asks me to pay for the lawyers looking at the issue of contempt - and getting it wrong]

Our client's letter of claim was first acknowledged by you on 30 July 2009. However, it was not until 3 August 2009, after the issues had been canvassed over numerous emails, that you then said that you would make a speech to the House of Commons that our client's proposed claim was nothing more than bullying tactics in an "attempt to gag opponents".

That you have accepted that you defamed our client is manifestly clear by the fact that you have without reservation published on your website an apology for conveying the meaning that we ascribed to the statements that you made in the leaflet.

We refer you to the following paragraphs of the Parliamentary Code of Conduct:

"…9. Members shall base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest.

….15. Members shall at all times conduct themselves in a manner which will tend to maintain and strengthen the public's trust and confidence in the integrity of parliament and never undertake any action which would bring the House of Commons, or its Members generally into disrepute."

It is, in the face of our client's claim and your apology, difficult to see how you could not be in a position of conflict in making your proposed 15 minute speech to the House concerning our client, "all of the developments" with which he has allegedly been involved and details of his alleged "spoiling tactics". We would certainly welcome you comments in this regard. However, should you persist in this vein then our client will have no option but to refer the matter to the Parliamentary Commissioner for Standards for his determination.

It is also, in the light of the fact that the resolution of this matter has been sidetracked by your assertions of parliamentary contempt and further obstructed by your refusal to engage on our client's quite proper claims to damages and costs, disingenuous for you to assert that our client is not concerned with protecting his reputation. We again note that you have published the agreed apology on your website and agreed to our client's circulation of the same to the media.

Finally, you will appreciate that each and every party against whom our client would bring his claim, including you personally, would be joint and severally liable.

In all the circumstances, we would refer you to our letter of 8 September 2008 and each of the remedies sought by our client. We await your proposals in relation to the same.

In the meantime, all our client's rights are reserved.

[--- This links parliamentary and non-parliamentary issues and again tries to intimidate me into not speaking about the issue.]

From: Tamsin Turk

To: John Hemming

Sent: Tuesday, September 29, 2009 3:47 PM

Subject: Not for Publication or Dissemination / Private & Confidential / Without Prejudice save as to Costs - Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry" [faked-from]

Thank you for your e-mails of 14 September 2009. We do not intend to repeat all the issues which have been rehearsed at length in previous correspondence.

The fact remains that you and the other Liberal Democrats involved in the publication of the leaflet defamed our client and as a result he is entitled to the remedies which we have sought, including damages and payment of his costs. You have published an apology on your website and our client is, as agreed, circulating this to the local media. However, the gravity of the harm sustained by our client is considerable and has been significantly aggravated by your accusations of parliamentary contempt and abuse of process. Indeed, even in your last e-mail you continue to aggravate the situation by alleging, falsely, that our client has simply made his defamation complaint in order to persuade you of his position regarding the Yardley development as does your threat to make a speech to Parliament on the matter.

We note that you have not responded to our question about your conflict of interest in making your proposed 15 minute speech to the House of Commons. In this regard, we again refer to the fact that it was not until this matter had been canvassed over a number of days in numerous emails that you then said that you would make a speech asserting that our client's claim was nothing more than bullying tactics in an attempt to "gag opponents". This is clearly a tactic to persuade our client to drop his defamation complaint. He will not do that and indeed has now instructed us to write to the Parliamentary Commissioner for Standards. In our view you should not be making your proposed speech and we expect that the Parliamentary Commissioner will agree.

[--- This is another contempt.]

You say that you may have some insurance. That is clearly a matter for you but our client obviously cannot wait and see whether that transpires although, as we have said on previous occasions, we would welcome your being represented on this matter.

We note also for the record that whilst on the one hand you have said that you wish to mediate this matter you have then said that you would only do so were our client to drop his claim to damages and costs. This is entirely unacceptable.

Our instructions are that, unless the remedies set out in previous correspondence are met, to now instruct without further resort to you Counsel to settle defamation proceedings against you and the others involved in the publication of the offending leaflet and to serve them as soon as possible.

[--- This is another contempt.]

From: Tamsin Turk

To: John Hemming

Sent: Thursday, October 01, 2009 5:22 PM

Subject: Not for Publication or Dissemination / Private & Confidential / Without Prejudice save as to Costs - Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry"

Private & Confidential

Not for Publication or Dissemination

Without Prejudice Save as to Costs

We note that you have no comment to make concerning our client's referral of this matter to the Parliamentary Commissioner for Standards. Our client's position in relation to your proposed speech to the House remains entirely reserved. Please confirm by immediate return when you intend to apply to the Speaker for an opportunity to speak and that you undertake to provide us with at least one week's notice of the date on which you propose to make that speech.

[--- This is another contempt.]

From: Tamsin Turk

To: John Hemming

Sent: Tuesday, October 06, 2009 7:27 PM

6. Noted. We disagree. Our client reserves his right to refer the Parliamentary Standards Commissioner to this line of correspondence.

7. Noted. Our client reserves his right to refer the Parliamentary Standards Commissioner to this line of correspondence.

In view of the stance that you persist in adopting, it is clear that there is nothing whatever to be gained from further canvassing these issues with you in correspondence and that our client has no option but to proceed to issue his claim.

[--- This was the last communication from Withers. It states "in view of the stance you persist in adopting". This relates to the parliamentary proceedings as well as the non-parliamentary issues and hence is a contempt of parliament.

27.  In the absence of contempt proceedings the final communication from Withers created a form of Mexican standoff. A threat of litigation had been formally made. It has been made clear that the litigant does not want a speech to be made in parliament as part of settlement. However, no proceedings have been issued, but nor has the threat been removed.

28.  Once Withers and Jeremy Knight Adams had linked this matter to proceedings in parliament then it could not be disconnected. In particular the situation was created where he had a reasonable basis to believe that if he spoke in parliament about Jeremy Knight Adams that he would receive a claim form issued on a basis that did not refer to parliament. It is important to note that the nature of civil proceedings are such that a recipient of a claim form should expect to incur unrecoverable costs. Hence John Hemming was under the expectation that doing a speech in parliament about this important constituency issue could result in him being required to pay a sum probably in the tens of thousands of pounds.

29.  It remains that a claim form may now be issued as a consequence of the proceedings for contempt. That would be an additional contempt of parliament. It would be ill advised for Withers to do this. However, that would be in accordance with their behaviour to date.

John Hemming

15th January 2009

Ev 1A: E-mail exchanges between John Hemming MP and Withers LLP from 30 July to 6 October 2009, submitted by Mr Hemming

From: John Hemming

To: Jennifer McDermott

Sent: Thursday, July 30, 2009 11:31 AM

Subject: Jeremy Knight Adams

WITHOUT PREJUDICE

I write in connection with your email to David Osborne and Paul Tilsley. I would think it will be possible to agree some form of apology. What figure in terms of legal costs and/or a payment to charity are being suggested?

From: Jennifer McDermott

To: John Hemming

Sent: Thursday, July 30, 2009 12:39 PM

Subject: RE: Jeremy Knight Adams

WITHOUT PREJUDICE

Please could you call me to discuss these matters?

From: John Hemming

To: Jennifer McDermott

Sent: Thursday, July 30, 2009 12:52 PM

Subject: Re: Jeremy Knight Adams

WITHOUT PREJUDICE

Further to this email I have checked the original leaflet. The leaflet makes no specific reference to Jeremy Knight Adams and indeed we accept that he has owned land there for some time.

There are other plots of land which have been bought by other legal entities. I don't see a problem with making most of the apology clear as a clarification. After all that which is factually true should be agreed as being factually true.

However, given that we have not alleged that Mr Knight Adams bought land as a spoiling tactic I don't see why it should be thought of as an apology. Similarly in that situation you would not expect us to pay legal costs or indeed make a donation to charity.

I am on holiday at the moment and having some difficulty in putting this all together.

From Jennifer McDermott

To: John Hemming

Sent: Thursday, July 30, 2009 1:18 PM

Subject: RE: Jeremy Knight Adams

Without prejudice

While the leaflet does not name our client, anyone reading it would know that the person who is allegedly delaying the development and guilty of spoiling tactics is our client. He has owned plots at the site for over 20 years but he did not purchase them as your leaflet wrongly suggests "with the intention of delaying the Tesco development".

There are no other plots of land which have been bought by other legal entities. There is some land the subject of the CPO where the owners are unknown, so they cannot be involved in any spoiling tactics. It would be abundantly clear to any reader of the leaflet that this accusation is being levelled at our client.

In the circumstances he requires all the remedies set out in our letter yesterday, including an unequivocal apology, payment of damages and costs. If these cannot be agreed today, our instructions are to issue proceedings without further notice to you.

From: John Hemming

To: Jennifer McDermott

Sent: Thursday, July 30, 2009 2:41 PM

Subject: Re: Jeremy Knight Adams

Our understanding is that Sainsbury's and Asda also own plots of land.

From: Jennifer McDermott

To: John Hemming

Sent: Thursday, July 30, 2009 2:49 PM

Subject: RE: Jeremy Knight Adams

Our understanding is that Tesco has already acquired the land previously owned by Sainsbury's and Asda.

From: Jennifer McDermott

To: John Hemming

Sent: Thursday, July 30, 2009 3:46 PM

Subject: RE: Jeremy Knight Adams

Without prejudice

Thank you for your email. As per my voicemail, I cannot at the moment contact my client. I propose to recommend that he accepts your apology subject to adding the words "nor is he using any spoiling tactics" after "He did not purchase the plots to delay the Tesco development" and you adding at the end "and we have agreed to pay damages to a charity of his choice."

