London Borough of Southwark v Connor & Ors

This is a claim brought by the London Borough of Southwark (“Southwark”) against the defendants, Terrence Connor (“Mr Connor”), Noel Campbell (“Mr Campbell”) and Brixton Tipping Services Limited (“BTS”) alleging that each colluded, between 2005 and May 2008, in the unlawful tipping onto a cemetery site owned by Southwark of very large quantities of waste materials, said in opening to be estimated at 18,000 tonnes. In closing submissions, Southwark’s losses (representing costs of removal of the allegedly offending material from the site to date) were stated to be £1,522,544. The original pleading specified a sum of £5,276,000 for the same work; further unquantified losses were originally intimated in respect of two other sites.

The cemetery with which the claim is now solely concerned is variously known as “Camberwell New Cemetery” or “Honor Oak Cemetery”; I shall tend to use the latter name. At its inception in January 2009, the claim raised similar allegations against the defendants in respect of two further cemeteries, known as “Camberwell Old Cemetery” and “Nunhead Cemetery” (“COC” and “Nunhead” respectively). The claims also specified the unlawful tipping to have taken place at all three sites at times unknown between 2003 and 2008 – paragraph 8 of the Particulars of Claim of 23 February 2009.

The additional allegations in respect of COC and Nunhead and in respect of tipping at all three sites in 2003 and 2004 were formally abandoned very shortly before the trial, although Southwark continues to say that it still has real suspicions that the defendants were also implicated in unauthorised tipping at COC and at Nunhead. The consequences of the abandonment of the wider claims, so far as costs are concerned, were left over to be dealt with after the current trial.

The abandoned claims are also material to applications by the Defendants (also before me at trial) for an order discharging interim freezing and search orders made, on applications without notice, to Mr Justice Wyn Williams at the inception of the proceedings on 9 January 2009 and continued by me on notice on 26 January 2009. At the time those orders were made Southwark’s claim was in respect of alleged unlawful tipping at all three sites, estimated and pleaded at that stage to amount to a total weight of about 45,000 tonnes. On abandonment of the claims in respect of COC and Nunhead the estimate of the waste at Honor Oak was amended to 26,000 tonnes and, as already mentioned, it was further revised in Southwark’s written opening to 18,000 tonnes.

In addition to the claims of unauthorised tipping, Southwark also makes claims against the defendants in respect of the construction of a yard or compound at the Honor Oak site and the conduct of various activities there by Mr Campbell and/or BTS. It says that those defendants used the yard for the storage of vehicles and equipment, for using equipment such as screeners and concrete crushers and the processing and dumping of waste on a large scale.

The surviving claims concern, therefore, a mound area at Honor Oak (called at the trial “Area 1”) and the yard area at the same cemetery (called “Area 2”).

Mr Connor was employed by Southwark for very many years from 1977. His employment ceased on 15 June 2008, after a short period of suspension beginning on 27 May 2008. He had originally been employed by Southwark as a grave digger, but became cemeteries foreman in 1986 and Cemeteries and Crematorium Supervisor in 1989. In April 1999, Mr Connor entered into a new contract, giving him the title of “Unit Manager Bereavement Services”. Latterly, under a contract dated 1 April 2007, Mr Connor became more simply titled “Cemetery Manager”. For practical purposes, for the period with which these proceedings are concerned Mr Connor was manager of all three cemeteries mentioned above. From April 2007, however, he ceased working full time, but continued to work 2 days per week. He lived at a lodge house at Honor Oak Cemetery for many years until January 2010.

Mr Campbell began work as a heavy goods vehicle driver, working for his brother-in-law, after having been employed previously in the building trade. In 2004 he caused the incorporation of BTS as a vehicle for a business of his own. He has lived at all material times near to Honor Oak Cemetery and met Mr Connor when, in 2004, Mr Campbell’s son was killed in a road traffic accident and was interred at COC; they had been previously more loosely acquainted through a local football club.

The essence of Southwark’s claim is that, in return for corrupt payment, Mr Connor permitted the activities of Mr Campbell/BTS which have been described above, allowing the tipping of waste at Honor Oak (and, as originally alleged, at all three cemeteries) and the construction of, and operations at, the yard area already briefly described. Southwark claims from the defendants total costs of removal of the waste and remedial works from the site stated to be £3.2 million. The balance over and above the £1,522,544 already mentioned is a claim which arises if the activities of the defendants caused the mound in Area 1 to be become unstable; that issue has been deferred by an order made by me 14 May 2010.

Southwark also claims accounts of any secret commissions paid to Mr Connor.

The causes of action relied upon are trespass, nuisance, breach of contract and breach of fiduciary duty by Mr Connor, nuisance trespass, inducement of breach of contract and dishonest assistance in breach of duty against Mr Campbell and BTS, and conspiracy.

In summary, the defences raised are as follows.

Mr Connor says this in paragraphs 5 to 7 of his Re-Amended Defence:

On behalf of Mr Campbell and BTS the following is pleaded in paragraphs 5A to 5C and 5E of their Amended Defence:

In addition, Mr Campbell and BTS allege that the proceedings have been brought by Southwark in bad faith, without adequate evidence to support them, as a tactic to shield Southwark from a potential prosecution by the Environment Agency: see paragraph 19 of the Re-Amended Defence. These allegations, which developed in the course of the trial (which began on 14 June 2010) gave me cause (on 25 June) to direct the defendants to plead their precise case about them. I then directed an adjournment of the trial to permit the parties to re-marshal their materials accordingly. At a directions hearing on 14 July 2010 Counsel for Mr Connor indicated that his client did not intend to pursue these allegations as a defence to the claim, but Mr Campbell and BTS continued to do so.

The trial resumed on 6 October 2010. The evidence was concluded on 25 October. Written submissions were prepared and I heard Counsels’ final oral arguments on 16 and 17 November.

The parties accuse each other of dishonesty in a number of respects. In most respects, these allegations in their most extreme form have not been made out, but as will emerge I have found some witnesses evasive, some untruthful in their evidence and some both of these things.

The evidence in the case has been wide-ranging and in preparation of this judgment I have re-read a very large number of the witness statements and of the transcripts of oral evidence. It will be understood that in order to keep what is inevitably a long judgment in some proportionate length, it is impossible and unnecessary to refer to every aspect of the evidence and argument or to decide every side issue that arose between the parties in the course of the trial.

The early history of the three cemeteries up to about 2000 is largely uncontroversial and can be taken from the contemporary documents and the witness statements of Mr Connor and of Mr Des Waters, an officer of Southwark, whose official title is “Head of Public Realm”, a post within Southwark’s Environment and Housing Department. It is only necessary to give a summary of this uncontroversial material here.

The cemeteries are situated within short distances of each other in the SE22 and SE23 postal districts of south-east London. Honor Oak, with which the claim is now alone concerned, includes an area of some 6.5 acres which was formerly (until about 1995) the site of a horticultural nursery and is referred to frequently in the documents and in the evidence as “the Nursery Site”. Part of the site had also been used at one time as a fireworks factory.

The larger cemetery land (including the Nursery Site) had been originally acquired in 1901 by the then local authority, Camberwell Council, for use as a burial ground. During the 1950s some of the land was given over to sports and recreational usage, although apparently this was originally done with a view to its ultimate recovery as a cemetery as and when required. That requirement arose in the late 1980s or early 1990s and three acres of recreation ground were taken back again as an addition to the cemetery. This was not universally popular. However, pressure for burial spaces, both in the borough and in London generally, continued to be acute and, as I was informed, it remains so.

In October 1996 Southwark’s Director of Regeneration and Environment addressed to a Council Committee a report on burial provision within the borough for the next 25 to 50 years. The report identified three steps that could be taken to meet the anticipated need. Paragraph 5.1 of the Report was in the following terms:

As for the development of public graves the report continued:

The relevant committee’s decision on 9 October 1996 was as follows:

Mr Connor’s evidence was that following this decision his team began to deposit the spoil (of about one tonne per grave) onto Area 1 at COC. In his view, however, there was still sufficient space to meet demand for the next five years because he thought that the additional three acres at Honor Oak would come on stream within a reasonable period. There was, therefore, no immediate hurry to implement the proposals at COC.

In August 1999, Mr Connor reported to Mr Keith Weir, the Head of Environment Management (and Mr Waters’ predecessor), in a paper entitled Future Burial Survey on progress with regard to the two potential new burial areas at COC. He wrote this:

In 1998 or 1999 the horticultural buildings on the Nursery Site were demolished. The resultant detritus was not cleared immediately. What happened to it is in dispute.

By 2000 it had become apparent that the cost of works required at the Nursery Site, in order to provide the proposed new recreational areas, had become prohibitive and on 14 November 2000 a council group called the “Honor Oak Nursery Site Steering Group” voted in favour of the use of the Nursery Site for burial purposes. It appears that after that date works were begun in order to make part of the Nursery Site fit for burial purposes. The process by which that was done is in dispute between the parties.

It is clear from the witness evidence and from photographic material that an overgrown area of the Nursery Site, which had been to the north of the demolished nursery buildings, was cleared of growth and the remains of the buildings were either (per the claimant) moved from site or (per Mr Connor) were pushed over to the east of the site to form the initial part of what was to become the mound on Area 1.

Mr Connor told the court in written and oral evidence that the demolition residue was moved to the east of the site by a Mr EK Lett who ran a business called “EK Lett Transport”. It is common ground that it was Mr Lett who cleared the initial burial area on the Nursery Site (to the west of Area 1) and that burials began there in about 2001.

Mr Lett was interviewed by the claimant’s solicitors in 2009 with a view to him being a witness in these proceedings. However, by the time of trial his health was such that he was unfit to attend court. Accordingly, his draft witness statement, and the solicitors’ notes of attendance upon him, were put in evidence and proved, in written and oral evidence, by Mr Angus Wakeman from the firm of solicitors acting for Southwark in the case.

According to his draft statement Mr Lett was to say that he had worked for Southwark on various jobs from about 1999. He said that he was engaged to clear fly-tipping from various sites within the borough, but this never involved the cemeteries. He said his name was passed to those responsible for cemetery maintenance and he supplied to Southwark topsoil, equipment and containers. He supplied topsoil to Honor Oak.

In the draft statement, Mr Lett was to say that he thought the clearance of the burial area had been done in 2002, although it is now thought to have been rather earlier, as already mentioned. The statement refers to the demolition rubble from the old buildings. He told the claimant’s solicitors that he agreed a price with Mr Connor for the work and used lorries to clear the hardcore; about 80 loads (in 20 tonne lorries) were then used, he said, to take the materials to a crushing or waste disposal site at Greenwich. However, while there are in the papers invoices for other work by Mr Lett, there seem to be no invoices for this work. Mr Lett, of course, could not be cross-examined.

