Westway Development Trust: how property developer pounded a bicycle repair man

This research document will make little sense if you haven't read Brian Deer's Notting Hell from The Sunday Times of June 17 2001. In July 2002 the trust renamed itself Westway Development Trust. A Westway Development Trust index of materials is also available

THE WESTWAY DEVELOPMENT TRUST [PREVIOUSLY NORTH KENSINGTON AMENITY TRUST] AND MR LYN HARDY-SMITH

Since 1986 the North Kensington Amenity Trust (the trust, NKAT, since renamed Westway Development Trust) has pursued a dispute against Lyn Hardy-Smith, a local activist, former bicycle shopkeeper and trust tenant stall-holder. After making an allegation of dishonesty against the trust's director, Roger Matland, trustees pursued him for libel (acting through Roger Matland), now committing at least £43,000 of charitable funds to the action - after Hardy-Smith withdrew his allegation and apologised for it. Hardy-Smith defaulted on £1,000 of an agreed £5,000 settlement payment, after which the trust initiated an action to seize the Hardy-Smith family house, in which he says he no longer has an interest. Other critics of the trust in the area say they are fearful of complaint against the charity in case the same thing happens to them.

(A) HARDY-SMITH'S COMPLAINT WAS TO THE PROPER AUTHORITY AND ENJOYED LEGAL PRIVILEGE

According to notes made by the trust's representative (assistant director Peter Williams, now left) after a hearing in Bloomsbury County Court in January 1986 [L1] Hardy-Smith first alleged before (what was then called) a registrar in that court that the trust had submitted an affidavit concerning the dates on which he was a stall-holder which was "a lie". This instance of the allegation enjoyed the absolute privilege of the courtroom. Hardy-Smith won the case (for £180) and Williams noted:

"The general feeling I got was that the registrar viewed us as the oppressive landlord milking our poor tenants for every penny they were worth. £10 of costs were awarded against us and these were subsequently paid to LHS by cheque.

"LHS asked the registrar about his £100 deposit and was told this was a matter for him to take up with the trust, but suggested that if we were less than co-operative with him he could always complain to people such as the Charity Commissioners."

Hardy-Smith then badgered the trust for the money, which it refused to give him. Williams noted:

"I discussed the matter of his deposit with Roger who took the firm view that he could not have his £100 back unless he proved through the court that we actually owed it to him and bearing in mind that we seemed to have lost the arbitration hearing on a technicality."

Hardy-Smith became angry about this response and on 26th January 1987 drafted a letter concerning Roger Matland with a councillor, Tony Allen-Smyth (then a long-standing critic of the trust, now deceased), repeating his allegation of a false affidavit [L2]. Brian Deer investigated this matter for The Sunday Times and, in his opinion, it is possible that Allen-Smyth incited Hardy-Smith to this course of action as part of the councillor's wider dispute with the trust. Libel specialists who have studied this letter say that it is clearly defamatory of persons directly connected with the market, where Hardy-Smith's stall was situated, but it is ambiguous with regards to Roger Matland and subject to interpretation.

The letter concerning Roger Matland was submitted to the trust's then-chair, Bill Michael, who has since told Brian Deer that he has no recollection of any matter whatsoever connected with the North Kensington Amenity Trust. Hardy-Smith submitted another letter concerning his £100 deposit. Both letters were distributed to all 15 members of the trust's management committee.

Specialists say that Michael was the proper authority to whom complaints should be submitted - even if wrong - and that Hardy-Smith would enjoy a substantial degree of legal protection were the matter to be tried before a judge.

(B) THE TRUST RESPONDED WITH A DEMAND FOR MONEY WITH THE THREAT OF LIBEL PROCEEDINGS

After some internal inquiries, with which Hardy-Smith did not fully co-operate, Sinclair Taylor & Martin, the trust's solicitors (and tenants) wrote to Hardy-Smith on 4th June 1987 saying they acted for Matland [L3]:

"Our client requires from you an apology in the form of the draft attached and compensation in the sum of £3,000 which he intends to donate to charities of his choice."

From here, the matter was briefly pursued, then left dormant until in 1990, three days before it would have legally lapsed for passage of time, it was reactivated by the trust. A writ for libel [L4] and statement of claim [L5] were issued on 22nd January 1990, followed by three proofs of evidence (Roger Matland [L6], management committee member Philip Murley [L7] and trust property committee chairman Martin Owen [L8]).

Neither the statement of claim, nor any of the proofs of evidence, claim that Hardy-Smith's allegations were given any wider currency, or published more broadly, than his original letters and their circulation by the chair within the management committee. Nor is any material put forward suggesting that Roger Matland had suffered tangible damage. Indeed, it is clear that the management committee did not accept Hardy-Smith's complaint. It plainly had full confidence in its director, who subsequently enjoyed increases in his salary.