The urgency is not only the resumption of the public enquiry but also because you circulated the leaflet to hundreds of people in Yardley and the apology must be circulated to them as soon as possible to prevent continuing damage to my client's valuable reputation.

In addition we will need an agreement as to the amount of damages payable to a charity—I suggest £10,000; that you will pay my costs ; and also an undertaking not to repeat these or any similar defamatory allegations, failing which my instructions are to issue proceedings which will only serve to escalate the costs which you will have to pay.

I look forward to hearing from you.

From: John Hemming

To: Jennifer McDermott

Sent: Thursday, July 30, 2009 6:07 PM

Subject: Re: Jeremy Knight Adams

We are gradually getting together more information about this.

I am entirely happy to apologise for any confusion indicating that Mr Knight Adams bought the land as a spoiler. That is clearly untrue, but I do not think it is indicated by the words in the leaflet. Indeed we have stopped delivering the leaflet and will pulp and reprint the text prior to delivery of Acocks Green to make a clear distinction between Mr Knight Adams and those people who brought land as spoilers.

I have obtained more information about the compulsory purchase proceedings. They do not only involve your clients. There are other identified organisations who are part of the compulsory purchase proceedings.

Hence in respect of the article which states: "During July, a public enquiry is taking / has taken place into compulsory purchase of land needed by Tesco for their supermarket at the Swan. A few small plots have been purchased by people with the intention of delaying the Tesco development. We are appalled at these 'spoiling' tactics and have supported Tescos at the enquiry." a) In terms of identification we contend that this article refers generally to plots of land which were purchased to delay the development. This does not include Mr Knight Adams. b) In terms of identification we contend that this article does not refer only to plots of land which are part of the Compulsory Purchase Enquiry. However, if it were to be construed as such then the Enquiry does not only include Mr Knight Adams, but also other people and hence does not identify him. c) Thirdly we are entirely happy to make clear that Mr Knight Adams bought his land some 20 years ago and apologise for any confusion.

I would, however, make the point that in opposing the compulsory purchase orders Mr Knight Adams is acting in a manner which can be described as spoiling tactics as they act to delay the development. I would further make the point that it would be "fair comment" to state that "We are appalled at the spoiling tactic of opposing the compulsory purchase orders for which Mr Knight Adams is personally responsible."

This is relevant because in any proceedings this would be part of the associated publicity.

Hence obviously I would not agree the addition of the words "nor is he using any spoiling tactics" simply because we believe that in opposing the compulsory purchase order that he is using spoiling tactics. That may not be his intention, but the tactics are acting to spoil the agreed development hence it is fair comment to describe them as such.

Furthermore we are unwilling to pay damages or indeed your costs. Hence I will not agree to pay costs nor will I agree to the words about payment to charity being added.

Let me be entirely clear I do not think the word "apology" is needed, but have absolutely no hesitation in making it clear that we have not alleged or intended to allege that Mr Knight Adams bought land to spoil the development. Nor have we alleged in the leaflet that he is "using spoiling tactics". We do believe, however, that he is "using spoiling tactics" in opposing the CPO.

However, in the interests of bringing this matter to a rapid conclusion I am willing personally to apologise from any confusion that arises from the leaflet and to make it clear that Mr Knight Adams is not being referred to in respect of buying land to delay the development.

From: Jennifer McDermott

To: John Hemming

Sent: Thursday, July 30, 2009 6:18 PM

Subject: Re: Jeremy Knight Adams

Thank you. I will take instructions but I expect that I will be instructing counsel to settle proceedings tomorrow.

From: John Hemming

To: Jennifer McDermott

Sent: Thursday, July 30, 2009 6:26 PM

Subject: Re: Jeremy Knight Adams

I would make the point that the pre-action protocol for defamation normally requires a 14 day response period during which we can obtain formal legal advice and that any additional costs that arise from your excessive haste (given that we have ceased delivering the leaflet) are costs which I would expect your client to be responsible for in the remote situation that he initiates proceedings and also wins the case.

I would further refer you to the established European Jurisprudence in respect of Article 10 which offer greater protection to political comment—which this leaflet clearly is.

Could I suggest, therefore, that if your client is unhappy with our initial open response that then we are given sufficient time in which to consult our own advisors. Article 6 requires for equality of arms that this is the case.

From: Jennifer McDermott

To: John Hemming

Sent: Thursday, July 30, 2009 7:29 PM

Subject: Re: Jeremy Knight Adams

Without predjudice

Thank you. I am aware of the relevant ECHR jurisprudence. I am still taking my client's instructions and will come back to you as soon as I can. It would meanwhile be helpful to know how quickly, if we can agree the apology, it could be circulated. Clearly a special issue leaflet would have to be sent out asap as to wait for the next monthly leaflet would be too long.

From: John Hemming

To: Jennifer McDermott

Sent: Friday, July 31, 2009 12:15 AM

Subject: Re: Jeremy Knight Adams

A new form of words can start to be circulated very soon, but it will take our usual 6 weekly cycle to get this around the constituency.

It does, however, depend upon how reasonable your client is.

In essence for settling this without any payments or legal action I am offering the word "apology" when it is not really due.

From: John Hemming

To: Jennifer McDermott

Sent: Monday, August 03, 2009 12:31 PM

Subject: Re: Jeremy Knight Adams

The new text as drafted is

During July, a public enquiry has taken place into compulsory purchase of land needed by Tesco for their supermarket at The Swan.

We are keen to see these outstanding issues resolved and an end to the derelict nature of the area.

___________________

I cannot see that your client would have any concerns about this. On the other hand I do not believe that he should have any concerns about the original text. However, I am sending the new phrase to you.

It would be useful to put this issue to bed. We are incurring additional costs at the request of your client.

From Jennifer McDermott

To: John Hemming

Sent: Monday, August 03, 2009 2:07 PM

Subject: RE: Jeremy Knight Adams

This new text obviously goes no way to addressing the concerns raised by my client about your seriously defamatory and maliciously false leaflet. I will take instructions.

From: John Hemming

To: Jennifer McDermott

Sent: Monday, August 03, 2009 2:23 PM

Subject: Re: Jeremy Knight Adams

The new text is for a leaflet that has not been delivered. It is an alternative to the text your client has been concerned about (which is neither false nor defamatory).

I have said I am happy to clarify the situation, but we do need to get on with the rest of the leaflet drop even with an alternative text.

From: John Hemming

To: Jennifer McDermott

Sent: Monday, August 03, 2009 2:42 PM

Subject: Re: Jeremy Knight Adams

For the avoidance of doubt. There are two issues

1. Is the original leaflet with the original text. Your client, in my view wrongly, has taken offence to this leaflet. We are willing to apologise and clarify these comments in a later leaflet. This issue has not as yet been resolved and I am awaiting a response from you.

2. The second issue relates to the fact that the original leaflet has not been delivered to everyone that it was intended to be delivered to. At the request of your client we have come out with an alternative wording for the wording that he has taken offence to. It is that wording that I have referred to you.

This alternative wording applies where the original leaflet that has concerned your client has not been delivered.

I would make a further point that we have now obtained information about what your client has done at both the Maypole and in Worcester. In both of those cases I would contend that it could be argued that tactics leading to delay—viz spoiling tactics have been used.

I make the point that in the unlikely event of any proceedings occurring we would also make the point that your client has a track record of spoiling tactics.

From: John Hemming

To: Jennifer McDermott

Sent: Monday, August 03, 2009 3:01 PM

Subject: Re: Jeremy Knight Adams

I make one further point in respect of your client. I consider that his behaviour in respect of the development at The Swan has indeed been a spoiling tactic. I do intend, therefore, making reference to this at my earliest possible opportunity in a speech in the House of Commons and referring to the other situations which we are aware of when he has acted in a manner to delay developments.

Be aware that his behaviour (through yourself) in respect of these threatened proceedings will also be part of any reference to bullying tactics and the way in which he attempts to gag opponents will also be part of my speech.

I personally spent time to meet him and talk about the development. I was very clear at the time that I would not support anything that further delayed this project. I am quite unhappy about the situation.

From: John Hemming

To: Jennifer McDermott

Sent: Monday, August 03, 2009 3:37 PM

Subject: Re: Jeremy Knight Adams

Further to my various emails I am going to assume that your client has no concerns about the new draft and authorise my team to print and distribute the new version of the leaflet where the old one was not distributed.

The issue of resolution of the initial issue remains. However, we do wish to continue our normal activities having modified the phrase from one which in my view was accurate to one which is blander and which I don't think your client can find any problems with.

This leaves us to look at the issue as to how we resolve the initial matter to both sides reasonable satisfaction.

From: Jennifer McDermott

To: John Hemming

Sent: Monday, August 03, 2009 3:44 PM

Subject: RE: Jeremy Knight Adams

Please do not make that assumption. I am trying to contact my client and I will revert to you as soon as I can.

From John Hemming

To: Jennifer McDermott

Sent: Monday, August 03, 2009 3:54 PM

Subject: Re: Jeremy Knight Adams

I will put things on hold until tomorrow morning at 10am.

Your client cannot really expect to have editorial control over our leaflets. I am merely trying to deal with this to be polite and to ensure that once we put this issue to bed it stays there.

From: Jennifer McDermott

To: John Hemming

Sent: Tuesday, August 04, 2009 11:18 AM

Subject: RE: Jeremy Knight Adams

As the alternative wording for the leaflet re the Swan development is not defamatory of our client, he agrees that it is a matter for you. We merely note, however, that you describe the development as Tesco's supermarket, when in fact our client's complaint is that there should, in the public interest, be a comprehensive redevelopment at Yardley to provide a new district centre providing a proper mix of appropriate uses and built to proper standards.