In oral evidence, Mr Connor was adamant that the demolition residue remained on site and was simply moved by Mr Lett from the new burial area to what was to become the mound in Area 1. Mr Connor was taken to two memoranda written by him in 2001. The first dated 30 April 2001 contained the following passage:

Mr Connor said that when he spoke of the residue being “removed” in these documents, he meant “removed” from the intended burial area to another part of the Nursery Site, i.e. what was to become Area 1. In this respect, he was able to point to the contrast he made in the first passage quoted above between the demolition material generally and the red roof tiles which he said clearly had been “removed from site” (emphasis added). In cross-examination he said, “…none of the stuff was taken away. The only things that were missing was some piles of roof tiles and they had been taken away…”. In his statement Mr Connor said that once the rubble had been moved to the east of the site it was covered by the natural materials cleared from the 1.2 acre new burial area.

Mr Black, the grave-digging supervisor, supported Mr Connor’s evidence on this. He said:

When referred to Mr Lett’s statement about the removal with 80 lorries, Mr Black said this:

On this issue, we have some assistance from the aerial photographs. A picture said to date from 1998 or 1999 shows Area 1 before any disturbance. The next photograph, dating from 2002-2003, shows the new burial area cleared and furnished with footings for headstones. Area 1 has a different appearance from the earlier picture, showing some evidence of movement on the previously green site. Something appears to have happened there but it is not clear what it is. In my judgment, it is not possible to say absolutely clearly one way or another from this photograph whether or not the movement shows a tipping of demolition materials, although it is clear that the northern end of Area 1 shows signs of disturbance which are not visible on the earlier picture. It is possible that this picture does indeed show the demolition material that has been moved to the top of Area 1 in contrast to the 1998/9 photograph where that area appears undisturbed.

There is also in evidence a signed witness statement from a Mr Michael Oliver Heavin (known as “Ollie”). Mr Heavin unfortunately died before trial. He worked for a plant hire company that provided machinery to Mr Lett. He appears to have been involved in the initial clearance works at the Nursery Site. While describing the work done in broad terms he does not refer to the removal of any demolition waste from this site, let alone 80 lorry loads, although he does agree with Mr Lett’s general description of this type of work in his draft statement where Mr Lett speaks of material generally being removed from such sites for crushing elsewhere. Mr Heavin, while endorsing Mr Lett’s general description, does not refer to Mr Lett’s statement about the 80 lorry loads of waste being removed.

Finally on this issue we heard from Mr Peter Evans, the construction manager employed by FM Conway Limited, who has been overseeing works that have been carried out on Area 1 at Honor Oak since the inception of these proceedings in 2009. In his witness statement, Mr Evans had said that he had been asked whether there had been found in Area 1 any materials that could have come from the demolition of buildings or greenhouses. He said there had not. In supplementary evidence in chief, however, he said that when making his statement he had been thinking of glass from greenhouses but that there was indeed brickwork in the area but that he could not say where it came from. In cross-examination he said that brickwork had certainly been found, particularly towards the north of the site and towards the bottom of the mound at Area 1. This is the very area which in the 2002-3 photograph appears to have been disturbed. A little later he said that the bricks looked like demolished buildings and he identified the type of material as that shown in photographs 74, 76, 82 and 83 in trial bundle D2.

In my judgment, Mr Connor is right and that the materials from the demolished nursery buildings were indeed pushed into what became Area 1. Mr Evans’ oral evidence is particularly compelling in this respect and the photographs support this view. I accept Mr Connor’s evidence explaining the use of the word “remove” in his memoranda of 2001. I think that it is clear that in the first passage cited from these above he is contrasting what happened to the roof tiles from the demolished buildings in 2001 with what happened to the rest of the remains. He was clearly annoyed at the time that the demolition job had been only partially done and that he had been left with piles of rubble on site while potentially useful roof tiles (no doubt with some value) had gone. (Footnote: ¹)

In the circumstances, I do not accept Mr Lett’s untested statement that the materials were moved off site, particularly as it did not draw specific support in Mr Heavin’s statement. Further, while there is paperwork for some works by Mr Lett at this time, there is nothing covering the removal from site of 80 lorry loads of demolition waste to be included in work for which he said he agreed a price with Mr Connor. Although at times I considered Mr Black’s evidence unreliable, I thought his comments on this subject, about the absence of budgets to effect the removal and that this led to the materials being left on site, rang entirely true.

It is not now disputed that, after the first part of the new burial area at the Nursery Site had been cleared for use, Mr Lett was instructed by Mr Connor to build up Area 1 to make further burial space available. If the land was to be used for this purpose it had to be “made up” because it was thought to be contaminated from the earlier use as a fireworks factory and could not therefore be opened up at the existing ground level for burials. Mr Lett’s draft statement says that the ground was built up to a height of about 7 feet, using “muck, similar to material that you would dig out from your front garden or excavations on building sites”. He says that he did not use lumps of concrete or building material. In this respect, Mr Lett is not supported by the evidence from trial pits dug in 2008 which suggest strongly that such material was found in the lower depths of Area 1, some which must derive from Mr. Lett’s work.

Mr Lett told Southwark’s solicitors that after completing the making up of the new ground it was levelled and covered with topsoil; a row of conifer trees was also planted on the east of the site, where it borders the railway, to make the area look more presentable.

Mr Connor, of course, says (and I find) that this material was laid over the top of the demolition remains from the old nursery buildings. According to Mr Connor’s evidence, this work was done over several weeks in the summers of 2002 and 2003. An aerial photograph from October 2003 shows a substantial change to Area 1 and clear evidence of substantial deposits upon it. A photograph from March 2003 shows the land in a similar condition to that described in paragraph 29 above. This suggests that Mr Lett’s work was probably carried out for the most part in 2003.

Initially Southwark’s claim included a claim in respect of alleged unlawful tipping activity at Honor Oak from 2003 – this seems clear from the claim that was initially made for £5 + million for removal works; the claim is now confined to 2005 onwards. It is not now suggested, therefore, that Mr Connor acted without authority in causing the making up of Area 1 in 2003.

Mr Connor’s immediate manager at this time and until Mr Connor left Southwark’s employment was Mr Jon Sheaff. Mr Sheaff held the relevant post (Manager for Parks and Open Spaces) officially from August 2003, but he was “for a couple of months prior to August 2003…acting up into that role following the resignation of Mr Burton who had been the previous incumbent”. Later in evidence Mr Sheaff narrowed the date of Mr Burton’s resignation to about May 2003. Mr. Sheaff’s superior until April 2007 was Mr Jay Yeats and, thereafter, Mr Waters.

Mr Waters did not deal in his witness statement with Mr Lett’s 2003 work at Honor Oak; Mr Sheaff did not do so in his first statement either. In a second statement, having had sight of Mr Connor’s statement, Mr Sheaff stated that he had no knowledge of the work at Honor Oak and did not consent to it. Mr Connor states in his verified defence that his superiors, including Mr Sheaff (and Mr Roy Wayre) were aware of this work being done.

In his interviews with Southwark’s solicitors in 2009, Mr Lett said that after the work was completed on Area 1 at Honor Oak he “spoke with Jon Sheaff and Terry Connor and he was asked to level out the area at Camberwell Old Cemetery in the same manner in which he had done at Honor Oak” (emphasis added), clearly implying, if correct, that Mr Sheaff knew of the Honor Oak works by September 2003 at the latest. In oral evidence Mr Sheaff denied having this conversation. Before addressing the question whether this conversation did indeed take place it is necessary to consider the evidence about what did happen at COC in 2003.

There is no doubt in early September 2003 works for the making up of new burial ground were begun at COC. There is trail of e-mails in that month beginning with a message of 17 September 2003 from a Councillor (Cllr. Humphreys) to Ms Gill Davies (then Director for Environment and Leisure at Southwark, and now Strategic Director of Environment and Housing). The Councillor was enquiring into a complaint arising out of the works which had been made to him by the Chairman of the East Dulwich Society. The Councillor’s enquiry related to “roadway maintenance tippers who are entering the cemetery…and depositing tons of rubble”.

Ms Davies passed on the enquiry, without comment, to Mr Sheaff who in turn forwarded it to Mr Connor and a Mr Andy Chatterton. Mr Chatterton passed it further to another council official, Mr Stavros Valiris. On the following day (18 September) at 8.05 a.m. Mr Connor replied (with a copy to Ms Davies) as follows:

In evidence, Ms Davies would not confirm that she had seen Mr Connor’s reply of 18 September 2003. She would not even accept that it was a serious complaint that had been made by the Councillor, which clearly it was. She said,

I think it is clear that Ms Davies must have been well aware of this Councillor’s enquiry at the time and of the responses that were being given. As will be seen below, there was a further enquiry from a Councillor and a press enquiry – both of which reached Ms Davies’s office and the records show that she approved the ultimate response to the press. Her evidence on this subject (and in response to earlier questions as to whether she appreciated the potential illegality of the works – Day 13 pp.12-15 and 26-28) was evasive and unsatisfactory.

It can be seen from the e-mails that both Mr Connor and Mr Valiris referred Mr Sheaff to the discussion at a finance meeting earlier in the month. Mr Sheaff agreed in oral evidence that he would have chaired that meeting. In his first witness statement Mr Sheaff said this about the meeting:

Mr Wayre, who attended these meetings, did not recall the discussion, but did not think that that was surprising given the passage of time. The making up of ground at COC was (he said) referred to, in a routine matter of fact way, at a meeting which he attended 29 September 2003 and is recorded in the minute with a response by him. He agreed in evidence that this suggested that he knew at that time that the land at COC was being made up.

It seems clear to me that the matter was discussed at the meeting early in September attended by Mr Sheaff; that is why he raised no objection to the fact that works were being carried out when Mr Connor and Mr Valiris referred back to that discussion when the first complaint came in from Councillor Humphreys.

The second Councillor complaint, made to Mr Connor about the works at COC, was on 18 September 2003 from Councillor Banya. At 11.12 a.m. on that day, Mr Connor responded (with copies to Mr Sheaff and Ms Davies) in these terms:

On 19 September 2003 Mr Connor drafted a letter to residents about this subject and copied it to Mr Sheaff. The draft included the following:

The matter did not rest there. As already mentioned, there was a press enquiry. This was on 22 September 2003. The Communications Officer at Southwark raised the matter again with Mr Connor, Ms Davies and Mr Valiris (among others), with copies to Mr Wayre, Mr Sheaff and Mr Yeats. Mr Connor’s response (copy to Mr Sheaff) said this:

This response from Mr Connor was sent by the press officer, Ms Lynn, to Mr Yeats and Ms Davies, with copies to Mr Wayre and Mr Valiris (D1/4/718G) Mr Yeats raised the matter separately with Mr Connor (with a copy to others including Mrs Davies) and Mr Connor responded referring again to the finance committee meeting discussion already mentioned.