(C) ALTHOUGH APPARENTLY AN ACTION BROUGHT BY MATLAND, THE PURSUIT OF HARDY-SMITH WAS IN FACT INSTIGATED, FINANCED AND MANAGED BY TRUSTEES

In an interview with Brian Deer on 21st October 2000, tape-recorded by both parties and witnessed by deputy director Jonnie Beverley, Roger Matland said that he did not personally think that he had been libelled in Hardy-Smith's letter, but that his management committee advised him to take action. Greeted by Deer's expressions of incredulity and a subsequent phone call to Michael's successor as chair, Dorothy Venables, Roger Matland wrote to Deer on 26th October 2000, setting out this point thus [L9]:

"I also gather that you said [to Venables] I never felt libelled in the first place. I am sure we can agree that I said when I first read the letter I felt it to be part of the politics of North Kensington and it was not until my trustees were legally advised of the seriousness of it all that it dawned on me. To highlight my first reaction without the subsequent context is, in my opinion, to mislead."

This letter was followed by correspondence between Sinclair Taylor & Martin and Alastair Brett, legal manager of Times Newspapers Ltd. On 23rd January 2001, Brett wrote to the solicitors Re: North Kensington Amenity Trust, among other things seeking information about the trust's dealings with the Charity Commission [L10]. Sinclair Taylor replied on 26th January 2001, reference jst/dmb/nkat, [L11], stating, among other things:

"We are still currently in the middle of litigation over this matter and the charity has to act prudently on the basis of advice it receives. We have had to advise our clients that disclosing material relating to this matter, at this stage, could prejudice their position in the litigation."

Also:

"The allegations against Mr Matland were made about him in his capacity as the chief officer and in connection with his work as their employee managing the charity's assets and if unrefuted would have damaged the charity."

In 1988, Bill Michael, then chair of the management committee, responded to Hardy-Smith in letters which confirm that the trustees were instructing Sinclair Taylor & Martin in the libel pursuit [L12]. The first letter, dated 9th February, states:

"The committee wish me to say that they have no comment to make on the points raised in your letter and that you must yourself take any steps that you consider necessary to protect your interest in the matter.

"In view of the unavoidable delay in considering and replying to your letter it has been decided that you may have a further seven days from the date of this letter in which to reply to the letter which Sinclair Taylor & Martin sent to you on the 5th January."

On 8th March, Michael wrote:

"The extension of time given in my letter of 9 February has run out and there is no further extension."

Three letters [L13] from Judge Gerald Gordon, who assumed the chair of the management committee in 1993, are suggestive that, notwithstanding that the action against Hardy-Smith to recover the costs of the libel action was brought in Roger Matland's name, the trustees were still running the pursuit and instructing Sinclair Taylor & Martin. The third letter, dated 1st May 1997, eg, states:

"Your letter to Dee Dainton, circulated to all trustees, has not altered the instructions to the solicitors."

The communication to Ms Dainton, a member of the management committee, was essentially a matter of Hardy-Smith begging her for help. But a memorandum from Matland to the management committee, dated 25th March 1997 [L14], again reveals that it was the trustees who were pursuing him. Noting, in passing that "the trust has not employed private investigators at all since the earlier occasion", Roger Matland concludes:

"I think there are dangers of individual trustees writing to people with whom the trust is in litigation. I would recommend therefore that the chair writes to Mr Hardy-Smith simply stating that the letter has been circulated to all trustees and that trust solicitors remain instructed to proceed in this matter."

(D) THE TRUST WAS HELL-BENT IN ITS PURSUIT OF HARDY-SMITH

Legal aid is not available for libel. Hardy-Smith, a former bicycle sales and repair man of modest means and no extended educational background, apologised in a letter submitted by a briefly-retained high street solicitor on 11th July 1991 [L15]. In this letter, he states of Roger Matland:

"I accept that you did not incite Mr [xxx] to commit perjury. If that can be understood from that letter I apologise... I undertake not to make and/or repeat such allegations in the future."

His solicitors told Sinclair Taylor & Martin at the same time:

"Our client will make the undertaking to the court if this is deemed necessary.

"Our client will pay your client's reasonable costs to be taxed if not agreed."

Sinclair Taylor & Martin replied to Hardy-Smith's solicitors on 18th July 1991, rejecting the apology, stating, among other things [L16]:

"As far as the first point is concerned, your client's proffered apology is far from being unreserved and in particular seems to suggest, contrary to your client's plain admission on the pleadings, that the letter of 26th January 1987 is not capable of bearing the meaning that our client incited [xxxxxxx] to commit perjury. Further it does not contain a plain admission that the allegations made against our client are untrue.

