The Long Read: Part 2: Is the Absence of Evidence, Evidence of its Absence? A Grand Question About Red Herrings.

How many times can a story be embellished, elaborated and even altered before it ceases to be true, or as we now say, “fake news”? We ask this in regard to this headline that appeared on the KentOnline webpage, on January 30th 2018:

Two factual errors in one headline? “Owner”, “hotel”…….. but that’s for another day.

But this wasn’t the first airing of this story as it had been heard earlier that day in the First Tier Property Tribunal. Mr and Mrs Stainer were unsuccessfully “defending” a claim for of £167,000 in service charge arrears on their 19 holiday flats. Mr Stainer (pictured) had been also absent from Court for the first two days of the hearing, ostensibly attending the High Court in London. His absence on the third day was explained by his solicitor, Andrew Duncan, as resulting from injuries sustained by Mr Stainer when being “attacked in his home by two intruders”. Obviously shocked at this news, the chair of the Tribunal panel, Judge Tildesley OBE expressed his regrets and wished Mr Stainer a speedy recovery.

The KentOnline article continued:

• “Dangerous” hooligans smashed into an elderly hotelier’s home and attacked him, causing numerous fractures to the face and fleeing with bottles of alcohol.”

The article was full of detail, mainly sourced from Robert Richardson (pictured), general manager of the Grand who was clearly assumed to be speaking authoritatively, as he obviously got his information directly from Mr Stainer and from the CCTV footage:

• Describing the injuries: “causing numerous fractures to the face and fleeing with bottles of alcohol.”

• Medical treatment: “after being treated in hospital for his injuries.”

• The location of the attack: “his private store cupboard in the Grand’s private wing on Friday night the “powerfully built” duo set upon him.”

• And: “in the private area of Mr Stainer’s home when he went in the store room and disturbed two men”

• About the perpetrators: “they were animals and gave him a severe beating, his injuries were bruises, broken eye socket and broken cheek bone.”

• Also a point to bear in mind is the fact the reporter asked for pictures of the alleged injuries sustained by Mr Stainer, none were forthcoming.

Some of this detail was apparently captured on CCTV within the Grand, images from which were reported as having been forwarded to a significant number of hotels, pubs and eateries in Folkestone and Kent to sound the warning. Richardson did this though the membership-only Folkestone Area Partnership Against Crime (FAPAC) which performs the invaluable function of:

• Improving safety and security in public places and the retail environment.

• Collating and sharing information that identifies and warns members about active offenders and their criminality

FAPAC is part of the Folkestone Town Management Ltd of which Mr Richardson is vice-chairman and which we have discussed previously, and we will be returning to the CCTV distribution later in this report.

Kentlive published additional information later that day saying that:

“Police have arrested one man after the attack last Friday (January 26) evening between 8pm and 9pm, though they are still looking for a second intruder,” and that “Following the attack, a 35-year-old man from Folkestone was arrested on suspicion of burglary and assault. He has since been released.”

The article goes on:

• ” A second intruder is still being sought, who is described as being between 45 and 55 with grey hair. He is described as white and of medium build, and was wearing a dark jacket, dark jeans and trainers”.

So far so straightforward. However, this narrative changes as the “medical consequences” of the attack were repeatedly used as part of a sustained attempt to firstly seek an adjournment of separate legal proceeding scheduled for April 26th-27th against the Stainer business interests, and then in an attempt to overturn the decision in those proceedings.

The attempts to secure an adjournment relied on the unfitness of Mr Stainer, and later Mrs Stainer to attend the Tribunal, to instruct their solicitor and to generally deal with the various pleadings and submissions. So how unfit were the Stainers, and how does the law view the quality of medical evidence required to agree to an adjournment? Here’s some background:

• The attack took place on January 26th 2018. Numerous people have stated that Mr Stainer was seen at, for example, the monthly Antiques Fair at the Grand on February 4th 2018, and then at the local Conservative Party AGM.

• On March 8th Mr and Mrs Stainer were sufficiently well to make submissions to the Tribunal in response to an application from leaseholders that would have drastically changed the management arrangements at the Grand.