The response to the press enquiry, approved by Ms Davies, said this:

Ms Davies said in evidence that she made no checks to see whether the response given to the newspaper was accurate, but relied upon a briefing from Mr Yeats who had gone through what Mr Connor had told him which was “in this note from Terry, dated 22 September” (referring to Mr Connor’s message to Mr Sheaff). In answer to a question of mine, Ms Davies said that the press office had the information that “Health and Safety regulations are being rigorously followed” from a direct conversation with Mr Connor. I do not accept that they did; there is no evidence of this; it is inherently unlikely, and it was not suggested to Mr Connor when he gave evidence that he had any such conversation with anyone in the press office.

When I indicated that I did not find this evidence satisfactory, further enquiries were made by Southwark. These showed that the press office told Mr Yeats and Ms Davies that they would draft a reply to the enquiry with reference to Mr Connor’s response of 22 September. Mr Howe QC for Southwark told me:

The matter was aired again when Councillor Humphreys wrote once more to Ms Davies on 4 November 2003. This time he was complaining about the nature of the deposited materials and about Council procedures, in view of the apparent reliance in 2003 upon a decision taken as far back as 1994 (actually 1996). The letter was passed to Mr Connor who drafted a reply for Ms Davies. The draft included the following:

Ms Davies did not accept in evidence that she had seen the reply at the time. She gave this explanation:

In his first witness statement, Mr Sheaff refers to Mr Connor’s stated reliance on the decision taken in committee in 1996 and goes on to say,

I return to the question of what was known “up the management tree” from Mr Connor about Mr Lett’s works at Honor Oak in 2003. I am not confident that Mr Lett was accurate in his recollection that Mr Sheaff was involved in the original instruction to him for the making up of Area 1. Mr Sheaff denied that he was and Mr Connor does not say that he was. Further in the 2003 documents there is no reference to direct conversations with Mr Lett in which Mr Sheaff was involved.

Mr Page for Mr Campbell and BTS put it directly to Mr Sheaff that he knew from mid-2003 that Mr Lett had brought material onto Area 1 to build it up. Mr Sheaff denied this. The questions and answers were as follows:

Unfortunately, I found Mr Sheaff evasive in his answers to these questions, in particular when giving the long answer quoted above. He clearly knew directly from Mr Connor that work had been done to move substantial materials onto the railway side of the site, but he was unwilling to give even an approximate date for when this information had been communicated.

When asked a little earlier (Day 10 p.78 lines 10-18) whether after May 2003 he would have had authority to give approval for the making up the land at Honor Oak he said, “Yes, subject to the legality of that sort of operation, yes”. However, he said that he would not have approved without further information, including information as to the nature of the materials to be used and a test for contaminants and advice from other officers. He was then asked why he had not sought such a test or such advice with regard to what had been done at COC in September 2003, which he clearly did know about. The answer was, “I can’t say – find any record of this on this evidence. I would agree with that, but I would reiterate that I placed - trusted Mr Connor in this instance”. He was then asked some further questions to which the answers also seemed to me to be evasive. They were these:

Mr Sheaff acknowledges that he was told by Mr Connor at some stage about the movement of material onto Area 1. I do not accept that he is unable to give an approximate date for this or that Mr Connor’s remarks would have been as limited as Mr Sheaff was prepared to accept. In my view, even if Mr Sheaff was not directly involved in commissioning Mr Lett’s works in 2003, he knew about them at or about the time when they were done and had no objection them being done. They were entirely consistent with Southwark’s need to provide new burial space and in accord with the policy decided upon by the steering group in 2000.

The matter can be further tested by the reaction of Mr Sheaff and others to the complaints relating to COC later in 2003. There were rumblings about the nature of the materials being tipped, but no one was particularly concerned even about that. The tone of all the e-mails was simply a desire by all to answer the enquiries from the councillors and the press and to make them go away. There was no hint from anyone (apart from one Councillor) that the work was being carried out without proper authority; that hint was firmly rejected by Mr Sheaff himself, in his e-mail of 19 December 2003, written on behalf of Ms Davies and copied to her personal assistant for her attention. I am quite satisfied that both Mr Sheaff and Ms Davies were fully aware of what was going on at COC in the last few months of 2003 and were agreeable to it being done.

Equally, I am quite satisfied that the work done by Mr Lett at Honor Oak in 2003 was known to Mr Sheaff and was done without objection by anyone higher up the management tree at Southwark because it was consistent with the policy to make up ground at the cemeteries to provide more grave space.

After the March 2003 photograph of the Honor Oak site, to which I have referred above, the next photograph that we have is dated 2 September 2005 and shows Area 1 apparently beginning to grow over with grass or foliage, save for a relatively small darker area to the south which still appears to be bare. This is consistent with Mr Connor’s evidence that from completion of Mr Lett’s work the gravediggers continued to deposit grave spoil in Area 1, as there was no budget to dispose of the material off-site. Mr Page QC submitted that the photograph was not sufficiently reliable to determine that “greenery” was emerging on Area 1 at this time. I agree that the photograph is not of the highest quality but, on balance together with the other evidence, I find that this is indeed what it shows.

The next aerial photograph in the series (trial bundle D2/11A + blow-ups at 11B and 11C), although undated by the software from which it was generated, can be reasonably accurately dated as having been taken between January and March 2006. This photograph shows the yard on Area 2 at the Nursery Site apparently newly constructed. The earth walls forming its perimeter can be seen clearly and the interior of the yard is entirely empty save for one lorry and a single piece of machinery, the nature of which cannot be readily identified from the photograph. By this time Area 1 shows signs of movement over its surface and the foliage, to be seen in the 2005 photograph, has virtually disappeared. Also on Area 1 there is a row of three (or perhaps four) “bins” or skips, which Mr Campbell accepts were owned by him or BTS and two large piles of light coloured material, possibly concrete or rubble. Mr Campbell said in evidence that these piles had been moved from Area 2 while the yard was constructed and were moved back again when the yard was completed.

Mr Connor says that following the funeral of Mr Campbell’s son, the family were grateful for the manner in which the arrangements had been carried out at the cemetery and were anxious to offer practical help in the running of the cemeteries. Mr Connor said a money donation was offered by Mr Campbell but he had declined this as it would merely get swallowed up in Southwark’s budget and would not go in any way towards the direct upkeep of the cemetery, which Mr Campbell wanted to achieve by his gift. Mr Connor says that he knew that Mr Campbell was in the waste disposal business and he asked whether it was possible for him to get materials which were needed for the cemetery pathways. He says that Mr Campbell offered free of charge crushed concrete and “scalpings” (tarmac pieces recovered from road surfaces and the like). Mr Campbell, it is said, then delivered these materials to the site and left them on Area 2.

Mr Campbell’s account of the arrangement, given in his witness statement, is this. He too mentions his gratitude to Mr Connor and his staff for what had been done with regard to his son’s interment and his offering of a donation which was rejected for much the reason that Mr Connor identifies. He says that in 2005 Mr Connor asked him whether he could supply some topsoil to the cemetery for which Mr Connor did not have a budget provision. Mr Campbell says that he agreed to do this and delivered some 20 to 30 loads of topsoil free of charge.

Mr Connor says that the yard came to be built in the following circumstances. There was a problem in maintaining the tracks on the cemetery digging machines. The diggers were kept in garages some 250 yards away from where they were needed on the new burial area. When these were moved on the cemetery paths and roadways damage was caused to their rubber rolling tracks. The machines could not be kept closer to the site in the open because of the dangers of vandalism. Mr Campbell then offered to construct the compound or yard near to the burial ground. The yard was constructed by erecting earth walls on three sides from materials brought principally from off site and by “blinding off” the area with scalpings. I take that to mean laying a floor of tarmac chippings which is consistent with what one sees in photographs 11A – 11C.

Mr Campbell says that on one of his visits in 2005 Mr Connor pointed out to him the mound of “spoil” bordering the railway site and told him that it been formed from material deposited by Mr Lett with the Council’s approval. He says that Mr Connor asked him to assist with pulling back this mound to prevent it slipping onto the railway. He said he agreed a price for this work with Mr Connor. In a rather confused passage, before describing the construction of the compound, Mr Campbell then says this:

At various stages in his oral evidence Mr Campbell said that his arrangement with Mr Connor was that he (Mr Campbell) would get the use of one side of the new yard (the right hand side) and Mr Connor would have the use of the left. He was asked why this feature of the agreement did not appear in his witness statements. His answer was that he did not think that it was necessary. The answer was probed and Mr Campbell gave a series of unsatisfactory answers, demonstrating to me that (as Mr Howe put to him) in this, as other areas of his evidence, he was making things up as he was going along.

Mr Campbell also states that he was asked to clear further land for new graves in January 2006 and also to work on an area described in the statement which seems to coincide with Area 2. The statement continues:

Photographs 11 A-C in our series, which consist of a single photograph and 2 “blow ups” of it, give a very clear picture of the newly constructed yard and Area 1 in the early months of 2006. This can be fairly accurately dated to this period because in the photograph a further smaller grave area on the site, cleared in about March 2006, is still covered with trees and other foliage. As already noted, Mr Campbell says he was asked in January 2006 to clear this area.

Mr David Williams who seems to have carried out the bulk of the construction work to make the yard said that the work was done between January and March 2006. He said it would have taken only about one month had he not been interrupted by having to stop during the regular funerals that were being carried out on the neighbouring site.

Moving slightly ahead of the chronology, the next photographic evidence that we have, following the building of the compound in Area 2, dates from later in 2006. This shows the extra burial land cleared by Mr Campbell and very substantial new activity on Area 1. Area 1 is shown as bare and scraped and at the north end of it there is a fairly tidily constructed wall in what looks like light coloured earth and/or other materials (D2/12). In the yard are a number of bins or skips of the same type as can be seen in photographs 11A-C from earlier in the year. There is also at one end of the yard a very substantial mound of dark coloured material, tidily stacked and reaching close to the top of the earthen walls in that area. By September 2006 (photograph D2/14) that mound had increased substantially in size and there are clear signs of further deposits on Area 1. Further activity and deposits on Area 1 are shown by a photograph, probably dating from late 2006 or early 2007 (D2/17A). Finally, from a photograph from early 2008 [D2/19], it seems that activity on Area 1 may have ceased and foliage has begun to grow over, but there appears very clearly a very large deposit of rubble onto that part of the yard where the pile of dark material could be seen on the earlier photographs. It seems from photographs taken in later 2008 that this rubble was simply tipped onto what remained of the pile of dark coloured scalpings shown in the earlier photographs.

Mr Connor said in evidence that he ordered scalpings and topsoil from Mr Campbell on a number of occasions and saw them in the compound. Mr Campbell denied that he ever dealt in scalpings. I find that Mr Connor is right about this and the supply of these explains the large pile of dark coloured material in the yard which one sees in the aerial photographs dating from 2006 onwards. Those scalpings were supplied by Mr Campbell and brought onto the site by him or at his direction. Mr Connor said that these arrangements with Mr Campbell enabled him to eke out a modest budget provided to him by Southwark that did not meet the cemetery needs. I find that Mr Connor is right about this. There is no other conceivable explanation.