We shall revert to you shortly regarding the offending text in the original leaflet regarding which our client's rights are fully reserved.

From: Jennifer McDermott

To: John Hemming

Sent: Tuesday, August 04, 2009 5:51 PM

Subject: Private and Confidential

Thank you for your various e-mails yesterday. My client's response to the points which you have raised in these and earlier correspondence is as follows.

1. The original leaflet and offending text

It is abundantly clear that the offending text referred to, and would have been understood by those reading it to refer to, our client. You have alleged that the compulsory purchase order (CPO) proceedings involve other parties. However, it is clear from Councillor David Osborne's evidence given to the public inquiry on 14 July 2009 that he was not aware of any other parties who owned plots or who were objecting to Tesco's proposals and presenting alternative proposals other than our client. Asda and Sainsburys had already sold their land to Tesco. It is clear from the context of the offending text that you were only referring to plots of land which are part of the CPO and only the plots owned by our client. Even though he was not specifically named, he was clearly identifiable to the thousands of people to whom you distributed your defamatory and maliciously false leaflet.

You were clearly wrong to say that our client purchased his plots with the intention of delaying the Tesco development, as you now admit. Moreover, we do not agree that a landowner objecting to a CPO of his land and who has made very serious alternative proposals for redevelopment can he be guilty of "spoiling tactics" and this defamatory and maliciously false allegation is strongly objected to by our client.

In order to settle this matter we, therefore, require an apology in respect of both serious allegations plus payment of our client's costs, a substantial payment to a charity of his choice and an undertaking not to repeat the allegations or any similar allegations, particularly in Parliament.

Your threat to make a statement in the House of Commons referring to our client's alleged "spoiling tactics" in this and other situations and that our client's threatened proceedings amount to "bullying and an attempt to gag opponents" is tantamount to blackmail. These allegations are untrue as our client is only trying to put right a serious wrong to his reputation. We note that you would only make these allegations under the cover of parliamentary privilege. My client objects very strongly to you doing this and would ensure, via other sources, that the House of Commons were fully appraised of the true situation and not misled.

We deny that our client has been involved in any "spoiling tactics" at the Swan, Maypole or in Worcester. He certainly does not have, as you claim, a track record of "spoiling tactics". By making such allegations you are clearly aggravating the damages which you will now have to pay to a charity of our client's choice.

You say that you have spent time meeting my client and talking about the Swan development. Notwithstanding, it seems that you have failed to understand what my client is trying to achieve.

All that my client wants is to vindicate his reputation as swiftly as possible. However, if a suitable correction and apology, costs, damages and an undertaking not to repeat these or any similar defamatory and maliciously false allegations cannot swiftly be agreed, he will have no alternative but to issue proceedings.

We obviously also need to discuss how quickly you can circulate your apology around the constituency. Clearly this will have to be done much more quickly than your usual six weekly cycle in order to alleviate the continuing harm to our client's reputation.

Meanwhile, could you please inform us, as we requested in our original letter of 29 July 2009, how many copies of the offending text were distributed; who wrote the offending text; who authorised its publication; who published it; and the date of issue.

2. Alternative wording to those to whom the original leaflet was not delivered

As previously indicated today, our client has no objection for you to replace the offending text with the new text set out in your e-mail of yesterday's date sent at 12.32pm.

From: John Hemming

To: ***; Jennifer McDermott

Sent: Tuesday, August 04, 2009 6:11 PM

Subject: Re: Private and Confidential

You are now indicating that unless I give an undertaking not to make comments about your client in parliament that you will issue proceedings against me.

Are you really serious about this?

Obviously the pre-action protocol still needs to be adhered to.

From: John Hemming

To: Jennifer McDermott

Sent: Wednesday, August 05, 2009 10:35 AM

Subject: Jeremy Knight Adams

Further to my previous email and in connection with my intent to raise the spoiling and delaying tactics of your client in parliament with a view to identifying how the laws should be reviewed to prevent this behaviour.

I am in the process of collating a dossier relating to other situations (eg Cheltenham) where we have criticisms as to what he has been doing. Would your client wish that we put those criticisms to him via yourselves before making them so that he has an opportunity to respond or not?

I note in your previous email that you expressed the rather strange view that comments I make to you as his legal advisor form part of any potential libel action. Obviously if I am providing comments to you for him to be able to express his view that would be expected to have conditional privilege. Before I provide that information, therefore, I would wish an undertaking that you will not aim to make use of our communications as bases for additional proceedings as that would be a ludicrous constraint on communication otherwise.

I additionally make the point that this matter has now been intimately linked by yourselves with my proposed speech in parliament. As such the whole action now falls within the ambit of Article IX of the Bill of Rights. Any action taken against me or any further threats to me or my colleagues will additionally be taken as being threats against me as part of aiming to prevent me from speaking in parliament about the behaviour of your client or indeed to penalise me for that activity.

I would make the point that should be referred to anyone who works with you on this matter that precedent indicates that anyone responsible for settling any claim form in relation to this action as well as yourselves will also be taking action which is part of aiming to prevent me from speaking in parliament about the behaviour of your client or indeed penalising me for such activity.

From: John Hemming

To: Margaret Robertson

Sent: Wednesday, August 05, 2009 11:42 AM

Subject: Fw: Private and Confidential

I write to you as MD of Withers UK.

I forward a copy of an email to me by someone working for Withers on behalf of one of your clients.

I am the Member of Parliament for Birmingham (Yardley). I (or one of my companies) may also be one of your clients which I mention just in case it has additional relevance -which I don't think it does, however.

Most importantly, however, within the email it says:

"In order to settle this matter we, therefore, require an apology in respect of both serious allegations plus payment of our client's costs, a substantial payment to a charity of his choice and an undertaking not to repeat the allegations or any similar allegations, particularly in Parliament".

This raises an interesting constitutional point and I felt that you might wish a "heads up" on the fact that this is going on. It is not something I can take lightly.

From: John Hemming

To: ***; Jennifer McDermott

Sent: Wednesday, August 05, 2009 11:54 AM

Subject: Re: Private and Confidential

I have contacted your Managing Director about this issue.

My next step if there is no sensible response will be to contact The Speaker's Counsel about this issue.

From: Jennifer McDermott

To: John Hemming; ***; Cc: Margaret Robertson; ***; ***

Sent: Wednesday, August 05, 2009 12:12 PM

Subject: RE: Private and Confidential

I have informed my Managing Partner of the position and I am drafting a full response to your email.

In a libel case it is normal to ask those responsible for the offending publication not to repeat the defamatory or any similar allegations. As you threatened to damage my client's reputation by making defamatory speeches about him in Parliament, naturally he could not settle the libel action without an assurance that you would not do this. Why you are now threatening to drag me into the situation, I fail to understand. Also the dossier which you are preparing seems as though it will only aggravate the situation further.

Please await my full response to your last email before you take any further steps.

From: John Hemming

To: Jennifer McDermott; ***; Margaret Robertson

Sent: Wednesday, August 05, 2009 12:45 PM

Subject: Re: Private and Confidential

The first point about this is that I have no intention of making any defamatory speech. I intend to be entirely accurate.

Whatever Mr Knight Adams intentions are his actions have been to delay the development work at The Swan.

I am entirely happy to agree the facts of situations with Mr Knight Adams.

However, making a threat of legal action relating to statements in the House of Commons raises serious constitutional questions. Mr Knight Adams needs to deal with those serious issues as do you and any other individuals involved in this process.

As it currently stands now you have brought parliamentary proceedings into the issue. Therefore, Article IX of the Bill of Rights takes precedence. I am interested to find out what your substantive response is to these issues before I decide how to make the matter further.

If you feel it will take a while longer to respond to the substantive issues please indicate as such to me. I am quite happy to wait a few days for you to get yourselves properly informed as to UK constitutional law.

From: Jennifer McDermott

To: John Hemming; ***; ***; ***; Cc: Margaret Robertson

Sent: Wednesday, August 05, 2009 1:08 PM

Subject: RE: Private and Confidential

Please be assured that you will receive a full response very shortly.

From: John Hemming

To: Jennifer McDermott; ***; Cc: Margaret Robertson

Sent: Thursday, August 06, 2009 4:04 PM

Subject: Re: Private and Confidential

Would you mind telling me how long "very shortly" is? I am not in a massive rush, but if this is going to go any further I do need to inform the parliamentary authorities so that they can get involved. I am happy to leave it until Monday if that is something you would wish.

I have been keeping some records of how much time I have been spending on this issue which is an issue to be resolved at some stage. As you probably know the constitutional law is designed to prevent Members of Parliament from having to deal with litigation about how they do their job—which is why the legal firms that get involved are treated as being as "guilty" as any clients on behalf of whom they are acting. It is, however, taking me some time to deal with this a matter which also needs to be taken into account in terms of settling the issue.

My belief is that the court would now strike out any action relating to this matter. However, I will also have to instruct counsel if you go any further and that will be additional costs that I will be looking for either your client or Withers to pay.

Obviously I won't have to pay for any of the costs incurred by the parliamentary authorities, but I would assume that they would be looking for their costs to be covered either by your client or by Withers.

As you are aware this is an issue of considerable public importance relating as it does in an attempt to use legal devices to interfere in parliamentary matters. That goes strictly against the concept of separation of powers. You are already aware that I have raised my concerns about this publicly. You may wish to get your ducks in a row before this becomes of national interest.

