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
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