Mr Williams’ description of his task was “to clear the mountain of tipping at the back of the cemetery and to make it into a yard”. He said that when he started “the area was full with construction materials such as hardcore, muck, bricks and the like”. He said it was overgrown with weeds. A little further on in his witness statement he said this:

Mr Connor said that the bulk of the material to construct the compound walls came from off the site and was brought there for that purpose by Mr Campbell. Mr Campbell said that the walls were constructed entirely from material on the site. However, the evidence is that the walls consisted of some 4,200 tonnes of soil and other material. It seems unlikely that such a large amount of the required material was simply lying around the relevant site.

Mr Connor told me that he saw lorries coming onto the site with the necessary materials. Later he said that his belief that the materials came from off site was because of the quantity that he saw there and that he had seen one lorry, not lots of lorries.

Other witnesses gave evidence about the materials on the compound site (Area 2) prior to the wall building. One of the grave-diggers (a Mr Smith) said he thought there was a covering of grave spoil about 2 feet in depth. Mr Dyer, a local funeral director who regularly visited in the course of his work, spoke of a mound of earth. Mr. Eamonn McClafferty, who told the court that in 2005 he had been interested in purchasing Area 2 for development said that he had inspected the site at that stage and had seen there “a mud mountain with up and down levels rising from 6 feet to 10 feet above road level”. (It is not clear which “road” was being referred to.)

Mr Black also said that the walls had been constructed from, or largely from, materials on the site:

Mr Timothy Spall, a local resident of long standing, said that he did not recall a mud mountain on Area 2 of the type described by Mr McClafferty. He said that he recalled the mud being concentrated on the “barrow, the long thing adjacent to the railway line…”.

This evidence is extremely difficult to reconcile. Mr Spall and Mr Dyer were clearly doing their best to recall the position accurately, although each was hazy at times in his recollection. Mr Connor’s evidence was to a degree contradictory, although he could have no personal interest in claiming that the materials came from off the site, effectively at his instigation. Indeed, his evidence was contrary to his own interest in this action. Mr Campbell’s evidence was categorical, but for reasons that I will explain more fully later, I found him to be an unreliable and at times untruthful witness. I do not accept Mr McClafferty’s evidence of the size of the “mud mound” as it seems clearly to be an exaggeration in its estimate when compared with the descriptions of other witnesses. For other reasons, to which I come later, I did not regard Mr McClafferty as an entirely reliable witness. I was also anxious about the reliability of Mr Black’s evidence. He was clearly closely associated with Mr Campbell. For example, the telephone contacts between him and Mr Campbell were far more extensive than those between Mr Connor and Mr Campbell in the relevant period. Mr Black also denied having keys to the yard gates, which seemed to me to be highly unlikely in the light of other evidence: see below.

The photographs do indeed demonstrate the very substantial size of the compound walls whereas the aerial photographs (while accepting the limitations of what can be derived from them for these purposes) give no indication of an accumulation of deposited earth and solid material of the quantity and quality ultimately discovered.

From the evidence given by various witnesses, Mr Page QC and Mr Howe QC attempted rival calculations of the depth of material that would have needed to have been available on Area 2 in 2006 to generate the quantity of material needed to construct the walls as they were found to be in 2008. I think that Mr Howe is right that the exercise is inherently unreliable for the reasons that he advanced in argument.

Again, in the light of this conflict of evidence, I accept Mr Connor’s account as being essentially truthful. I think that there was some material on site (mostly grave spoil) that had been dumped there by grave-diggers and probably other waste brick and rubble, being either some of the materials from the nursery (not moved to Area 1) or miscellaneous fly-tipping. However, I do not consider that it would have made up a mound of anything like the size suggested by Mr McClafferty or sufficient to construct the very substantial walls that were in fact constructed. I accept Mr Connor’s broad view that “the majority” came from off-site.

In the absence of an accurate measurement, I have to make a finding, on the balance of probabilities, of the proportion of the total that was brought onto the site. In my judgment, the proper proportion in the light of all the evidence is 70% of the wall materials.

As I understand the claim as now formulated, there is no claim made in respect of any removal of the floor materials from the compound: see paragraph 178 of Mr Howe’s closing submissions which refers only to the walls. Therefore, it is not necessary to decide how much of the tarmac covering came from off site although it is likely that all of it was imported there from elsewhere.

At some time in 2006 gates were installed at the entrance to the compound. In my judgment, this must have occurred at a fairly early stage after construction of the walls as otherwise the newly created area could not have served the purposes for which either Mr Connor or Mr Campbell contend it was created. Neither Mr Connor nor Mr Campbell told me how these gates came to be erected. Mr Campbell denied that he was responsible; Mr Connor said that he did not commission the erection of the gates either. He said that he had been told by Mr Black that gates were being put up and he went to the site and saw them being put up by “two Irish chaps” to whom he spoke, but that he supplied the padlock for them and kept the key so that he could have control over the yard. He said that he had not supplied any keys for that lock to Mr Campbell. His evidence was that Mr Black, the foreman or the gravediggers would open the yard in the mornings to get to equipment that they might need and would then leave the gates open for the rest of the day. If they did not need access to the yard it would be left locked and on such occasions Mr Campbell or his drivers would telephone to arrange access.

Mr Connor’s evidence about this was to a degree unsatisfactory, as can be seen by a series of questions and answers on Day 17: see the transcript for that day pp. 68 -75. His initial written evidence was that, so far as he was aware, he had the only key to the compound. He said that he had meant to put that statement “in the context of Mr Campbell never having his own keys” (Day 17 p72 lines 6-7). This no doubt led to Mr Hutchings’ submission that when Mr Connor had spoken of having the only keys he was speaking in the sense of “his team” having the only keys as opposed to Mr Campbell. It was suggested to Mr Connor by Mr Howe QC that the evidence about having the only set of keys was designed by him to give the impression that he had overall control of the Yard. Mr Connor denied this.

Mr Black said that the gates were put up by some contractors who were doing other work at the cemetery, namely putting in footings for headstones and making pathways; he assumed, therefore, that the gates were being erected at Mr Connor’s instigation. In cross-examination by Mr Hutchings, Mr Black said that his understanding was that this contract was “a proper job” which would have been invoiced and paid. However, no invoice for any such work has been disclosed by Southwark. Mr Black denied having any keys to the gates once they had been erected, but said that Mr Connor and the gravediggers had keys. The gravediggers who were called denied having keys and indeed denied going into the compound. They told me that the yard had nothing whatever to do with the operation of the cemetery. Mr Dyer, the local undertaker and regular user of the cemetery, had the impression too that the yard had “absolutely nothing to do with the cemetery”.

I find that the gates to the compound were erected on the instructions of Mr Campbell as part of the construction of the compound. It may be that Mr Connor supplied the first padlock. A key was probably kept by Mr Connor at the office. However, I am confident that Mr Black (and through him the gravediggers) and Mr Campbell all had ready access to a key or keys whenever they wanted.

Mr Connor says that he permitted Mr Campbell to store one or two “roll on/roll off” bins in the yard and an excavator and some scaffolding boards and poles. He said that the bins were used to bring in the materials which he needed for the cemetery. He insisted that he did not permit Mr Campbell to store up to 20 such bins in the yard, as Mr Campbell said in his witness statement that he had done. He was tested in these answers by reference to the numerous aerial photographs showing a large number of these bins in the yard on various dates and that he must therefore have been aware of the presence of more than the one or two bins which he was saying that he allowed. It was put to him that he was not being truthful about this because he was aware that Mr Campbell was conducting an illicit waste processing business from the compound. For reasons mentioned below, I do not think that Mr Connor was aware of what went on in the compound for at least the first year of its existence.

Mr Campbell would only acknowledge bringing to Honor Oak in 2006 eight to ten loads of topsoil and one or two loads of crushed concrete: B3/15/91; Day 18/94 lines 2-5. In an earlier part of his written evidence he had said that he had offered to Mr Connor “crushed concrete, using concrete already on site”. In oral evidence he insisted that he brought crushed concrete to the site and said that the earlier passage was referring to an occasion later in the history in 2007 when a concrete crusher was used on site. I found this explanation of the discrepancy unsatisfactory.

Mr Campbell said in written evidence that in 2007 he had brought onto the site “10 or 20 loads, maybe more” (of topsoil). He explained that for these purposes a load was 15 to 16 tonnes. When asked to explain the reference to “maybe more”, Mr Campbell said it might have been as much as 25 loads. He said that he or his drivers would go to the yard once or twice a day to “change bins”. He said that he tended to go there himself about two or three times per week.

Turning to storage in the yard, I have set out above what it is that Mr Connor says he permitted to be stored there. Mr Campbell said in his original statement that Mr Connor allowed him to store bins and machinery free of charge. In the same statement he said, referring again to the yard, that “I stored my dustcarts along with a 32 ton machines [sic] in that area”. In evidence in chief Mr Campbell changed the dustcart reference to “my one dustcart”. In cross-examination he said in passing that it belonged in fact to a “Mr Alan Waste” whose name had not, I think, been mentioned before. He was asked why he had said the dustcart was his; his reply was that he was responsible for it. He said it was brought to the site for welding work. He was asked whether he had permission from Mr Connor to bring this cart onto the site. Mr Campbell’s answers were as follows and I quote them as just one illustration among many of the unsatisfactory and evasive passages in his evidence:

Following some questions about the 32 ton machine (which it appears was the excavator brought on for construction work on the yard), Mr Campbell was asked whether he thought he had indefinite storage rights over the yard, and he replied (after some hesitation) that he thought he did. He said also that he had been given express permission to store about 20 bins in the yard and that that number of bins was present in the yard pretty continuously.

A little later Mr Campbell was asked about the following passage in his third witness statement:

In the end, he said the list given in the statement was not a complete list and that, “…paperwork is not my thing”. He told me that these items of building materials belonged to Mr McClafferty’s company Pacific Construction Limited; he said that he told Mr Connor that the materials were not his but Mr Connor did not object. Mr Connor denied this. Mr Campbell said in his oral evidence that these things were in the yard for about 10 months; Mr McClafferty said in his statement that the materials were there for about a month on a temporary basis. Later, in court, Mr McClafferty qualified this to say that some of the materials had been left behind but he had only recently become aware of that fact. I found neither witness reliable on this topic. Mr McClafferty seemed anxious to tailor his evidence to what he considered helpful to Mr Campbell. Mr McClafferty’s unreliability on this issue also coloured my impression of his evidence generally and in particular on the issue of what waste material and soil there was on the Area 2 site in 2005, which I have already covered above.

In May 2008, Mr Michael Dando, a council official charged (along with others) with investigating these matters, made a video recording of the yard area as it was at that time. Extracts of the film were shown to me in opening by Mr Howe. It showed, among the rubble and other rubbish in the yard, a vast array of miscellaneous items of general building equipment. At my request, Mr Page took instructions as to the nature, provenance and ownership of these various items and on 18 June 2010 produced a note summarising Mr Campbell’s case on these. It was drawn to Mr Campbell’s attention by Mr Howe that the new list covered a large number of items not previously mentioned by him in his witness statements. His ultimate explanation of the omission was that he did not consider it relevant until I had asked for the explanation after seeing Mr Dando’s video. I do not accept that.