Unless you indicate otherwise I will assume that the clock is agreed to have stopped for this week as far as the Pre-Action protocol for defamation is concerned. If I end up having to incur costs for legal advice (beyond the costs of my own time—you may be aware that although my formal qualifications are in Nuclear and Atomic Physics I have five cases in the Strasbourg courts at the moment—where I have assisted litigants in person.) then I reserve the right to make a Part 8 application for those costs to be covered by either your client or yourselves.

From John Hemming

To: Jennifer McDermott; ***; Cc: Margaret Robertson

Sent: Saturday, August 08, 2009 1:14 PM

Subject: A further and additional ethical issue

Further to this I have given the issue some additional consideration.

In threatening action against the Yardley Liberal Democrats (an unincorporated association) a letter was written initially to Councillors David Osborne and Paul Tilsley.

David Osborne is the Chairman of the Licensing Committee and also was a witness giving evidence at the Compulsory Purchase Enquiry. Paul Tilsley is Deputy Leader of Birmingham City Council and has responsibility for Land Issues as an executive Cabinet Member within his portfolio. Obviously the action did directly involve matters which were being considered by the Inquiry as these were within the words that we were being pressurised to agree.

The area of law here is quite complex involving as it does pressurising witnesses and a form of legal action for matters which were in essence part of the enquiry—which was being reported on in the newsletter complained about. It also involves local government law.

I remember conversations with Jennifer McDermott where the urgency related specifically to the fact that the enquiry was at that time continuing.

I have not had a response so far on the matters concerned and will be contacting the parliamentary authorities in respect of the matters of privilege on Monday. I would be interested in a response from Withers about the question as to the propriety of threatening and essentially initiating legal action against parties to an enquiry that was active at that time.

It will take me some research to look at those issues. Again I don't think they are issues that should be taken lightly. Similarly they could readily imply some form of culpability on the part of the legal advisors as well as the client. I make that point at this stage because it is a matter I am giving consideration.

From: Jennifer McDermott

To: John Hemming

Sent: Saturday, August 08, 2009 1:46 PM

Subject: Re: A further and additional ethical issue

I will be responding on Monday, as will my managing partner. I hoped we could reply yesterday but my client was at the resumed inquiry and I could not speak to him. I strongly recommend that you wait until Monday to consider our response as your penultimate email suggested that you would.

From: Jennifer McDermott

To: John Hemming

Sent: Tuesday, August 11, 2009 11:26 AM

Subject: Private and Confidential

Thank you for your emails of 4, 5, 6 and 8 August 2009.

May we deal first with the question of the dossier which you are currently preparing. Thank you for offering to show it to our client, especially since there is a risk it may contain inaccuracies and risk being defamatory. Our client believes that it would, therefore, be in his interest and yours to let you have his comments on the dossier before you publish it to any third parties.

However, we have to say that we consider your reference to our client's involvement in other developments to be an attempt to distract attention from the main issue; namely the defamatory and maliciously false leaflet the Yardley Liberal Democrats have published and whether you propose to accept our terms for disposing of the matter without the need to commence proceedings.

Our client, as is normal in such matters, would be prepared to settle if a suitable correction and apology, costs, damages and an undertaking not to repeat these or any similar defamatory and maliciously false allegations could be swiftly agreed.

In your email of 3 August 2009 (15.02pm) you said that you intended to make a reference to our client's alleged "spoiling tactics" in relation to the Swan Development and to his alleged "bullying tactics and the way in which he attempts to gag opponents" at the earliest possible opportunity in the House of Commons.

Clearly, if you did this, you would be repeating the defamatory allegations but you would be protected by Parliamentary privilege. Therefore, if our client is to settle his potential proceedings against you, he would prefer you to agree not to repeat the allegations in Parliament or elsewhere and to honour that agreement whether or not it is legally enforceable.

We wish to make it clear, however, that if you were to defame him in Parliament, whether in relation to Yardley or any other matter, Mr Knight-Adams would consider taking steps to draw parliamentary and public attention to your conduct. We do not consider this to be in any way seeking to limit what you choose to say in Parliament. We are merely, out of courtesy to you, giving you fair notice of the action Mr Knight-Adams would consider taking if it were appropriate and lawful to do so.

It follows that in our opinion, neither our client nor this firm is acting in a manner which breaches Parliamentary Privilege or requires the Speaker's Counsel to be involved.

We became aware on Friday that you had already raised this matter with the Birmingham Post, which is surprising as you did not have the benefit of this e-mail. Our client responded to Paul Dale's enquiries to him and we have now seen his article "Yardley MP faces legal action over leaflet's Tesco land claims" which unfortunately repeats your incorrect allegation that Mr Knight-Adams is trying to "gag an MP". If you have spoken to any other representatives of the media could you please let us know?

We would like to think that you will not aggravate further the damage already suffered by our client but your rush to speak to the media gives us cause for concern. We are also concerned that on your Web Blog you are aggravating the situation by stating:—

"When parliament returns I intend doing a speech about Jeremy Knight Adams and how he is acting in a way which delays the development at The Swan in Yardley. I would be interested in having any other information about his involvement in other developments as it will assist in looking at the law on Compulsory Purchase and what changes may be needed."

In so far as this would be understood to be a repetition of the allegation that our client is involved in improper delaying tactics it amounts to conduct which aggravates the damages payable. As Nourse L. J. Said in Sutcliffe v Pressdram Limited [1991] 1 Q.B. 153 CA at 184:

"The conduct of a defendant which may often be regarded as aggravating the injury to the plaintiff's, feelings so as to support a claim for "aggravated" damages includes a failure to make any or any sufficient apology and withdrawal; a repetition of the libel; conduct calculated to deter the claimant from proceeding; persistence, by way of a prolonged or hostile cross-examination of the claimant, or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract wide publicity; and persecution of the plaintiff by other means."

We would, therefore, ask you to remove this material from your Web Blog and refrain from speaking to the media until you have considered this e-mail carefully.

In relation to your allegation that Mr Knight-Adams is delaying the Yardley development, it appears that you do not know the true facts. The record shows clearly that the scheme to which the CPO relates did not receive planning permission until May 2008. Prior to that date Tesco had spent eight years finalising the scheme which it wished to pursue. Mr Knight-Adams cannot be blamed in any way for the delay over that period. Consequently Mr Knight-Adams' action has only delayed matters since the CPO was made in October 2008, by virtue of him choosing to object to the Order. This objection has been pursued because Mr Knight-Adams received clear advice from independent professional consultants that the Tesco scheme is completely unacceptable having regard to the proposed mix of uses, its urban design and its architecture. His objection, therefore, relates to a matter of exceptional public interest.

In your email of Saturday 8 August (13:15 pm) you incorrectly allege that by initially contacting Councillor Osborne about the defamatory leaflet we were seeking improperly to put pressure on him in his capacity as a person who had made an oral representation to the inquiry. That is patently untrue. We were responding, quite properly, to what the Yardley Liberal Democrats and Councillor Osborne had stated in the defamatory and maliciously false leaflet in which Councillor Osborne was quoted. We explained (Mrs McDermott's conversation with you on 30 July 2009) that the primary reason for wanting an urgent correction and apology, plus the other remedies, was to vindicate Mr Knight-Adams' reputation as quickly as possible, as well as its possible impact on the continuing inquiry. Further Councillor Osborne had already made his representation by that time so that it cannot be said to have been an attempt to influence its content.

You have referred to our need to adhere to the Pre-Action Protocol for Defamation. We have complied with all the letter of claim requirements and we hope that you can respond as soon as possible. Please also bear in mind, if you still wish to prepare your dossier, of the need to "act reasonably to keep costs proportionate to the nature and gravity of the case at the stage the complaint has reached."

There is in our view no prospect of any libel claim regarding the leaflet being struck out. We suggest, in all the circumstances, that you take legal advice from a libel specialist as soon as you can to prevent further misunderstanding and prejudice to your position including placing you at risk of adverse costs orders.

From: John Hemming

To: ***; Jennifer McDermott

Sent: Tuesday, August 11, 2009 11:35 AM

Subject: Re: Private and Confidential

There are now three distinct threads to this issue.

a) A continuing threat of libel proceedings.

b) Various contempts of parliament -for which I need to prepare documentation for the parliamentary authorities

c) An attempt to pervert the course of justice—for which I need to prepare documentation for the DPP

Each of these requires that I assemble various documentation for the appropriate processes. That I will now do.

From: Margaret Robertson

To: John Hemming

Sent: Tuesday, August 11, 2009 12:08 PM

Subject: Private & Confidential

Thank you for your email of 5 August 2009 forwarding to me an email sent to you on 4 August by my partner, Jennifer McDermott. She is our Head of Media and Public Law.

I have seen Jennifer McDermott's reply to your emails to her (attached) and there is nothing I can add. She has made it clear that you, and any other Liberal Democrats involved in the publication of the offending leaflet, can either settle with our client or be sued for defamation and malicious falsehood. Part of the settlement package, as is normal, would be an assurance that you, and any others involved, would not repeat the offending material, whether in Parliament or elsewhere. It is a matter for you, whether you settle or continue your campaign. Naturally our client would prefer the former.

I cannot, however, see why you feel any 'interesting constitutional point' is raised as Jennifer McDermott has confirmed that you cannot be sued for anything you say in Parliament. You can, however, be sued for the offending leaflet and any defamatory or maliciously false statements made outside of Parliament.

I have to say that I am surprised at your complaint against Jennifer McDermott, who is a very experienced Media and Constitutional Law practitioner. She and those working for her on the case are acting in a completely professional manner.