"On the second point, an offer to submit to an order for taxation on a standard basis is not the same as making an arrangement for payment "in full" of our client's legal costs. The actual sum must be agreed between us so as to ensure that our client is not out-of-pocket as a result of the action."

Sinclair Taylor & Martin did not disclose that the client from whom it was taking instructions was the North Kensington Amenity Trust. Hardy-Smith says that during a High Court preliminary hearing - he believes before a Master - his opponent's counsel declined to reveal who was financing the action against him. To the best of his recollection, he says that some extended exchange occurred between the judge and counsel in which be believes some warning or surprise was expressed by the judge. In any event, the financing of a libel action can be a material fact to the issues to be tried and, perhaps with this in mind, Hardy-Smith obtained subpoenas against the charity's trustees. One subpoena was served on Dorothy Venables, who was chair of the management committee between the chairmanships of Mr Michael and Judge Gordon.

In response to this subpoena, Sinclair Taylor & Martin wrote to Hardy-Smith on 4th June 1992 [L17]:

"You have subpoenaed Mrs Dorothy Venables, the chair of the North Kensington Amenity Trust, in order to ascertain the trust's position in connection with costs in this matter. We are writing to confirm the position and would like your confirmation that given the information provided below it will not be necessary to call Mrs Venables. Should you not provide that confirmation we will apply to have the subpoena set aside."

Venables was evidently reluctant to go to court to tell a judge what she knew of these matters. She still is reluctant to explain herself. When Brian Deer called her to discuss this, she said that she would say nothing before taking "legal advice" and subsequently refused to say anything at all.

Her silence may or may not be connected with a "confidential" memorandum she circulated to the management committee on 13th May 1992 - after Hardy-Smith had apologised - reporting that an inner circle of four trustees had agreed to extend a £4,000 budget to pursue Hardy-Smith to £30,000 from the charity's funds. The memo implies that there was an element of a legal device here by which the trust could sue Hardy-Smith via Roger Matland. While any person can help with a litigant's finances, it is a clear matter of law that defamation proceedings can only be brought by a person in defence of their own reputation, not somebody else's. Wrongly calling the printed defamation 'slander', Venables noted [L18]:

"A slander action can only be brought by an individual, not by the Trust, but the lawyers had advised that we could underwrite Roger's costs."

Later in the memo, she wrote:

"The lawyers have just advised me that we have a 65-70% chance of winning."

(E) THE CHARITY IS SEEKING THE FORCED SALE OF THE HARDY-SMITH FAMILY HOME, IN A DISPUTE OF THE UTMOST UGLINESS

In Brian Deer's opinion, throughout this affair, Hardy-Smith has acted with a mixture of depressed helplessness and bloody-minded obstructiveness. For instance, unable to contemplate an unaided libel hearing in 1992, estimated for two days in the High Court, he agreed, days before the scheduled trial, to a consent order [L19] under which he would pay £5,000 to the trust. The rest of the trust's costs, presumably, were to be written-off to the charity's funds. In the event, however, he only paid them £4,000 - a fifth of five cheques having bounced. He says he didn't have the money [L20].

After warnings, the charity sent bailiffs [L21] in April and December 1993, who failed to recover sufficient from Hardy-Smith's bicycle business to cover their own costs of attending at the premises.

The charity contends - and Hardy-Smith denies - that Hardy-Smith transferred ownership of his family house at 475 Latimer Road, London W11, in order to avoid paying his debt to the charity. This is in the light of the debt having been reduced at one point to £1,000. Brian Deer was present during a compulsory valuation of the house for the County Court. According to an amended originating application [L22] dated 2nd December 1998, the charity applies to the court:

"That the property be sold not withstanding that the respondents refuse to consent to the said sale."

In the dispute over ownership of the house, on 26th January 1999 Sinclair Taylor & Martin served a charging notice and other legal papers on Hardy-Smith's terminally ill uncle Robert Mayo (who brought up Hardy-Smith as a child after his father deserted his mother) at the Princess Louise Hospital, where Mr Mayo subsequently died [L23].

The occupant of the house is Lucy Hardy-Smith, Lyn Hardy-Smith's daughter and co-respondent to the trust's action. She was a single mother and was pregnant [L24] during the most recent round of the dispute and, no doubt, gravely distressed during her pregnancy by the possibility of the seizure of her home.