Mr Campbell was taken item by item through the list produced by Mr Page and it was suggested to him that the video and the list showed an active waste tipping and processing operation. Mr Campbell’s reply was that the suggestion was “ridiculous”. In my judgment, as will appear, I consider that the evidence does show active waste tipping, but not necessarily processing. There simply is not the equipment present to conduct any significant processing.

In his witness statement, Mr Campbell’s explanation for the waste materials found in the yard was as follows:

In the end result, I reach the conclusion that the yard was constructed because Mr Connor was convinced that it would be of use for the purposes of the cemetery, including the storage of topsoil, crushed concrete and scalpings that he wanted and for the storage of some cemetery equipment. Mr Connor was also content that Mr Campbell should have some occasional storage facilities of the character that he describes. However, as with so much in this case, I have been left with the clear impression that, “given an inch”, Mr Campbell “took a mile”. I find that Mr Connor did not give permission for storage of any items by Mr Campbell beyond those for which Mr Connor accepts he gave his express consent.

Mr Campbell’s business activities and connections in the building, tipping and haulage fields appear to have been wide ranging. Mr McClafferty of Pacific Construction Limited and Mr Connolly of Prima Grange Limited, were two such connections. The precise nature of Mr Campbell’s business activities was never properly unearthed. His business records were few and far between, many of them (on his evidence) having been destroyed in mysterious circumstances in a fire in September 2008 or were (he said) with his accountant when his house was searched in January 2009 following the order made by Wyn Williams J. However, in correspondence with the accountants after inception of proceedings, they indicated (in a letter of 27 January 2009) that they did not hold any of the source documents relating to the business. Mr Campbell’s personal tax returns were also substantially in arrears for no obviously good reason. (Footnote: ²)

The only documents relating to the fire that were ultimately produced by Mr Campbell were so produced as a result of cross-examination, rather than voluntarily in the ordinary course of disclosure. These were some photographs of some fire debris and of a document with a police reference number on it. A little later in the trial, a record of a report of a fire to the police was produced. Mr Campbell’s evidence about these matters and the failure to produce documents was excruciating to listen to because of its evasive nature: see Day 18 pp.70-92; a classic example of this evasiveness can be seen in his refusal to answer directly a question of my own on this topic – Day 18, p. 82 line 24 – p.83 line 5.

I mention this aspect of the matter at this stage to explain why it is the precise nature of the activities conducted in the yard, resulting in the quite extraordinary scene filmed by Mr Dando in May 2008, cannot be fully stated. It suffices to say that my conclusion is that, as time progressed between early January 2006 and December 2007, Mr Campbell/BTS used the yard for whatever storage and tipping activity that met their needs from time to time. The product of those activities is fully depicted in Mr Dando’s video; Mr Campbell/BTS are responsible for what one sees in that film.

I have dealt so far with the question of the construction and the use of the yard at Honor Oak. What was happening in the same period on Area 1?

Mr Page (for Mr Campbell and BTS) was anxious to downplay the evidential value of the aerial photographs and I agree that, to an extent, one must be cautious in reading too much into them. One must be cautious also in taking the dating of them to be 100% accurate. Nonetheless, they do provide some very useful benchmarks in assessing the state of the relevant areas from time to time and the dating has not been shown to be significantly inaccurate. It does not require expertise to decide what the photographs show, as long as one is aware of the limitations.

In the present context, I consider that the contrast between the photograph at D2/11, probably taken in September 2005, on the one hand and those at D2/11A-C and D12 and 13 taken in 2006 is significant. D2/11 shows an apparently grown over site at Area 1 and shrubbery on the yard site. The later photographs (D2/11A-C, 12 and 13) show the yard, fully constructed and in active use; Area 1 scraped over, white in colour and apparently prepared for some purpose or other. It seems to me that this tells of co-ordinated and essentially simultaneous activity on the two parts of the site. By the September of 2006 it appears from the photographs that further tipping activity has occurred: see D2/14 and 15.

Mr Campbell was shown the photographs at D2/11A-C and had to accept that the four large bins shown on Area 1 belonged to him. He said that the piles of light coloured materials shown on the same photograph on Area 1 were simply materials moved to Area 1 on a temporary basis while the yard was being constructed. However, there is no sign in the photographs from later in 2006 of those materials having been moved back into the yard. On the contrary, those later photographs show bins and other equipment and the tidily stored dark (not light) coloured material, probably the tarmac scalpings to which I have already referred.

I agree with Mr Howe’s submission, in paragraph 99 of his written closing submissions that Mr Campbell’s evidence on this (which he there quotes) was entirely unsatisfactory and, in my judgment, that evidence was simply untruthful.

Once Area 1 had been prepared in the manner shown in photograph D12 further tipping was carried out. That is readily apparent from the later photographs and it is confirmed by the oral evidence of Mr Mick Coomber and Mr Karl Underwood, employees of Gristwood & Toms Ltd, a tree surgery company, that operated from another yard at the Nursery Site (formally rented from Southwark), from about 2005.

Mr Coomber, who is a tree surgeon and was instructed to survey the site for Southwark in his professional capacity, said that on his first visit to the site in 2004 he had seen the trees at the border of Area 1 which were standing clear and in a good condition. He said that by March 2006 the same trees had been buried in spoil up to a height of about four or five feet. This again seems to be borne out when one contrasts the photographs from the two periods.

Mr Underwood gave evidence that he had seen “…8 wheeler bulk tippers arriving on site and tipping material onto the mound of material marked as Area 1”. He also said that he saw such tipper vehicles entering and leaving the yard. He accepted, however, that he had not seen such lorries being used by Mr Campbell/BTS. Mr Campbell said that he never used such vehicles in his business. However, it is entirely consistent with Mr Campbell’s multi-ranging but ill-defined business connections that tipping at his instigation or with his permission should have been physically carried out from time to time by others.

Mr Lett and Mr Heavin, in their statements, said that, when they visited the site in 2009, the mound at Area 1 had increased in height by between 3-5/3-4 feet respectively since they completed their work in 2003. Mr Spall, the local resident, spoke of the deposits onto the “barrow” occurring “in two phases”, consistent with work initially by Mr Lett and by another or others at a later stage.

Mr Spall also speaks in his statement about lorries coming in and out.

It is entirely clear from this evidence that further substantial deposits were made on Area 1 in the period after conclusion of Mr Lett’s work. It seems that these further deposits were made in the period between early 2006 and a date in late 2007.

Mr Connor says, in one of his written statements, that in spring 2007 he had been “contacted by an official from the railway”. He says that he again asked Mr Campbell for help in “pulling back the mound from the crest of the hill, grading the slope onto the top and generally getting the mound ready for new graves”. He also says that he got three written costings for the work (one from Mr Campbell) which he left on his desk when he ceased working for the Council.

In oral evidence he said that Network Rail wanted to have a meeting with him about this area. He seemed to acknowledge that it was something to do with a broken fence on the site and that he had gone to speak about the matter to contractors who were working on the repair of the fence.

The written costings to which Mr Connor had referred were produced and gave rise to a substantial amount of evidence. Two of the quotations are dated in May 2007 and the third from BTS is undated. One of the estimates, from Kem Industrial Services Ltd (“Kem”), is entitled “Removal of Bank of Earth at Honor Oak end of the Cemetery”. Mr Connor was cross-examined on the basis that the estimates demonstrated that the complaint from Network Rail had shown that the mound at Area 1 was unstable and that Mr Connor was anxious to get it removed. Mr Connor denied this.

Mr Campbell was also cross-examined extensively about BTS’s quotation in this series and its timing. Difficulty arose because there was only one quotation in existence in the court bundles. However, Mr Campbell had stated in one of his witness statements (B3/2/28-29) that he had given a price quotation for such removal work to be done. This was in response to a suggestion, in a document compiled by Mr Connor after the event, that Mr Campbell had offered at sometime after 12 December 2007 to remove rubble from the yard free of charge.

It emerged that Mr Campbell was now saying that he had supplied two quotations, one for work to be done on site and another for removal of materials from the site; the second of these, he was saying, was not in the trial documents, although he insisted that Southwark must have had it at the time. The witness statements, however, had not indicated that Mr Campbell was saying that he had produced two entirely separate quotations.

Mr Campbell’s answers on these points were again evasive and unhelpful: Day 19 pp.29-47. It is no use looking to them for where the truth lies on this issue. It seems to me clear that the BTS quotation that is in the trial bundle was indeed one of the series of three about which Mr Connor spoke in his statement. Further, while the Kem quotation states that it is for “removal” of a bank of earth, the body of the quotation includes crushing and screening on site and makes no reference to any haulage of materials from the site.

Mr Campbell too was cross-examined with suggestions that he knew about the Network Rail complaint about the instability of the mound and that he and Mr Connor were concerned to do something about it. Mr Campbell denied the suggestion.

It is clear that work was carried out on Area 1 in the spring/summer of 2007. An excavator and “screener” were engaged on the mound in May/June 2007 – they were photographed by Mrs Spall – D2/16. Mr Campbell accepts that he was responsible for these activities.

In July 2007, a Mr Clive Stanley complained to Councillor Graham about “lorries in and out taking away earth”. The Spalls had cause to visit Mr Connor to complain about the noise and vibration and on one such occasion, in their presence, Mr Connor telephoned someone called “Paddy” to whom Mr Spall then spoke direct and received a promise that the noise would be stopped. It is clear that the person to whom Mr Spall spoke was Mr Campbell; I do not think that the contrary was suggested. Mr Connor’s response to Mr Sheaff when asked about Councillor Graham’s complaint still maintained that the works going on were related to making up ground for graves: see below paragraph 170.

The photographs at D2/53-66 give an impression of the state of Area 1 in April 2009 and February 2010. It seems clear from these that near to the surface were bricks, blocks of concrete and occasional sections of joined bricks. This is very similar to the type of rubble that had been found in the yard itself.

Drawing all these threads together, I cannot accept Mr Campbell’s assertions that he and BTS were not responsible for the tipping activity on Area 1 in 2006 and 2007. It is clear that such tipping took place in this period and everywhere one turns in the evidence one finds the presence and involvement of Mr Campbell. His repeated statements that he brought nothing whatsoever onto the Honor Oak site, except for a few loads of topsoil and some equipment for temporary storage, are frankly incredible. He had a very large number of movable bins on the site; the purpose of having them there, other than for transporting waste, was never explained. In my view, he used the whole site (both Areas 1 and 2) for the purposes of his business, as and when needed, but declined to reveal fully to the court what the precise nature of that business was.