• On March 16th, the Stainers in both their personal capacity as leaseholders, and as officers of Hallam Estates, the freeholder of the Grand (pictured), were personally served a detailed bundle of evidential documents and legal arguments that spelled out the challenges that the freeholder faced.

• This challenge was later described by their solicitor as having “life changing consequences” for the Stainers, although these consequences were never spelt out, and after all, they were only directors, not shareholders.

It was only on April 3rd, previously undisclosed medical evidence was put forward to request a delay in proceedings that were scheduled for late April.

Mr Duncan requested an adjournment claiming Mr Stainer’s:

• “……recovery has not progressed as well as he would have wished. We are concerned that our client is unable to comprehend the issues before the Tribunal and as such is unable to give coherent instructions.”

This was accompanied by a Statement of Fitness to Work” dated March 29th signed by Mr Stainer’s GP, which referred to “headaches and post head injury”. This document is normally used to determine eligibility for social security and/or statutory sick pay for people in work, and not for retired pensioners or participants in court proceedings.

To quote Judge Vos in a leading case where medical evidence was critical, Governor and Company of the Bank of Ireland v Jaffery” [2012] EWHC 734 (Ch) [49] when referring to a GP’s letter which confirmed that the defendant had been signed off work for three weeks, he said this:-

• “It is important to note that a person’s inability to work at a particular job is not necessarily an indication of his inability to attend court to deal with legal proceedings. It may be, but it may also not be.” For a fuller discussion on the use of medical evidence see ⇒ here

The next day, nineteen days after having been served with all the documentation relating to the upcoming case, the penny dropped for Mr Duncan:

• “Having started to prepare for the two day hearing there are a number of issues which require detailed examination…….. The application also seeks to load significant overhead onto the various commercial enterprises undertaken at the Grand, some of those enterprises might cease to be financially viable*. Therefore the application undoubtedly has the potential for far reaching impacts upon my Client’s life”.

As result of HMRC action, one of these companies was already in liquidation, five more subject to liquidation proceedings. Subsequently, another of those, Kentish Estates Ltd has now also been wound up and bankruptcy proceedings have commenced against the Stainers personally.

Remember that the Stainer’s had first responded on March 8th and the formal document bundle was delivered to them on March 16th, the fact that that Mr Duncan, and we assume the Stainers, only got worried on or around April 1st raises some serious questions, especially in the light of the section we have underlined.

Another medical note then arrived on April 4th which stated that Mr Stainer has a “limited capacity to work at this time”.

On April 11th Mr Duncan resigned as Mr Stainer’s solicitor stating:

• “The medical evidence, which is not contested raises concerns as to whether Mr. Stainer has the mental capacity to instruct his representatives and clearly his representatives cannot represent him if he cannot give instructions.

In total contradiction of Mr Duncan, the medical evidence was robustly contested throughout and even a cursory examination of case law on what constitutes adequate medical evidence would have seen how far short of adequate it was. For example, the “hospital report” repeatedly referred to never actually materialised.

Mr Duncan decided to resign:

• “In the current circumstances I cannot discharge my duties to my client, the Tribunal and my professional duties therefore I request that the Tribunal notes that Allsquare are no longer able to act in this matter”.

In fact, Mr Duncan’s ‘retirement’ was short-lived as on April 20th he wrote again to the Tribunal with further medical evidence, in this case relating to Mrs Stainer – another sick note which mentioned stress, and a repeat note for Mr Stainer. However, it was at this point that the original attack was referred to:

• “It is to be remembered that Mr. Stainer’s health problems are as a direct result of a criminal action undertaken by an individual who was, I understand sitting at the back of the Tribunal at one point during the previous hearing.”

The highlighted revelation that one of the attackers was in Court, shocked and surprised those who were in Court that January day, including our Public Face, around a dozen Grand residents, the three members of the Tribunal Panel and Mr Robert Richardson. Despite repeated attempts to contact the Police, no one has been questioned in this matter, and Police seem to have no intention of following up this lead.