I hope that this makes the position clear.

From: John Hemming

To: Margaret Robertson

Sent: Tuesday, August 11, 2009 2:48 PM

Subject: Re: Private & Confidential

I note your email.

From: John Hemming

To: Jennifer McDermott

Sent: Thursday, August 13, 2009 3:13 PM

Subject: Jeremy Knight Adams

I am a bit stuck at the moment because BT have taken down my communication systems. They are trying to sort this out, but that has put on hold resolving the wider issues relating to our matter of dispute.

In the mean time, however, we do need to prepare our next leaflet. It seems entirely reasonable and fair to allow Mr Knight Adams to have published in that leaflet a letter or statement from him. Is that something he would wish? Furthermore do you have a form of words that he would like published?

From: John Hemming

To; Jennifer McDermott

Sent: Friday, August 14, 2009 9:27 AM

Subject: Re: Jeremy Knight Adams

Further on this issue. I am happy to formally issue the following statement and intend to do so (on my weblog) unless you ask me not to or indeed suggest an alternative wording.

We recently circulated a leaflet in the Yardley District in which we referred to the proposed development by Tesco at the Swan. We said that a few small plots had been purchased by people with the intention of delaying the Tesco development and that we are appalled at these "spoiling" tactics and have supported Tescos at the enquiry. We have subsequently received a complaint from Mr Jeremy Knight-Adams that he believes the leaflet was referring to him. We did not intend to refer to him in the purchasing of the plots.

To clear up any inadvertent confusion, we understand that Mr Knight-Adams has owned plots at the site for over 20 years and he did not therefore purchase these plots with the intention of delaying the Tesco development. We are therefore also happy to confirm that Mr Knight-Adams has not been involved in spoiling tactics in this respect. The position is that Mr Knight-Adams objected to Compulsory Purchase Orders in respect of the Tesco development which have now been heard at the public enquiry. We await the outcome of that process."

From: Jennifer McDermott

To: John Hemming

Sent: Friday, August 21, 2009 10:34 AM

Subject: Private and Confidential [faked-from]

We refer to our e-mail of 13 August 2009. Could you please let us have your response to the matters raised and in particular your Pre-Action Protocol for Defamation Response to our letter before action, which is now overdue.

From: John Hemming

To; Jennifer McDermott

Sent: Friday, August 21, 2009 1:39 PM

Subject: Re: Jeremy Knight Adams

================== PRE ACTION PROTOCOL RESPONSE ====================

Jeremy Adams Knight v Yardley Liberal Democrats

Formal Pre-Action Protocol Letter Defendant's Response

Before dealing with the claim it is worth highlighting the nature of the comments complained about. The Yardley Liberal Democrats distribute a newsletter to their constituents approximately every 6 weeks. This deals with matters of public concern in the area.

The item concerned was a report of the history over 12 years and position taken by the party in respect of the Inquiry into compulsory purchase orders in respect of the development at The Swan, Yardley. Although only Councillor David Osborne has acted as a witness at the Inquiry other locally elected politicians have also provided submissions to the Inquiry. It is also important to note that Cllr Osborne was speaking on behalf of his colleagues with their permission and informed the Inquiry as such.

The text read: "During July, a public enquiry is taking / has taken place into compulsory purchase of land needed by Tesco for their supermarket at the Swan. A few small plots have been purchased by people with the intention of delaying the Tesco development. We are appalled at these 'spoiling' tactics and have supported Tescos at the enquiry."

This particular development has taken a number of years to come to fruition and plots were bought by Sainsburys as well as Asda. The author of this letter on reading the phrase complained about.took the view that in saying "A few small plots have been purchased by people with the intention of delaying the Tesco development. We are appalled at these 'spoiling' tactics " it was referring to Asda and Sainsburys and not referring to your client. I have since spoken to those involved in the production of the leaflet and they have confirmed that your client was not in their minds when the leaflet was produced. It was an explanation of the history over 12 years and we accept that your client did not cause delay during most of those 12 years. Hence we have been entirely happy to confirm that we were not referring to your client in this leaflet and have done so publicly on my Web Log.

However, the behaviour of your client both in opposing the compulsory purchase orders and moreso in the way in which he has tried to get us to repudiate our position relating to the inquiry has caused us great concern. The formal itemised response follows.

The Defendant, Yardley Liberal Democrats standing in the names of Honorary Alderman John Alexander Melvin Hemming MA(Oxon), FRSA, MP, Chairman of the Birmingham Liberal Democrat Group and Member of Parliament for Yardley, Councillor David Osborne, Chairman of the Licensing Committee of Birmingham City Council and Councillor Paul Tilsley Deputy Leader of Birmingham City Council reject the claimants claim on the following bases:

1. The claimant has introduced parliamentary proceedings to the claim and under Article IX of the 1688 Bill of Rights the claim is now exempt from consideration by the courts and is a Contempt of Parliament in that threats are being made against a Member of Parliament in an attempt to deter him from speaking in The House about an issue of constituency concern.

2. Furthermore and alternatively, the claim relates to a report in the local newsletter of proceedings in a Compulsory Purchase Inquiry and the proceedings are against the Liberal Democrats who were witnesses at that inquiry. Although the report is not of the evidence at the inquiry and is not intended to and does not identify Jeremy Knight Adams or make critical comments relating to him, the claimant has been attempting to broaden the nature of the claim to pressurise this Liberal Democrats into contradicting the evidence given by them to the inquiry. This is an attempt to pervert the course of justice and an abuse of process.

3. The words complained about are as follows: "During July, a public enquiry is taking / has taken place into compulsory purchase of land needed by Tesco for their supermarket at the Swan. A few small plots have been purchased by people with the intention of delaying the Tesco development. We are appalled at these 'spoiling' tactics and have supported Tescos at the enquiry."

4. Furthermore and alternatively the claimant is not intended to be identified as a person who purchased plots "with the intention of delaying the Tesco Development".

5. Furthermore and alternatively the claimant is not identified as a person who purchased plots "with the intention of delaying the Tesco Development".

6. Furthermore and alternatively the statement does not identify landowners who were part of the compulsory process inquiry, but even if it does it does not indicate that those landowners purchased plots "with the intention of delaying the Tesco Development"

7. Furthermore and alternatively there are a number of landowners whose land is part of the inquiry and this does not identify the claimant.

8. Furthermore and alternatively the only uniqueness about the claimant is that it is his objection that has lead to the inquiry. His objection is causing a delay to the project.

9. Furthermore and alternatively the statement does not say that delaying the project by opposing the inquiry is "spoiling tactics". The claimant is, therefore, not being criticised by the article as being involved in "spoiling tactics".

10.Furthermore and alternatively the claimant is delaying the project by opposing the compulsory purchase orders. It would in the event that the claimant were identified by the statement be "fair comment" to describe this as "spoiling tactics".

11.Furthermore and alternatively the number of people who received the leaflet who can identify the claimant as having any involvement was very low and any damages payable would be token.

12.Furthermore and alternatively although the defendant has been happy to clarify that the claimant did not buy land to delay the development the claimant has been unwilling to agree actions to protect what little reputation he has as he was pressing for excessive damages of a five figure sum and excessive costs which could not be agreed by the unincorporated association which is the Yardley Liberal Democrats as the party Branch would have been wiped out financially by such a claim.

13.Furthermore and alternatively the claimant has involved costs in this issue that are completely disproportionate to the issue as a simple letter from the claimant to the defendant could have elicited the willingness to clarify the situation. This was not tried. Hence any costs incurred by the claimant are wasted costs.

Meaning of Statement

"During July, a public enquiry is taking / has taken place into compulsory purchase of land needed by Tesco for their supermarket at the Swan."—simple factual statement.

"A few small plots have been purchased by people with the intention of delaying the Tesco development."—a true statement as this did happen with Asda and Sainsburys.

"We are appalled at these 'spoiling' tactics"—refers to buying the land.

"and have supported Tescos at the enquiry."—simple factual statement.

Settlement

The defendant has made a statement clarifying the situation and will also allow the claimant to have a letter published in our newsletter. The defendant is also happy to consider alternative routes to dispute resolution. We are happy to continue discussion and negotiation, would be willing for the press complaints commission to review this, would be willing to look at neutral mediation and would be happy to consider an independent assessment.

====================================================================

From,: John Hemming

To: Tamsin Turk

Cc: Jennifer McDermott

Sent: Wednesday, September 09, 2009 8:50 AM

Subject: Jeremy Knight Adams

Further to your scanned letter of yesterday.

1. Please do not believe that merely because I do not refute one of your suggestions that I agree it.

a) The issue of Contempt of Parliament is one where comity applies. It is decided jointly by the courts and the penal authority of the House (the Standards and Privileges Committee). Inherently nothing can be done about this further until the House recommences.

b) We have not at any stage accepted that your client was defamed by the leaflet.

2. The House will recommence in October. To be fair to your client it would be sensible for him to list all of the developments he has been involved in and what his involvement was. That will enable his side of the story to be told in my speech. That will include the Maypole, Cheltenham and Worcester developments as well as the housing association one. I will be doing more research on this as we get closer to the recommencement of parliament, but your client may wish to list out all of the developments he has been involved in so I can ensure that my speech (which is likely to be a 15 minute one) has his input at an early stage. I am willing to send a draft copy of my speech to your client (either directly or via yourselves) if he behaves reasonably and assures me that he will do no more than comment in detail as to its accuracy.

3. We remain willing to consider mediation. To initiate litigation when there is already an agreed clarification would be absurd in the absence of an attempt at mediation.