In my judgment, as I have already found, he and BTS were also responsible for the deposit into the compound area of the substantial amounts of rubble and other waste that one sees in that area in Mr Dando’s video recording and of which one has an overview in the photograph at D2/19. The activities of phantom fly-tippers cannot explain away the presence of these materials in exoneration of Mr Campbell and BTS. No other potential candidate for such tipping has been credibly identified.

I do not ignore the evidence of Mr Simon Baxter, one of Southwark’s investigators in 2008, that Mr Lett was suspected at one stage, but as matters unfolded, after Mr Baxter ceased to be involved, no evidence has been uncovered to implicate Mr Lett in any activity at Honor Oak in the relevant period.

Mr Campbell/BTS do not contend that their activity at Honor Oak was based on anything other than the consent of Mr Connor and his actual or ostensible authority to give such consent on Southwark’s behalf. Mr Connor for his part accepts, as set out above, that he gave limited permission for activities by Mr Campbell/BTS at Honor Oak and that, so far as he did so, he says that it lay within his actual authority as cemetery manager as the activities were “beneficial and ordinarily incidental to the management of the Cemetery”. In so far as Mr Campbell/BTS went beyond the permission granted, Mr Connor says that he is not responsible to Southwark for that.

The first step is to decide what it is that Mr Connor did permit Mr Campbell and BTS to do. Anything that went beyond such permission was done unlawfully.

Clearly, Mr Connor agreed to the construction of the compound. He also accepts that he agreed that Mr Campbell could store some items there free of charge. These, he said, included an excavator, two roll-on/roll off bins and a portacabin or container in which Mr Campbell allowed cemetery equipment to be stored. He says that he also agreed to the storage of some scaffolding poles and boards and “relatively small quantities of materials which could be used for the purposes of the cemeteries” by which he meant crushed concrete, scalpings and topsoil: B2/2/31-32.

Mr Campbell said in his witness statements that the permission he received went much further than this: see paragraphs 95 and following above. As I have already found, Mr Campbell did not have permission to store materials beyond those for which Mr Connor accepts that he gave permission.

As for the dumping on Area 1, it is difficult to identify precisely what Mr Connor knew about this and when. For reasons set out in detail in Mr Hutchings’ written closing submissions on Mr Connor’s behalf (at paragraphs 88-95), I accept that Mr Connor was an essentially truthful witness. In any area where his evidence conflicts with that of Mr Campbell I have no hesitation in preferring that of Mr Connor. In so finding, I have also considered the submissions made by Mr Howe with regard to Mr Connor’s e-mails to Mr Sheaff in the period after 7 December 2007 and my conclusions on them which I express later in this judgment.

As will appear below, I believe that Mr Connor became gradually aware of the full extent of Mr Campbell’s activities, first on the mound in Area 1 and in December 2007 in Area 2, at a stage or stages too late to prevent them occurring. He was untruthful at times in his answers to questions from Mr Sheaff, and he accepted in evidence that he had been so on two occasions (Day 17 pages 138 and 171), but I consider that in the witness box his evidence was honestly given in its main essentials.

It is inherent in this finding that I reject the allegation made by Southwark that the activities of Mr Campbell/BTS on the Honor Oak site are the result of a dishonest conspiracy between Mr Campbell and Mr Connor from which Mr Connor derived financial benefit. On Day 17, in answer to a question from me, Mr Howe informed me that Southwark was by then satisfied that the payments made into Mr Connor’s bank account derived from entirely legitimate sources. I had been puzzled by the absence of any cross-examination of Mr Connor about his financial affairs in the light of the serious corruption allegations levelled against him in the pleadings which still seemed to be live at that stage.

There is no evidence of any other bank accounts or of any cash dealings of any significance by Mr Connor. There is evidence of substantial cash withdrawals by Mr Campbell from the BTS account, but that is another matter; there is no demonstrated connection between those cash withdrawals and Mr Connor.

It is quite clear that Mr Connor is not a man of sophisticated business acumen who would be capable of concealment of such corrupt payments if they had been received by him. The freezing and search orders made against him at the outset of this action came as a complete surprise to him and there is no suggestion in any of the material deriving from those orders that Mr Connor was a party to any such corrupt conspiracy such as that alleged.

Southwark’s case in this respect, therefore, rests entirely on an invitation to me to draw an inference of corrupt dealing from the fact of Mr Campbell/BTS’s activities, Mr Connor’s alleged permission for these activities to be carried on and the cash sums withdrawn by Mr Campbell/BTS. It is submitted that the activities must have been conducted for gain by Mr Campbell/BTS and that Mr Connor must have profited from them. The first proposition I accept; the second, I do not. I decline to draw any such inference. There is no evidence to support it.

Somewhat unrealistically, Mr Hutchings submitted in closing that the Area 1 mound “was dumped by EK Lett, not NC…”. For reasons already given, I have found that this is not so in respect of the phase of dumping in 2006 and 2007. However, Mr Hutchings goes on to submit (more realistically) that “[i]f any of it was dumped by NC, TC did not knowingly permit NC to do so”.

Mr Connor says that in about October 2006 and again in the spring of 2007 he asked Mr Campbell to do work to pull back the Area 1 mound: in October 2006 “as there was a crack appearing” and in spring 2007 for the purpose of “grading the slope to the top and generally getting the mound ready for new graves”. On this second occasion, Mr Connor had his contact with Network Rail, probably about a broken fence at the boundary with the railway land. He attributed the change in appearance of the Area 1 mound to the “dragging back works” which he had asked Mr. Campbell to do, the depositing of grave spoil in that area and the attendant movement of vehicles (Day 17 p. 41 et seq.)

Mr Connor’s evidence was that he rarely went down to the Nursery Site as his management activities of the cemetery and crematorium business for the three cemeteries was centred at the main office in Brenchley Gardens near to the main entrance to the cemetery. There is a separate entrance to the Nursery Site from Honor Oak Park. Mr Connor said that the administration work that Southwark had expected him to do in a five day week had to be done after April 2007 in his new 2 day week working pattern; he had little time for anything else.

It is also common ground that Mr Connor was relatively immobile. He is, with respect to him, certainly now a person of bulky stature (he told me that he now weighs “22 stones”, that is nearly 140 kilos). Mr Black said that Mr Connor’s legs got bad in the period after 2006, affecting his mobility to such an extent that he customarily drove the 60 yards from the office to his home for lunch rather than walk. Mr Black also said that in his two days of work per week (after April 2007) Mr Connor’s time would be consumed with office matters. Mr Campbell said of Mr Connor, in a moment of annoyance in his evidence, “That man there wouldn’t even come out of the office half the time. He wouldn’t walk nowhere” (Day 18 p.208 lines 9 and 10). He said that when Mr Connor did drive down to the nursery area he did not get out of his car (Day 19 p.194 line 23).

It is clear that the principal “onsite” and “outdoor” supervisor at Honor Oak was not Mr Connor but Mr Black, who oversaw the work of the gravediggers. It is also clear from the mobile telephone records of Mr Connor and Mr Black that it was Mr Black (rather than Mr Connor) who was in frequent contact with Mr Campbell. (Footnote: ³) This went on until 17 December 2007, just after Mr Sheaff had visited the site and was asking for information about the rubble in the yard and what had been going on there. On 17 December 2007 Mr Connor made his first call to Mr Campbell for many months, as he says, trying to get him to move the materials from the yard.

Mr Campbell was asked many questions about what the calls between him and Mr Black were about. In particular, he was asked whether the calls had anything to do with what was going on in the yard. He denied that they were: Day 20 p.27 line 10. His subsequent answers were these:

It was then suggested to Mr Campbell that once Southwark was insisting on the removal of the materials from the yard in December 2007 there was no further point in having contact with Mr Black on the same frequent basis as before. In my judgment, that suggestion, although denied by Mr Campbell in another series of unlikely answers (Day 20 p. 28 line 12 to p.29 line 8), gives the true explanation of the cessation of telephone contact between Mr Campbell and Mr Black. It also indicates that the true channel of communication in the material period between Mr Campbell and the cemetery was between Mr Campbell and Mr Black, rather than between Mr Campbell and Mr Connor.

I conclude, therefore, that Mr Campbell/BTS’s activities in the yard and on Area 1 substantially exceeded the very limited permission that had been given to them by Mr Connor and that they are accordingly liable to Southwark to compensate it for the unlawful deposit of materials in those areas of the site. I deal below with the quantities of materials deposited.

On the basis of my findings above, it seems that Mr Connor could only be liable to Southwark in respect of those activities of Mr Campbell/BTS, beyond those expressly permitted by him, in so far as their occurrence amounted by Mr Connor to a breach of contract and/or fiduciary duty as alleged in paragraphs 7 and 15 and paragraphs 19 and 20 of the Amended Particulars of Claim. Southwark relies in this respect upon the implied term of good faith and fidelity in the employment contract and upon a fiduciary duty to act in good faith in the best interests of Southwark. (The remaining aspects of the fiduciary duty alleged in paragraph 19(b) to (d) of Southwark’s statement of case do not arise on the findings that I have made.)

It is to be noted that there is no allegation of breach of contractual or tortious duty of care made against Mr Connor. (Perhaps this is not surprising. If lack of care was to be the touchstone of employee liability in this case then any number of Southwark’s employees, some of whom were witnesses before me called on Southwark’s behalf, might well have been liable also. Negligent mismanagement by Southwark permeates this case.)

The breach of duty alleged against Mr Connor, however, is a breach of a duty of good faith. The only contractual breaches of relevance that are alleged would be those set out in paragraph 15(ii) and (iii) of the Particulars of Claim, viz. a failure to prevent the unlawful activities and/or failure to disclose the activities and a concealment of them. As already mentioned, only paragraph 19(a) of the breach of fiduciary duty claim seems material.

This area of the case was not substantially explored at all in argument, written or oral. In my judgment, however, Mr Connor’s unwitting failure to stop Mr Campbell going beyond what he had been permitted to do was not a failure to act in good faith. The failure to disclose the activities or to conceal them when discovered might have been.

I believe that there did come a stage in about the middle of 2007 when Mr Connor realised that Mr Campbell had gone far beyond what had been permitted on Area 1 and he should then in good faith have involved his superiors in resolving the matter. However, by then most of the damage had been done and I shall return below to the question of what loss (if any) was caused by Mr Connor’s failure in this respect.

It is necessary next to decide whether Mr Connor had actual or ostensible authority to permit the building of the compound and to give to Mr Campbell permission to store some limited amount of materials there.

Looking at Mr Connor’s actual authority first, it must be remembered that the construction of the yard involved the enclosure of an area of about a hectare requiring some 4,221 tonnes, or about 1900 cubic metres, of earth materials for the walls. While Mr Connor envisaged some storage of materials for cemetery purposes, Mr Campbell was to receive some benefit from the yard for his business at no ongoing cost to him. Mr Connor was wont to refer to higher authority for permission to engage in works far less extensive than these, some are cited by Mr Howe and Mr Segan in their final closing submissions, paragraph 131. Mr Connor was also aware that formalities were required for the grant to Gristwood & Toms Ltd of a lease of the neighbouring yard at the Nursery Site.