In the meantime, the Tribunal insisted the hearing should go ahead, and would make its decision re any adjournment at the hearing itself, before commencing substantive proceedings:

In a final shot on April 20th, Mr Duncan stated that:

• “The Tribunal is aware that the best available medical evidence has been submitted by qualified medical practitioners. …….. The Tribunal gave reasons for refusing an adjournment despite the available medical evidence. Those matters which the Tribunal placed in the balance against granting an adjournment no longer carry any weight. Therefore, unless the Tribunal has other, as yet un-promulgated reasons for refusing the application for an adjournment the adjournment should be granted.”

At the hearing itself, the Tribunal allowed proceeding to continue, as it was Hallam Estates Ltd that was the party to the proceedings, although it appeared to have absented itself from any engagement whatsoever, and not the Stainers in any capacity other than as leaseholders.

But to return to the “attack”: we now have the claim that the attacker/s were in Court. This was followed up when Hallam Estates filed their unsuccessful appeal against the decision issued on July 5th. Drafted by Kerry Bretherton QC under instructions from Andrew Duncan (yes, him again!). This appeal is of interest in that the location of the attack and its date has now moved, as underlined below:

• “On the evening of 25 January 2018 Mr Stainer, was assaulted in a storage room he uses to store a computer and printer, which is off the lobby area near the flat in which he resides in The Grand. He found individuals in that room and was then attacked and sustained injuries. Mr Stainer is of the opinion that the intruders had waited to beat him up, as opposed to seeking to escape when they were disturbed.“

Ms Bretherton also claims that “Mr Stainer attended hospital and photographs of his injuries are attached to this application.” The evidence in regard to the hospital attendance was never produced during Mr Duncan’s attempts to secure an adjournment, despite repeated requests from the applicants in the case. These photographs had not been produced previously.

Further in her submission, Ms Bretherton drops another bombshell, referring to Mrs Stainer’s stress condition, again our underlining:

• “This was exacerbated by her belief (whether that belief was correct or entirely incorrect) that the assault had been by someone with sufficient interest in the broader dispute involving the freeholder and leaseholders of The Grand that the individual had been present at an earlier hearing of this case.”

So, we’ve now gone from two unknown assailants, to persons who were in Court, to someone with a direct interest in the case. Worse is to come!

The latest iteration comes from direct statements by Mr Stainer to some Grand residents that the one of the attackers was a resident of the Grand.

Meanwhile, how goes the criminal investigation? In the public interest, we published the images allegedly captured on the Grand’s CCTV of the attackers. This led to claims that we’d obtained them illegally, and the chairperson of AORG was threatened with legal action by John Frayne, the ex-policeman who heads up FAPAC:

• “Disclosure of personal information from the FAPAC data base by a member to a non-member is contrary to the provisions of the data protection act. If you try to persuade people to make an unlawful disclosure you are breaking the law.”

Seeking confirmation of what was already in the public domain, namely that images of the alleged perpetrators had been circularised to FAPAC members, was not a breach of the Data Protection Act as anyone with a working knowledge of the Act would know.

So, what do we really know about this attack? We know that residents in the Grand were shocked that an attack took place in their own building – it wouldn’t help those of a nervous disposition sleep at night. There has been no apparent ‘beefing up’ of security e.g more CCTV (which would need planning approval), no additional lighting and no new security appraisal by, for example, the police. There have been no new arrests, no charges laid against anyone. The investigating officer wrote to Mr Stainer on June 8th stating that he was “awaiting a charging decision” but that “the CPS is very busy at the moment and some charging decisions are taking a couple of months to come back to us.”

Really? The last communication between the police and a Grand resident dated July 29th stated:

• “Thank you for your email. Please let me reassure you the contents of which are noted and will be assessed accordingly with the investigating officer for the purposes of relevance and disclosure.”

Public interest demands some simple answers because there is some scepticism surrounding this entire affair and its consequences, especially because of the way it was used in a civil case to seek to delay proceedings, and because Hallam Estates and the Stainers claimed unsuccessfully that failure

to grant an adjournment violated their rights under Article 6 pursuant to the Human Rights Act 1998, which for the avoidance of doubt states:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.“

In this particular case, as the Tribunal determined, the non-participation of the freeholder of the Grand was their choice, and their choice alone.

The Shepwayvox Team  Journalism for the People NOT the Powerful