Hardy-Smith has long-term medical and psychological problems. A consultant at St Mary's Hospital certifies that Hardy-Smith is diabetic and has been treated with insulin since 1990 [L25]. Told that The Sunday Times was inquiring into Hardy-Smith's case, his general practitioner volunteered [L26]:

"He has attended my surgery on 4 occasions since 1994 with psychological problems caused by the protracted litigation in which he has been involved."

The doctor itemised these attendances from Hardy-Smith's medical records.

(F) THE PURSUIT OF HARDY-SMITH HAS CREATED FEAR IN THE COMMUNITY

The trust has been gravely controversial since its inception. In this context, it is striking that complaints from Hardy-Smith which Matland himself took to be "part of the politics of North Kensington" were responded to with a libel action, brought by the trustees to defend their own reputation, where the recipients of the alleged libel - the management committee - were themselves financing the action (and therefore could not have believed what had been said), using charitable funds which were not their property, and where no tangible damage to anybody was demonstrated, except to Hardy-Smith's own health.

The trust has refused to reveal communications with the Charity Commission, apparently forced upon it after a complaint to the commission by Hardy-Smith in 1992 and subsequently. In later responses to those complaints, the commission refused to refer the matter to its investigation division, refused him any information and told him that his correspondence would be destroyed [L27].

Legal advice suggests that the Charity Commission would need to thoroughly investigate this affair, hearing fully from Hardy-Smith, since vexatious litigation financed by charity funds could be ultra vires and/or a breach of trust, rendering the trustees liable to repay the money back to the charity.

Throughout Brian Deer's inquiries for The Sunday Times, councillors, local people and contractors said they were wary of criticising the trust, since, although Hardy-Smith's allegation has not been widely known - what happened to him has become common knowledge in the Golborne Ward area of North Kensington. One potential witness is dead, but others, including two councillors, say they are prepared to come forward and state that they bit their tongue with regard to the trust and its controversial activities, believing it to be dangerously litigious.

One example of such fear is that of a decorator, who painted the trust's premises and who complained to the chair, Judge Gordon, that the charity appeared to intend to avoid proper payment for the work he was doing. Gordon replied on 19th August 1999, stating, among other things [L28]:

"I was unimpressed by your aggressive and bullying tone in the letters. I would also remind you that allegations of dishonesty if untrue are libellous and if made in relation to a person's employment are actionable without proof of damage."

After the decorator issued a county court claim against the trust, it launched a bizarre counterclaim, only withdrawn on the terms of a consent order [L29] stipulating:

"That neither party shall discuss the matter with third parties thereafter."

(G) THE STING OF HARDY-SMITH'S DEFAMATORY ALLEGATION WAS TRUE

Perhaps most personally disgraceful aspect of this affair is that the sting of the supposed original allegation, made by Hardy-Smith - first in court and then to the trust's chair - was, if directed at Roger Matland, essentially true.

Essentially, the "libel" of Matland was the claim that he is a person who would incite another to make a false statement to public authorities in order to advance litigation against Hardy-Smith. A specific was that Matland was alleged to have procured evidence from those under his sway that Hardy-Smith was in a particular place at a particular date, when Hardy-Smith says he was not. Notwithstanding that the original matter - withdrawn and apologised for - concerned a false affidavit (and was therefore sworn by the third party) in a later incident [L30], involving Hardy-Smith's car, Matland ordered trust staff to submit a false document to the government's DVLC. It is understood that Matland has been interviewed under caution with a view to prosecution. Later, this was not pursued.

The documents concerning this deception [L30] show that Matland submitted a file note to Sinclair Taylor & Martin dated 9 November 1998 stating:

"At about 10.45 on Monday 9 November 1998 I was driving down Golborne Road when I saw Lyn Hardy-Smith transferring goods from a red VW saloon across into his cafe called Havana. I parked at a discreet distance away, walked back and wrote down the registration number which is E515 PBP. I have asked Janice to obtain the usual from Swansea."

On 11 November, Janice Cairnduff, a trust employee, wrote to the DVLC Swansea falsely claiming with regard to a "Red Golf VW Saloon - E515 PBP":

"The above vehicle is parked on trust land and we wish to ask the owner to remove it.

"I would be most grateful if you could supply me with the name and address of the owner as at today's date so that I may write to them."

If the trustees sued Hardy-Smith on the argument that their reputation would be damaged if they were taken to employ a director who would incite those under his sway to deceive public authorities, then that implication is also true. The trust employed precisely such a person and continues to do so.

Despite complaints to Judge Gordon about this deception, no action appears to have been taken by the trust.

June 2001

Among many letters of complaint received from the Westway Development Trust, or North Kensington Amenity Trust in 2000, three are reproduced here - including one from Martin Owen commenting on the libel issue. The Westway Development Trust has a website at westway.org