4. You have at every stage asked for costs and damages in excess of the assets of the Yardley Liberal Democrats (the unincorporated association that you are threatening proceedings against). The attempt to claim such costs clearly acts against Article 10.

5. This could have been resolved by a letter at the start. The agreed statement is not substantially different to the principles which I offered on 30th July 2009.

From: Mr John Hemming

To: Tamsin Turk

Cc: Jennifer McDermott

Sent: Wednesday, September 09, 2009 9:35 AM

Subject: Re: Jeremy Knight Adams

One final point which I have made previously.

On 21st August 2009 I issued the following agreed statement as a clarification/apology http://johnhemming.blogspot.com/2009/08/jeremy-knight-adams-and-re-development_21.html

Jeremy Knight Adams and the re-development of The Swan

In our last newsletter, we referred to "a few small plots have been purchased by people with the intention of delaying the Tesco development" at the Swan Centre Yardley and that "we are appalled by these 'spoiling' tactics". That may have been thought to refer to Mr Jeremy Knight-Adams who is a property developer and has had involvement in a number of major retail developments in the Midlands. He has owned two plots of land within the area for more than 20 years and which are the subject of the Compulsory Purchase Order (CPO) that has been promoted by Birmingham City Council to facilitate a proposed development of the Swan Centre by Tesco Stores Limited. We wish to make it clear that we did not suggest in that leaflet that Mr Knight-Adams has engaged in or is engaging in "spoiling' tactics".

He has explained to us that he objects to the CPO and has employed a team of lawyers and consultants to pursue that objection at the recent Public Inquiry into the CPO and that his objections were motivated by his conviction that the Tesco proposal is entirely unsuitable for Yardley and that the correct solution would be a scheme of the kind explained on his behalf in evidence at the Public Inquiry. Anybody wishing to know the details of that scheme should visit www.srdarchitects.com and a link will be provided to the Swan Yardley project on the home page. We apologise unreservedly for any misunderstanding caused by our leaflet.

Your client does not need our agreement to circulate that to the Post and Mail because it is already published. We, however, are quite happy that he does so.

However, it was published about 2 1/2 weeks ago. The more time your client leaves before giving it to anyone else the less likely he is to get any coverage. His and your lack of action relating to this issue demonstrates to us a lack of a sense of urgency and this implies he does not have any real concern about the alleged libel or indeed his reputation.

From: John Hemming

To: Tamsin Turk

Sent: Monday, September 14, 2009 7:21 PM

Subject: Re: Scanned document fromTamsin Turk

I am happy to look for an amicable settlement based upon no costs or damages being paid.

I have not "revived" the issue of parliamentary privilege. That issue has remained throughout. I have made it very clear that just because I do not contest something in one of your communications I do not necessarily agree it. I see no merit in continuing to repeat the issues once they have been said.

As it currently stands there are some complex issues relating to this including the wider aspects. I have some difficulty understanding why a meeting is required for us to find an amicable settlement. It strikes me that this is part of your clients continuing attempt to get me to support his project. Nothing you have said indicates otherwise. Can I stress that this is a specific point that you need to address in your response.

I take if from your lack of response in respect of my speech in parliament that you do not wish me to consult you or your client on the contents of my speech before making it.

Parliament does have insurers who deal with legal actions against members of parliament. Given that you have not yet removed the threat of litigation the parliamentary authorities (specifically the Clerk of the Journals) is contacting the insurers with a view to them becoming involved in this matter. It may be, therefore, that I will not be in a position to communicate with you in the future and will need to go through lawyers appointed by the insurance company. Obviously those elements which relate to parliamentary privilege would not be dealt with in that way. I am sure you will be aware that I cannot move a motion of reference to the Standards and Privileges Committee until the House recommences in October which is why no such motion has been tabled to date.

It remains, however, that I am unwilling to have a meeting until the threat of a demand for costs or damages is removed.

A settlement will be amicable if and only if the threat of costs or damages is removed. You, therefore, need to indicate the basis upon which such a threat will be removed before such a meeting could occur.

I am not unwilling to meet. I am merely unwilling to meet whilst such a threat is retained.

From: Tamsin Turk

To: John Hemming

Sent: Tuesday, September 29, 2009 3:47 PM

Subject: Not for Publication or Dissemination / Private & Confidential / Without Prejudice save as to Costs -Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry" [faked-from]

Thank you for your e-mails of 14 September 2009. We do not intend to repeat all the issues which have been rehearsed at length in previous correspondence.

The fact remains that you and the other Liberal Democrats involved in the publication of the leaflet defamed our client and as a result he is entitled to the remedies which we have sought, including damages and payment of his costs. You have published an apology on your website and our client is, as agreed, circulating this to the local media. However, the gravity of the harm sustained by our client is considerable and has been significantly aggravated by your accusations of parliamentary contempt and abuse of process. Indeed, even in your last e-mail you continue to aggravate the situation by alleging, falsely, that our client has simply made his defamation complaint in order to persuade you of his position regarding the Yardley development as does your threat to make a speech to Parliament on the matter.

We note that you have not responded to our question about your conflict of interest in making your proposed 15 minute speech to the House of Commons. In this regard, we again refer to the fact that it was not until this matter had been canvassed over a number of days in numerous emails that you then said that you would make a speech asserting that our client's claim was nothing more than bullying tactics in an attempt to "gag opponents". This is clearly a tactic to persuade our client to drop his defamation complaint. He will not do that and indeed has now instructed us to write to the Parliamentary Commissioner for Standards. In our view you should not be making your proposed speech and we expect that the Parliamentary Commissioner will agree.

You say that you may have some insurance. That is clearly a matter for you but our client obviously cannot wait and see whether that transpires although, as we have said on previous occasions, we would welcome your being represented on this matter.

We note also for the record that whilst on the one hand you have said that you wish to mediate this matter you have then said that you would only do so were our client to drop his claim to damages and costs. This is entirely unacceptable.

Our instructions are that, unless the remedies set out in previous correspondence are met, to now instruct without further resort to you Counsel to settle defamation proceedings against you and the others involved in the publication of the offending leaflet and to serve them as soon as possible.


From: John Hemming

To: Tamsin Turk

Sent: Tuesday, September 29, 2009 6:13 PM

Subject: Re: Not for Publication or Dissemination / Private & Confidential / Without Prejudice save as to Costs -Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry" [faked-from]

I have said I would be willing to have the matter mediated. What I have said is that I unwilling to meet your client to have a general discussion. I would, however, be willing to agree to the instruction of a mediator or preferably initially a joint instruction to an independent impartial expert.

This is a different process to that of having a meeting with your client.

Hence I am quite happy to have mediation or look for other solutions.

I would expect the process to be for each side to make a written submission and for a jointly instructed (and jointly paid for) barrister or solicitor experienced in this area of law to give an opinion as to the merits of the case on each side.

That strikes me as a far more effective mechanism for resolving the dispute than issuing proceedings.

Note under 3.8 of the pre-action protcol for defamation proceedings:

"Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of defamation or an individual experienced in the subject matter of the claim)."

I am happy to go down this route or even to go further down the route of mediation itself. In principle I will pay for half of the costs of this joint instruction, but I would obviously wish to agree jointly as to who is instructed and what the expected costs are.

I accept that approximately a month after my issuing of an apology (remembering that we were referring to the actions of Asda and Sainsburys in the leaflet) your client has sent that apology to the media.

As far as the issue of parliamentary proceedings are concerned we are now getting to the point at which parliament recommences. The process for an adjournment debate speech is that I apply to The Speaker for the opportunity to speak. I then find out with a week's notice when there is an opportunity to speak. This may not happen immediately. However, if your client wishes to have an opportunity to comment on my speech beforehand there needs to be an agreed process.

I make no comment about your correspondence with the Parliamentary Commissioner for Standards.

From: Tamsin Turk

To: John Hemming

Sent: Thursday, October 01, 2009 5:22 PM

Subject: Not for Publication or Dissemination / Private & Confidential / Without Prejudice save as to Costs -Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry"

Private & Confidential

Not for Publication or Dissemination

Without Prejudice Save as to Costs

We write further to your email of 29 September 2009.

Please note for the record that our email of the same date was mistakenly referred to as "without prejudice save as to costs" when in fact it was an open communication. Your response and the present email, containing as they do issues concerning settlement are, however, properly designated "without prejudice save as to costs".

You have said that you are prepared to mediate this matter. You have also said that you are not prepared to do so unless our client waives his claims to costs and damages. However, you now say that you wish to jointly instruct a third party to evaluate the claim which would clearly require an assessment of our client's claim to damages and costs. Would you now be prepared to remove the waiver you require from our client as a pre-condition of mediation? If you are not, then there is nothing to mediate upon and our client's position remains that he must proceed with his claim by issuing legal proceedings.

Our client's position is in any event clear. You have by your unreserved apology admitted liability in relation to our client's claim. Even if you now seek to resile from that admission, our client's claim is, as we have set out in correspondence, a serious one aggravated in no small part by your conduct since the original libel. Further, the costs of instructing an independent party with specialist knowledge to re-evaluate our client's claim would run to several thousands of pounds. Given the obvious merit of our client's claim, we should have thought that such funds were better spent on meeting our client's damages and costs claims. There is certainly nothing whatever to be achieved by incurring the additional costs of instructing an independent third party as you propose.

We also refer you to the fact that such an evaluation is simply one of the four forms of alternative dispute resolution set out in the Defamation Practice Direction together with the more appropriate and cost effective measure proposed by our client of "Discussion and Negotiation". You have however rejected that proposal albeit that the meeting proposed by us would obviously have been targeted towards the parties attempting to find common ground and a settlement.