All these features show that Mr Connor did not have Southwark’s actual authority to agree with Mr Campbell that the compound should be constructed. As Southwark points out, Mr Campbell and BTS do not point to any specific acts by Southwark by which they held out Mr Connor as having such authority. Mr Campbell and BTS rely simply upon an alleged belief that Mr Connor’s position as cemeteries manager was sufficient to allow them to regard him as having the necessary authority to permit the building of the compound and the storage of materials there. There is no evidence that this feature alone gave rise to any adequate ostensible authority on the part of Mr Connor to permit such a substantial construction on his employer’s land without any paperwork or financial arrangements whatsoever.

Mr Connor thought what he was permitting was for the benefit of the cemetery. Looking at photographs D2/11A-C, if the yard so constructed had been used entirely for cemetery purposes, he might have been right. However, that does not give rise to any sufficient “holding out” of Mr Connor as having the authority to agree to the construction of a substantial walled enclosure such as this was. I do find, however, that Mr Connor did have within his actual authority the capacity to permit the import onto the site of some scalpings and crushed concrete for use in the cemetery.

I turn to the question of alleged ratification of the construction of the compound contended for by the defendants.

Mr Connor says that the compound was seen by Mr Sheaff shortly after it was constructed, although he does not recall when this was. He says that Mr Sheaff had no objection. Mr Connor also says that the compound was seen by Mrs Annie Shepperd, Southwark’s Chief Executive on a visit in 2007.

Mr Sheaff denied that he knew anything about the compound until he visited Honor Oak in the company of two other council officials, Mr Thompson and Mr Chatterton, on 7 December 2007. In his witness statement, Mr Sheaff said this about what he saw on that occasion:

In cross-examination Mr Sheaff was taken to certain e-mails that were exchanged following a complaint by a resident on 9 July 2007 to a Councillor (Councillor Graham) about traffic movement into and out of the Honor Oak site. Part of the complaint was that, “… there are lorries in and out taking away earth (what are they doing?!)…” The concern expressed was as to the safety of pedestrians who used the same entrance into the site from Honor Oak Park as these lorries and other vehicular traffic. This complaint found its way, via Ms Davies and Mr Waters to Mr Sheaff. In forwarding the Councillor’s complaint to Mr Connor on 16 July 2007, Mr Sheaff wrote as follows:

With reference to these e-mails Mr Page QC and Mr Hutchings put to Mr Sheaff a number of questions suggesting to him that it was clear that by July 2007 at the latest he knew about the mound in Area 1 and the existence of the yard or compound because otherwise he could not have been asking about “huge piles of earth at the back of the Honor Oak burial ground” and could not have been aware of the “big silos” without equally knowing of the existence of the large earth walls around the compound and the green gates at its entrance which were in very close proximity to the silos in question. It was suggested that he must have therefore been aware of the substantial size of the mound and the freshly churned up appearance of it as shown in a vivid photograph taken by Mrs. Shane Spall, a local resident, in the spring or early summer of that year (D2/16). It was suggested to Mr Sheaff that if he had been concerned about these things he would have said so at this time.

Mr Sheaff said that he was not confident that the piles of earth that he was referring to were the mound in Area 1 and said that he was unable to say whether or not he was aware of the existence of the compound or its gates by July 2007. He rejected the suggestion that he had feigned surprise at what he saw in December 2007 because he wished to conceal the fact that he was already well aware of the compound and had permitted its construction.

In my judgment, I think it is clear that Mr Sheaff must have been aware of the existence of substantial additions to mound in Area 1 and of the existence of the compound by July 2007 or he would not have written as he did in the e-mails that I have quoted in paragraph 170 above. However, I do not think that this means that he gave any retrospective approval to either of these things, which could amount to ratification of what had been done without his authority, or that he was other than truly surprised when he saw the contents of the yard in December 2007 when he scaled the surrounding earth banks for the first time.

It is also alleged that the yard was inspected by Mrs Annie Shepperd, Southwark’s Chief Executive, in 2007 and alleged (implicitly) thereby that retrospective authority for its construction/existence was given by her. In my judgment, this turned out to be a hopeless contention.

The evidence showed that Mrs Shepperd’s visit was made by her on 13 March 2007. She had taken up her post in September 2006 and undertook the visit as one of a series of such visits to various council sites in order to meet the staff and to gain a little understanding of them and their work.

It is far from clear from Mrs Shepperd’s evidence or that of Mr Connor that she even saw the compound area; she certainly did not go into the compound itself. There is nothing in the evidence to suggest that she understood the significance of that area or that her mind was addressed at all to the question of whether the yard ought to have been there or not. I am entirely clear that nothing occurred on that visit by Mrs Shepperd which could conceivably amount to a ratification of the previously unauthorised construction of the yard, still less of any activities that may have been conducted within it.

I have set out above my conclusions as to the primary causes of action alleged by Southwark and the defences made to them. It will be understood that I find that Mr Connor exceeded his authority in permitting the construction of the yard and belatedly realised the full extent of what had been going on there and in Area 1. Mr Campbell/BTS were “given an inch and took a mile”. Subject to the matters to which I now turn they are liable to Southwark in damages for the losses flowing from the construction of the yard and the dumping of substantial quantities of waste materials there and on Area 1 in the period from January 2006 to December 2007.

As mentioned in paragraph 14 above, Mr Campbell/BTS contend that these proceedings have been brought against them in bad faith, on insubstantial evidence, in order to deflect from Southwark a prosecution by the Environment Agency for offences under the Environment Protection legislation.

It is important to note at the outset of considering these allegations that, if substantiated, they can only provide a defence to Southwark’s claims if it can be shown that they undermine the factual basis for those claims. In other words, they can only be relevant as a defence if it can be shown that for this reason the evidence brought in support of the claims has been fabricated and/or that there is no genuine belief that Mr Campbell/BTS did conduct without permission the activities at Honor Oak which Southwark say they did.

In considering the primary evidence of the activities of Mr Campbell and BTS I have borne constantly in mind the allegations of bad faith and have sought to test my assessment of that primary evidence against them. However, the primary evidence does not rely to any real extent upon the evidence of the council officials against whom bad faith is alleged. Those officials (i.e. Mrs Shepperd and Mrs Deborah Collins) came on the scene at a much later time when the activities now complained of had come to light many months before.

In summary, I do not think that the evidence before me establishes anything like what would be required to undermine Southwark’s case to such an extent. I do find, however, that when the problem at Honor Oak unfolded between December 2007 and September 2008, certain managers at Southwark became concerned about their own positions with regard to what had happened at that cemetery and what had happened at COC in 2003. It was appreciated then that Southwark had failed to prevent unlawful tipping at those two sites and that, at COC in particular, this failure had been “swept under the carpet” in dealing with complaints by Councillors and with press enquiries at that time. As a result, there was an anxiety in the summer of 2008 to limit the enthusiastic investigations by Mr Simon Baxter in particular and a failure by Mr Sheaff properly to respond to Mr. Baxter’s enquiries about what had happened at COC.

An investigation by solicitors was initiated by Mrs Shepperd in September 2008, involving the eminent firm of solicitors who now act for Southwark in this action. Privilege has been claimed by Southwark for all the detailed workings and findings of that investigation and I cannot and do not make any criticism of that fact. While that investigation was still continuing, however, these proceedings were begun. Notwithstanding robust statements that thorough investigations had been carried out, at the commencement of the proceedings, Southwark made allegations against Mr Campbell and BTS in respect of COC, Nunhead and Honor Oak that could not be substantiated and Southwark presented, in that respect, what was in fact a misleading picture of the case to the court when the initial applications without notice were made to Wyn Williams J. I make it clear that both Mr. Hutchings and Mr. Page told the Court expressly that they were not impugning the conduct of Southwark’s Counsel or solicitors in relation to the interim applications. The criticism was simply that as a matter of objective fact material matters were not disclosed and false impressions were created.

These features have fuelled the ability of those representing Mr Campbell and BTS to pursue the allegations of bad faith levelled against Southwark as part of the defence to the present claims. However, in my judgment, while these allegations were being made on their behalf, Mr Campbell personally must have been fully aware of his and his company’s true involvement at Honor Oak, even if that involvement was somewhat less than Southwark had originally alleged. He must accordingly have been aware that, whatever the full motives for the claim and whatever the deficiencies of the materials on which the applications for the freezing and search orders were made, he and BTS did not have a defence to material parts of the claims made by Southwark.

It is necessary now to set out rather more fully the basis on which I have reached the conclusions in the immediately preceding paragraphs (178-183) and to address the applications to discharge the interim orders. However, so far as these allegations are relevant to the defence to the claims, it is not necessary to explore every nook and cranny of the evidence, because (as I have said) the allegations do not demonstrate any fundamental flaw in the surviving claims.

The facts underlying these matters arose in the period following Mr Sheaff’s visit to Honor Oak, with his two colleagues, on 7 December 2007 and the commencement of this action on 19 January 2009 – a period of just over 13 months.

On the first of these dates (a Friday) Mr Sheaff made his visit to the site. He climbed up the bank forming one of the compound walls and saw the contents. He was surprised by what he thought was an active waste processing operation. It is not clear, however, what machinery it was that he saw. He then wrote an e-mail to Mr Connor in the following terms:

Mr Connor’s evidence about this reply (which I accept) was that he thought Mr Sheaff was referring to the Area 1 mound rather than the compound. While, with hindsight and explanation, it is clear that Mr Sheaff was in fact referring to the compound, I think it is clear from Mr Connor’s reply that he was not so understanding the enquiry.

Mr Sheaff wrote again to Mr Connor on 10 December as follows:

Mr Connor says that after seeing this message he and Mr Black went down to the site but without taking with them any keys to gain access. He thought he must have presumed that the yard gates would be open but found that they were not. He looked through the gap in the gates and saw bits of concrete and breeze blocks but could not see the extent of them. Neither he nor Mr Black climbed the mound to look inside. Mr Black’s evidence about this visit is essentially to similar effect: Day 21 pp.154-7. After this Mr Connor wrote to Mr Sheaff as follows:

Mr Connor, Mr Sheaff and Mr Black met on site on 12 December and inspected the yard. Mr Sheaff’s written evidence about this was:

Mr Connor says that after this, on 13 December, he met Mr Campbell in the company of Mr Black and told Mr. Campbell that he wanted the waste removed from the compound. He says that Mr Campbell agreed that he would get the materials moved by 7 January. Mr Campbell denies that there was any such meeting. Mr Black says that if it did take place he was not present, although he did vaguely recall Mr Connor wanting to contact Mr Campbell about the matter.

