Tribunal rules against Millwall FC ‘proxy’ over Lewisham land sale price

Millwall Football Club has failed in a Freedom of Information (FoI) bid to force Lewisham Council to disclose a sale price agreed with a property developer for land next to its stadium, and a journalist who has been acting on its behalf could face a claim for legal costs arising from her actions in that role.

A judge-led tribunal panel which assessed the FoI case, an appeal made in the name of Katherine Bergen, upheld the Information Commissioner‘s earlier decision that Lewisham was entitled to withhold the figure for which it agreed in 2013 to sell the land to developer Renewal, although it also found that some further details from an outside assessment of Renewal’s financial circumstances compiled in the same year which had been released with redactions should be disclosed.

The three tribunal members recorded their “disappointment” that although Bergen, who was not present at the hearing, was the “formal requester of the information which gave rise to this case”, it had emerged that she “had at all times been acting ‘on behalf of’ Millwall Football Club” and that this fact “was disclosed only as a result of inquiries made by London Borough of Lewisham’s solicitors” two years after her original FoI request was made.

During the hearing, the tribunal had heard Lewisham’s QC describe Bergen as being “secretively used as a proxy” by the football club because it did not wish to be subjected to the rigours of a public cross-examination, and characterised the absence of any witness from the club contributing to the proceedings as an “elephant in the room”.

The tribunal’s decision notice says that it is “minded to take the view that Ms Bergen’s concealment of important information affected the conduct of these proceedings and constituted unreasonable conduct”. Both Lewisham and the Information Commissioner have been invited to make an application for costs against the journalist. It also says that, whilst it does not presently believe it has powers to award costs against Millwall FC, it would formally consider any such application from Lewisham, if made.

The tribunal also declined to give weight in its decision to a string of what counsel for Bergen termed “red flag” factors, presented as indicating wrongdoing by Lewisham and/or Renewal in relation to the wider New Bermondsey redevelopment scheme, for which the council-owned land at the heart of the FoI case, presently leased to the football club and the associated Millwall Community Trust, is needed.

The 14 “red flags” unsuccessfully raised included:

• Concerns that the price Lewisham agreed to sell the land to Renewal for was lower than the “best consideration” level required by law.
• Concerns that Renewal, as the “master developer” of New Bermondsey, might sell on parcels of land to sub-developers. It was concluded that this is “an integral feature” of such schemes.
• Claims that Renewal would not pay UK corporation tax on its profits from New Bermondsey. The tribunal noted that this was an opinion expressed by a witness for Bergen on behalf of Millwall FC who volunteered that he is not a tax expert, while Jordana Malik, a director of the property management wing of the Renewal Group, said that the company “absolutely” expected to. (NB: During the hearing Malik had said that the reason the Renewal Group contains some companies that are registered off-shore is that her grandparents in Pakistan had contributed financially to the New Bermondsey project).
• Concerns that Renewal lacks experience of large scale property development schemes, casting doubt on its competence.
• Suggestions that the relationship between Lewisham Council and Renewal’s founder, Mushtaq Malik, is inappropriate because Malik used to work for the council, creating a conflict of interest. The tribunal heard that Malik had ceased being a Lewisham employee 20 years before Bergen’s original FoI request was made.

The tribunal decided that on the basis of the evidence before it none of the 14 “red flag” points, many of which have received high profile media coverage, passed its tests of being “based on credible evidence” or having been “reasonably arrived at on the basis of that evidence” and that they did not, therefore, heighten the public interest in disclosing the information Bergen and Millwall were seeking. It also took the view that the New Bermondsey scheme would bring “significant benefits” to “a deprived area” and that there is “scant public opposition to it”.

The tribunal further accepted that “in the particular circumstances of this case, the withheld information would be used by MFC [Millwall Football Club] to thwart the development”. In reaching this view it heeded Jordana Malik’s description of a “sustained press and public relations campaign against Renewal” and her producing examples of negative press reports which she said contained “misleading information, in particular the rumour that MFC’s ability to stage a football match would be impacted by the development”.

The tribunal panel members describe themselves as “satisfied that a negative public relations campaign was in operation at the time of the [original FoI] request and that selective use of information (or ‘cherry-picking’) has occurred in that campaign”. They also note that “we are satisfied that MFC was aware that such criticisms would be made of it but chose not to defend itself. We have taken account of these factors in weighing the public interest in disclosure”.

A spokesperson for Lewisham Council said it was pleased the tribunal had found that it was “properly entitled to withhold the sale price because of the harm that would have flowed from disclosing this information” and stated that “the vast majority of disputed information” in the 2013 assessment of Renewal’s financial position, conducted by PwC, remains undisclosed.

In August, government watchdog the Charity Commission published its separate decision that it has “no ongoing concerns” about the funding of a charity set up by Renewal to run a new sports centre it plans to build in the development area following claims made about it by a member of the public, including that it is a vehicle for money laundering and/or tax avoidance and had made misleading claims about a funding agreement with Sport England.

Lewisham Council has set up an independent inquiry, headed by former Master of the Rolls Lord Dyson, into matters relating to its now abandoned attempt to use compulsory purchase powers to secure full control of the land it leases to the club and the Community Trust next to Millwall’s stadium (which is not included in the New Bermondsey development area). Lord Dyson aims to present a report to the council by the end of the year.