We note your comment on the timing of our client's provision of the apology to the local media but also note for the record that the apology was posted on the internet some considerable time ago on 21 August 2009.

We note that you have no comment to make concerning our client's referral of this matter to the Parliamentary Commissioner for Standards. Our client's position in relation to your proposed speech to the House remains entirely reserved. Please confirm by immediate return when you intend to apply to the Speaker for an opportunity to speak and that you undertake to provide us with at least one week's notice of the date on which you propose to make that speech.

We await hearing from you.


From: John Hemming

To: Tamsin Turk

Sent: Thursday, October 01, 2009 9:01 PM

Subject: Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry"

OPEN LETTER

1. I have not refused mediation. I have refused a meeting unless your client removes the threat of costs or damages. This has been my consistent view for some time. Your client continues to attempt to expand the issue to encompass the evidence provided to the CPO which is why I think this is an abuse of process and an attempt to pervert the course of justice.

2. I am additionally willing to jointly appoint a third party to assess the case. This seems the best way forwards.

3. I have apologised for "any misunderstanding". This is not an admission of libel. It has been clear since Day 1 that we were referring to Sainsburys and Asda and not your client. I was happy to apologise for "any misunderstanding". I don't think there is any misunderstanding. Anyone who knows of your clients detailed involvement in the cpo inquiry also knows that it could not refer to him as he bought his land before Tesco. I did not apologise for "the misunderstanding".

4. I am happy to continue discussion and negotiation, but I wish that to be in writing.

5 I posted the apology on the internet indeed on 21st August and told you of that fact. The fact that you did nothing with this information demonstrates a lack of concern that your client's reputation was in any way under challenge by the leaflet.

6. I am not accountable to you for the timing within which I intend speaking in the House of Commons. I am also not accountable for the timing within which I table a motion referring this matter to the Standards and Privileges Committee. I have made what I think is a kind offer of allowing your client to put his case in detail to me about the other developments in which he has been involved as to whether he contributed positively or otherwise.

7. I am not going to make any undertaking in respect of Speeches or Proceedings in parliament.

8. My previous letter was an open letter.

9. If you do issue proceedings I will be looking for exemplary costs for the value of my time in dealing with this issue given that your case involves proceedings in parliament and is hence a contempt of parliament.

From: Tamsin Turk

To: John Hemming

Sent: Tuesday, October 06, 2009 7:27 PM

Subject: Private & Confidential/ Not for Publication or Dissemination/ Without Prejudice Save as to Costs -Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry"

Private & Confidential

Not for Publication or Dissemination

Without Prejudice Save as to Costs

We write further to your e-mail of 1 October 2009. We respond to your numbered points as follows:

1. Your comment that our client continues to expand the issues to include the evidence provided to the CPO is groundless. The defamatory statements of which our client complains relate to our client's conduct in the context of the CPO. You have apologised unreservedly for those comments and our client requires payment of his damages and costs. In these circumstances, if you are not prepared to discuss your payment of damages and costs then, we reiterate, there is nothing for the parties to mediate.

2. We refer to one above. The fact that you are liable to our client is clear. The resolution of this matter, particularly in the light of your refusal to address the key issues of damages and costs, will not be facilitated by him needlessly incurring the further cost of instructing a third party to consider the merits.

3. Noted. We disagree.

4. We refer you to one above.

5. We disagree. Our client has released them to the local newspapers as appropriate.

6. Noted. We disagree. Our client reserves his right to refer the Parliamentary Standards Commissioner to this line of correspondence.

7. Noted. Our client reserves his right to refer the Parliamentary Standards Commissioner to this line of correspondence.

8. We disagree.

9. Your comments concerning exemplary damages are misconceived in law.

In view of the stance that you persist in adopting, it is clear that there is nothing whatever to be gained from further canvassing these issues with you in correspondence and that our client has no option but to proceed to issue his claim.

From: John Hemming

To: Tamsin Turk

Sent: Tuesday, October 06, 2009 6:47 PM

Subject: Re: Private & Confidential/ Not for Publication or Dissemination/ Without Prejudice Save as to Costs -Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry"

We haven't made any progress for some time. I reiterate the offer of a joint instruction of an expert.

Further correspondence submitted by Mr Hemming

Ev 1B: Letter from Withers LLP to Councillor Paul Tilsley, 29 July 2009

Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry"

We act for Mr Jeremy Knight Adams, a well respected property developer and businessman. We write in connection with the above seriously defamatory and maliciously false leaflet which has damaged and is continuing to damage our client's reputation.

Our client is outraged at the contents of the above leaflet. His main business activity involves major supermarkets and related developments and there are many people in Birmingham and the surrounding area who will know very well that he is the person who owns the "few small plots" allegedly purchased by our client "with the intention of delaying the Tesco development", which you wrongly describe as "spoiling tactics".

For your information the true facts are:—

1.  Our client is the sole owner of the plots in question which have been in his ownership for over 20 years and is it is he who introduced Tesco to the site in 1993. The 2 plots were not purchased "with the intention of delaying the Tesco development" nor is our client using "spoiling tactics" as you allege in your defamatory and maliciously false leaflet.

2.  Our client's aim is to secure for Yardley a new development which complies with local, regional and national planning policies. As a consequence our client's proposals for the centre would have a greater diversity of uses, a wider range of choice and a significantly higher number of jobs than the development currently proposed by Tesco. Our client has no objection whatsoever in Tesco carrying out a development along the lines which he has proposed and indeed he is prepared to do all that he can to bring this about.

3.  The contents of your leaflet are therefore factually incorrect, defamatory, maliciously false and particularly inappropriate as it has been circulated to every household in the Yardley District during the course of the ongoing public enquiry.

4.  In the circumstances, our client requires you immediately to do the following:

4.1 An unqualified withdrawal of the allegations referred to above and a proper apology to our client in the attached terms to be circulated to all those to whom you circulated the offending leaflet. Kindly also inform us who wrote the offending part of the leaflet, who authorised the publication, who published it, the date of issue and how many copies have been distributed.

4.2 An undertaking that neither you nor anyone else in the Liberal Democrat Party will repeat the same or any similar defamatory or maliciously false allegations about our client.

4.3 The payment of a substantial sum in damages to a charity of his choice.

4.4  Payment of our client's legal costs.

Kindly acknowledge receipt of this letter by return and we look forward to receiving your substantive response by no later than close of business tomorrow (Thursday 31 July). Please confirm that you will ensure that all documents that may be relevant to this matter are kept safely. These include but are not limited to e-mail sent, received and in draft, notes, recordings, telephone messages, drafts of the leaflet and any other relevant materials in whatever form. In the meantime all our client's rights and remedies are fully reserved against you and all those involved in the publication of the offending material.

Ev 1C: Letter from Withers LLP to John Hemming MP, 14 September 2009

Without prejudice save as to costs

By E-mail only:

To: John Hemming

Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry"

We write further to your email of 9 September at 9.50am.

Without prejudice to the clear merit of our client's claim, he would be prepared to meet with you on a without prejudice basis to explore whether it is possible to reach an amicable resolution of this matter. Our client would however, in order to avoid incurring any unnecessary costs, propose that you meet not by way of mediation but simply at a without prejudice meeting.

We look forward to hearing from you in this regard. In the meantime all our client's rights are reserved.

Ev 1D: Letter from Withers LLP to John Hemming, 14 September 2009

Liberal Democrat leaflet "Lib Dems back Tesco at Enquiry"

We write further to your emails of 9 September 2009.

As we set out in our letter of 8 September 2009, a substantial amount of our client's costs have been incurred by reason of the manner in which you have chosen to conduct this matter, in particular, your inappropriate allegation of parliamentary contempt which theme you have now revived in your second email of 9 September 2009.

Our client's letter of claim was first acknowledged by you on 30 July 2009. However, it was not until 3 August 2009, after the issues had been canvassed over numerous emails, that you then said that you would make a speech to the House of Commons that our client's proposed claim was nothing more than bullying tactics in an "attempt to gag opponents".

That you have accepted that you defamed our client is manifestly clear by the fact that you have without

reservation published on your website an apology for conveying the meaning that we ascribed to the statements that you made in the leaflet.

We refer you to the following paragraphs of the Parliamentary Code of Conduct:

" . . 9. Members shall base their conduct on a consideration of the public interest, avoid conflict between

personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest...

15. Members shall at all times conduct themselves in a manner which will tend to maintain and strengthen the public's trust and confidence in the integrity of parliament and never undertake any action which would bring the House of Commons, or its Members generally into disrepute."

It is, in the face of our client's claim and your apology, difficult to see how you could not be in a position of conflict in making your proposed 15 minute speech to the House concerning our client, "all of the developments" with which he has allegedly been involved and details of his alleged "spoiling tactics". We would certainly welcome you comments in this regard. However, should you persist in this vein then our client will have no option but to refer the matter to the Parliamentary Commissioner for Standards for his determination.

It is also, in the light of the fact that the resolution of this matter has been sidetracked by your assertions of parliamentary contempt and further obstructed by your refusal to engage on our client's quite proper claims to damages and costs, disingenuous for you to assert that our client is not concerned with protecting his reputation. We again note that you have published the agreed apology on your website and agreed to our client's circulation of the same to the media.

Finally, you will appreciate that each and every party against whom our client would bring his claim, including you personally, would be joint and severally liable.

In all the circumstances, we would refer you to our letter of 8 September 2008 and each of the remedies sought by our client. We await your proposals in relation to the same.

In the meantime, all our client's rights are reserved.

