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FEATURES - LAW

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When the House of Lords confirmed the£26m surcharge against Dame Shirley Porter in December last year there were a...
When the House of Lords confirmed the£26m surcharge against Dame Shirley Porter in December last year there were a few comments about the passing of an era. This was not just because it was the end of the homes for votes saga, but because it coincided with the final abolition of surcharge from 27 July 2002 under the Local Government Act 2000.

No sooner have we bidden farewell to surcharge then another case appears, Westminster City Council v Porter and Another, as Westminster City Council seeks to pursue the debt of£26million, and in the process establishes a basis for the personal accountability of councillors which has all but resurrected surcharge.

Westminster City Council chose a belt and braces approach for their debt collection action, arguing Dame Shirley was liable to the council both under the outgoing surcharge legislation, Audit Commission Act 1988, and in breach of trust, because she was a trustee of the council's assets.

This was not an attempt to recover the same debt twice, as both surcharge and breach of trust actions were based on the same loss to the council. The reason for the breach of trust action was the time it had taken for Dame Shirley to exhaust all her rights of appeal in the UK courts.

Coincidentally, in Cornelius v Hackney LBC, the Court of Appeal has extended an alternative root of personal liability for councillors and officers. This case relates to a chief executive (now departed) who attempted to discredit a whistleblower.

The Court of Appeal decided that an officer could be liable in misfeasance for actions, even if they were not in discharge of any statutory function. The same could apply to executive members.

The advent of executive government focuses responsibility for particular decisions on individual elected mayors, councillors and officers.

This latest case re-affirms the personal accountability of both councillors and officers for any abuse of power.

n Monitoring Officer is available by e-mailing claire_yardley@wragge.com

Peter Keith-Lucas

Local Government Partner,

Wragge & Co

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