Ev 3: Commentary on parliamentary law and other cases for Standards and Privileges Committee, 26 January 2010

1.  This additional note has been written as one Member's view as to how the law of parliament is important to the citizens of the UK and looking at both the instant case and also other examples not only in the UK, but in other common law jurisdictions. An Irish Barrister, Kieron Wood, who is writing a book on this issue has kindly allowed me to submit an extract from a draft of that book as an appendix which covers relevant international examples including unusual examples.[27] Paragraphs relating to recent cases relating to other people have been agreed by them.

2.  There are two important figures in respect of the instant case. Withers were initially asking for a payment of around £4,000 for their costs and at the final stage the indication was that costs were more like £20,000. That was without any proceedings being issued. Had the matter gone to court the costs would have much greater. Most importantly even if I won the case I would not have got all my costs paid. Jeremy Knight Adams is someone with considerable resources who has a reputation as to being unconcerned as to the costs he pays if he loses. The threat of having to pay out tens of thousands of pounds as a consequence of speaking in an adjournment debate is not a trivial threat. Had The Speaker not agreed to give precedence to this matter I would have still asked for an adjournment debate. However, I took the view that the behaviour of Withers was a matter that should be looked at formally and hence asked for some collective support from Parliament for Freedom of Speech.

3.  Freedom of Speech in the House is an issue of great importance to the people of Britain. The job of Parliament primarily is that of speaking on behalf of the people. If Members of Parliament are silenced then the people have no voice.

4.  The instant case is a very good example of a situation where there is a constituency problem causing problems for elderly and disabled people who have little economic power who are being held hostage by a parasitic speculator who is trying to ransom a plot of land. The speculator brings in his hired hands to threaten the local politicians in an attempt to get them to change their evidence and otherwise keep silent about the issue. The fact that it failed does not mean that it is acceptable. It has been referred also to the police, but the CPS's initial view was that it was not against the criminal law. Hopefully by the time the Committee has finished its deliberations the inquiry will have reported and the development will have recommenced.

5.  The fundamental principle of representative democracy is that the elected representatives are primarily responsible to their constituents for the way in which they do their job. Having politicians tangled up in legal proceedings about what they are saying in parliament is fundamentally anti-democratic. The rules about privilege do not allow politicians to mislead the house, but they avoid having situations in which time is swallowed up in legal disputes that should be spent on the work of politics.

6.  I must emphasise that the freedom of speech in the House is not a freedom to say whatever you like, but instead is accountable to parliament collectively rather than through the courts. There remains a reasonable constraint on Members to ensure that they do not act in an intentionally misleading manner or abuse the process. The Australian senate allows a right to reply. It may be that we should allow such an approach. However, Members of Parliament must not be prevented from freely speaking about issues that concern their constituents.

7.  The instant case has a number of elements:

a) The blatant contempt making threats relating directly to speaking in the House on numerous occasions.

b) The linking of proceedings outside the House with a proposed proceeding in the House also on numerous occasions.

c) The attempt to make an MP pay for the costs of discussing a matter of privilege.

8.  Two of these issues a) and c) are straightforward contempts. The other issue is more complex, but in my opinion equally important and also had a longer lasting effect.

9.  Within the correspondence there was also a frequent threat to report me to the Parliamentary Commissioner for Standards for speaking out. I am not really too worried about that. I take the view that there should be some way in which someone can complain about what has been said about them. That, however, would be an issue for parliament rather than the courts. It may be that it should be made clear that any such complaints should be raised through another Member of Parliament rather than the Parliamentary Commissioner for Standards. I would be entirely happy if the Committee decided that this aspect of the case was not worth looking at.

10.  The more complex issue is that of the effect of the threat of proceedings on a matter which makes no mention of parliament itself as a tool to stop a matter being spoken of in the House. It is quite clear that privilege is not limited to what is said in the House. The case Rivlin v Bilainkin, however, was considered by the courts and identified that privilege does not automatically apply to a letter written by someone to an MP and handed in at parliament. That case was based upon the point that in no way was the letter linked to a proceeding in parliament. The less direct aspects of the Withers case are a contempt because the threat of proceedings for matters outside the House have been linked by them directly to proceedings in the House.

11.  It helps to look at this from the perspective of Withers' client. Once the issue of parliamentary proceedings has been linked in his mind with the potential proceedings outside parliament it is impossible to unlink them. In this case it is impossible to draw a line to ensure that the courts are not dealing with a matter covered by Article IX. On that basis the threat of proceedings outside the house are is a contempt even if they don't mention the proceedings themselves.

12.  There was a case in Victoria State, Australia in 2006 (Michael Leighton) where a threat of defamation against a constituent for sending information to an elected representative was found to be contempt. (There is a lot of detail about this in the appendix.)

13.  The key test is whether or not the actions of the person alleged to be committing a contempt are acting to prevent an MP from doing his or her job. It is that which determines whether or not parliament needs to take collective action to protect the constituents voice from being silenced. Within this the fact that the threat of external proceedings directly linked to proceedings in the House has been made makes the matter clearly one of contempt.

14.  In the case of b) above there has been an attempt to deter me from doing my job speaking out for the citizens of Yardley.

15.  I have been concerned for some time that parliament's function has been undermined in various ways by actions of bodies outside parliament and have discussed this with other Members. I believe that the process whereby contempt complaints are considered should be changed to allow Members to apply directly to the Committee on Standards and Privileges. This would enable more marginal cases to be looked at without the potential reputational damage to people who are alleged to have committed a contempt that a high profile case like this could cause. Essentially the process as it stands requires a case to be substantially proven before it is passed to the Committee. I think this is too high a threshold. If the committee can consider the principles below there are a number of M embers who would welcome this. I have discussed these cases with the members concerned.

16.  One case I have been concerned about is that where Bury Metropolitan District Council threatened a Mr Jerry Lonsdale with criminal proceedings for talking to David Chaytor MP and myself about his family case. This, I think falls within the Leighton precedent. Bury have now given up threatening him in this way, but I do think the fact that they even thought for a moment that it is reasonable to try stopping someone from talking to an MP about a case requires attention. They still do not recognise that they were in the wrong.

17.  Jim Dobbin is also concerned that a judge tried to stop one of his constituents talking to him a few years ago. I think it needs to be made very clear that it is the right of citizens of the UK to communicate with their elected representatives and that parliament will stand up for this right of citizens.

18.  There was another case in 2009 where a Judge considered contempt proceedings against John Baron and myself about our comments in parliament without giving any notice to Parliament. I think this is something that the Committee should have seen.

19.  This issue about communication between citizens and MP also rises with the case of Damien Green. The precedents from other common law jurisdictions would indicate that a contempt of parliament occurred with the arrest of Mr Green and potentially that of Chris Galley.

20.  This issue as to what constraints there are on communications between MP and citizen is a complex one. This was addressed previously in the Sandys case. I do think, however, that in terms of ensuring that parliament can function properly that the right of citizens to communicate with Members of Parliament needs to be protected. That can only be done through the contempt process. Doing so, however, would not protect the publication of such communications unless they were published through parliamentary proceedings.

21.  There was also a default judgment entered against Ann Keen in respect of her constituency casework. A question has to be asked as to whether the citizens of the UK really want the courts to get involved in the question as to the relationship between constituents and Members of Parliament. Logically any issues here relate to how an MP does their job and hence fall within the remit of the Standards and Privileges Committee and the electorate rather than the courts. This would not, of course, mean that issues relating to expenses fell within the ambit of Article IX.

22.  Underlying all of this is the principle that it is a matter for the voters to judge how well a Member of Parliament does his or her job. If they are unhappy they can vote for someone else.

23.  Another area that does need some detailed consideration is that of parliament's right to be reported. Historically it was considered a contempt to report on parliamentary debates. That changed some time ago. The Trafigura case and others such as my EDM 1114 in the 2008-9 session.

  EDM 1114 CONVICTION OF MARTIN MCCABE 04.03.2008

Hemming, John

That this House notes that the Court of Appeal refused the appeal of Martin McCabe against  his criminal conviction for assisting his pregnant wife to leave the country with her son.

24  Martin McCabe (who has since been released) was one of a number of secret prisoners imprisoned by the family courts. He drove his pregnant wife and 8 year old stepson to Dover to escape from the proposed forced adoption of the stepson. They are still on the run somewhere. He was jailed. Reporting his imprisonment was against a court order. However, privilege allowed me to identify him. Article 6 of ECHR requires that the order to jail him be public and his identity public, but this was not followed by the court.

25  I think it should have been lawful for The Times (who have been concerned about this case) to have at least pointed people at the report on the parliamentary website, but their lawyers thought not. Incidentally his wife's mother, Janet Mockridge, is a Conservative County Councillor. She is also subject to a gagging order.

26  I have not managed to find the source judgment but it is reported that Lord Denning concluded that reporting parliament cannot be contempt of court in the 1970s. Whether trying to prevent the reporting of parliament should be contempt of parliament or not is perhaps an issue that also could be considered. It is only right that newspapers should be able to report parliamentary proceedings.

27  It is really only parliament that can act to uphold the power of parliament to act on behalf of the citizens of the UK. If we fail to do so we only have ourselves to blame.

28  I am asking the committee to find Withers and Jeremy Knight Adams in contempt for all of the three reasons (a, b and c) above and to find that if any legal proceedings are issued in relation to this matter that those would also be in contempt.

29  If it is possible for the committee to consider the principles behind the wider issues I think that would also have merit. Obviously the committee could not take any action on any specific case without a direct reference, but some guidance on those issues is urgently needed.

John Hemming

26th January 2010



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