Mr Connor says that in the ensuing period he tried on various occasions to get Mr Campbell to move the materials from the compound but his messages were not returned. He also says that he wrote a letter requiring Mr Campbell to do this and that he and his wife delivered it by hand to Mr Campbell’s house in Brenchley Gardens. The copy of the letter that Mr Connor says he wrote is at D1/5/823A in the trial bundles of documents. Mr Campbell denies receiving the letter. I am satisfied by Mr Connor’s evidence that he did write and deliver this letter at about the date appearing on it. As will already be apparent, Mr Campbell’s record keeping is poor (to say the least) and he has an inclination to dissemble when asked anything to do with paperwork.

I think that it is more likely than not that Mr Connor did meet or speak over the telephone to Mr Campbell on various occasions from December 2007 onwards, encouraging him to remove the materials from the yard and that Mr Campbell fobbed Mr Connor off with various excuses. Clearly by then Mr Connor felt very much at fault for what had happened and to that extent vulnerable. That explains why he told a lie to Mr Sheaff in an e-mail of 3 May 2008 in saying that he had allowed the materials into the yard for a short period as a favour. In his witness statement and in oral evidence, Mr Connor accepted that he had not told the truth to Mr Sheaff in this respect.

It is not necessary to recite in detail the subsequent e-mail exchanges between Mr Sheaff and Mr Connor in which Mr Sheaff was pressing Mr Connor for the waste materials to be moved from the yard. However, I have set out in an appendix extracts from seven messages, included in these exchanges, which were relied upon by Southwark at the time of the applications without notice on 19 January 2009 as being confirmation by Mr Connor “that NC [Mr Campbell] and BTSL are responsible for the fly-tipping and/or dumping” which they were alleging at the time (paragraphs 7 and 30-38 of the supporting affidavit, A/1/34 and 40-41) (Footnote: ⁴).

On 7 May 2008 Mr Sheaff sent copies of the e-mail chain between himself and Mr Connor to Mr Simon Baxter, a member of the Environmental Enforcement Team at Southwark. Mr Baxter in the past had conducted a number of “high profile” investigations into possible breaches of environmental control and, within the Council, was held in some awe in this respect.

In the period from 7 May 2008, until Mr Baxter went on compassionate leave on 28 July following his father’s death, a disagreement emerged in the Council about the extent to which criminal investigation by Southwark/prosecution was appropriate. Mr Baxter was anxious to pursue the criminal prosecution route wherever possible; he thought that this was the only honourable course – whatever the result for the council itself. Mr Waters was more circumspect and he considered that, if Southwark had a criminal responsibility for what had occurred, it should confine its enquiries to management issues leaving criminal matters to others. (I summarise the thrust of the very detailed evidence on this, I hope fairly.) In the following paragraphs, I give the broadest summary of Southwark’s internal ruminations on these matters.

On 13 May, Mr Baxter, Mr Dando and PC Harris (an officer seconded to Southwark’s environment team) visited Honor Oak and spoke briefly to Mr Connor. On the same day, Mr Baxter reported that, in his view, waste had been treated and stored at the site in breach of s.33 of the Environmental Protection Act 1990 and stated that Mr Connor had been asked to attend for interview on the following day. Possibility of a formal caution of Mr Connor was mentioned.

Mr Waters was not happy with this decision and asked that the interview be conducted merely as a fact finding exercise. He identified a possible liability on the part of the council itself and thus a conflict of interest and asked that Mr Sheaff be present at the interview. Mr Baxter insisted on proceeding and Mr Waters then instructed him formally not to do so until the matter had been discussed with the Borough Solicitor. It seems that this led to a vigorous face to face argument between Mr Waters and Mr Baxter, at Southwark’s Larcom Street offices, during which Mr Waters swore forcefully at Mr Baxter.

It is, I think, worth citing Mr Sheaff’s assessment of the situation at that stage, stated in an e-mail to Mr Waters of 14 May 2008 in which he wrote:

It seems from an e-mail written by Mr Sheaff early on 20 May that the meeting assumed that BTS would not remove the offending items, as they had promised to do on numerous previous occasions, and that quotes would have to be obtained from another contractor. However, only half an hour later, Mr Connor wrote to Mr Sheaff to say that he had just received a telephone call from BTS “not the Governor” to say that all the rubble would be gone by that Friday (Footnote: ⁶). At 1429 that day Mr Sheaff wrote to Mr Waters: “The stuff is being moved out (by Brixton Waste). Hurrah!”. However, Mr Waters wrote back immediately, “Do we know where they are taking it and is it all being done legally?”. Mr Sheaff responded that the operator had a licence to move waste, but he did not know the destination.

The e-mail traffic also indicates that Mr Sheaff understood that someone from BTS had attended at Honor Oak that morning and was arrested by two Council officers and a police officer, although Mr Baxter did not seem to be aware of this and asked Mr Sheaff for details of the arresting officer and other matters. (Footnote: ⁷) Mr Waters asked who had asked “Brixton Waste” to come to the site, as the meeting on the 19 May had agreed that Mr Baxter was to continue his investigations and, in the meantime, costings for removal were to be obtained. He said that “Brixton Waste” was to be told not to continue removal until the end of the investigation. Ms Forrester-Brown, in a message to Mr Waters and Mr Baxter, said,

On receiving this message, Mr Baxter e-mailed Ms Forrester-Brown: “Something is not right here…it seems to me that someone does not want this investigation to move forward…”. Miss Forrester-Brown replied “You are right. Talk tomorrow”.

On 21 May the e-mail traffic continued, debating the desirability or otherwise of allowing BTS to move the materials. Mr Sheaff was urging strongly that BTS be allowed to move the materials saying, “If this can be done by a licensed contractor, to a licensed site, quickly and at no cost to us. I suggest this is a win”. Mr Sheaff enquired whether he could be permitted to get more detail about the proposed removal, the licensing position and the site to which removal was proposed. (Footnote: ⁸)

Legal advice was given to Mr Baxter early on 22 May that there would be no objection to BTS removing the material, provided Mr Sheaff’s enquiries were made. Mr Baxter obtained approval for the message containing the advice to be passed on to Mr Sheaff and, at 1420 that afternoon, Mr Sheaff reported that BTS had called again. He gave detailed information as to the identity of the removal contractor proposed (Hinkcroft Transport Limited). A waste transfer station at Deptford was mentioned and the waste management licence number was given. The location of the intended disposal site was also given. It appears that Mr Sheaff had not himself received the information given in the e-mail, but it had been passed onto him by Mr Connor.

Mr Campbell initially denied that his company had made any offer to remove the waste at this stage and insisted that the name of Hinkcroft must have come from the “missing” second quotation that he had given earlier for the removal of items, but for a price, from the Honor Oak site to which he had referred in his earlier evidence. (Footnote: ⁹) From the quotation, Mr Campbell suggested, Southwark must have made other inquiries enabling them to give the details that appeared in Mr Sheaff’s e-mail: Day 19 pp.206 ff. I consider that this explanation is highly unlikely and is not correct. I do not accept that Mr Connor gathered up the information in this way to give to Mr Sheaff. I find that BTS did offer to remove the materials in the yard free of charge at this stage. This is a telling indication of BTS’s acceptance of responsibility for the scene at the Honor Oak yard depicted in Mr Dando’s video and the photographs.

However, all this came to nought as Mr Jonathan Toy, Mr Baxter’s superior, gave an instruction that no removal was to take place until after a meeting of senior managers and legal advisers that was to be held in the next few days: CB2/436. Mr Toy convened such a meeting to be held at Southwark’s Cator Street offices at noon on 23 May by an e-mail of 08.51 that morning.

At 1023 that morning Southwark’s Senior Media Officer wrote to Mr Baxter and Mr Toy informing them of a press enquiry about “the investigation into fly-tipping at Honor Oak Cemetery. The journalist has heard that Terry Connors (sic) is being investigated…”. At 1037 Mr Sheaff wrote another “round robin” e-mail to relevant officials urging that BTS be permitted to remove the waste now that he had provided the information showing that operation would be lawful. At 1038, the Media Officer forwarded to Mr Toy and Mr Waters a draft response to the press enquiry in these terms:

On the following day (24 May), Mr Waters informed Miss Louise Farmer at the Environment Agency (“the EA”) of “an alleged fly tipping/landfill operation” at Honor Oak and asked for advice on case management. On 27 May, Mr Connor was suspended. A note by Mr Connor dated 28 May records Mr Campbell telephoning with further offers to remove the rubble at no cost. (Footnote: ¹⁰) On 11 June Mr Connor gave written confirmation of his resignation as from 15 June. There are later documents indicating that Mr Baxter and Mr Toy, when they heard about this, were not happy that the decision to accept Mr Connor’s resignation had been taken without reference to the investigating team.

On 6 June Miss Farmer of the EA wrote to Mr Waters with the EA’s initial decision on the position at Honor Oak in the following terms:

An e-mail of 12 June from Mr Baxter pointed up the fact that the EA agreed that there could be a prosecution against the person who permitted the waste deposit (meaning Mr Connor). On the question of the prosecution of the tippers, Mr Baxter stated that the only available witness was a person who was unwilling to speak as he felt “he had been hung out to dry by the Council”. The e-mail ends by stating that there was enough evidence to arrest Mr Connor. Mr Waters’ response was that no further action must be taken, including witness interviews, until the soil samples (by then commissioned) were available. In a separate message 15 minutes later Mr Waters forwarded Mr Baxter’s message, encouraging the arrest of Mr Connor, to Mr Nawrat in the personnel department at Southwark stating, “This is very worrying and was not agreed”.

Mr Baxter expressed his immediate disagreement in these terms:

The day ended with Mr Toy writing two messages one to Mr Baxter, with copies to others, and one to Mr Baxter alone. The first message said this:

By 25 June (a Wednesday) Mr Baxter was able to inform Mr Toy that the preliminary soil sample results were expected by that Friday. He expressed the information to be “top secret” and not to be passed to Mr Waters (whom he described in disparaging terms). The message also recorded information received that the Nursery Site had at one stage been flat up to the railway fence; it seems that at that stage the impact of Mr Lett’s 2003 work had not been appreciated. In response to an enquiry from Miss Farmer at the EA, Mr Dando informed her on 27 June that the results were expected shortly and that the area of dumping was larger than originally thought.

The preliminary soil results were actually received on Thursday, 3 July. Mr Baxter asked that they should be kept from all except himself and Messrs Toy, Dando and Harris. On 8 July Mr Waters enquired of Mr Toy when the results would be available. Mr Toy informed him that the scale of the dumping site was larger than first thought. Mr Waters stated that if investigations revealed “a more serious scale” it would be helpful if this was shared with him. Mr Toy responded that he was awaiting a final report. Mr Toy wrote on 9 July to say that results were expected on 11 July. On the 10^th, Mr Toy wrote to say that the results would not be available on the 11^th after all as further work was needed. Mr Waters asked for a meeting to understand the nature of the additional work and “the current status of the whole operation”. The final report was actually produced on 21 July. However, in the meantime, Mr Waters, who was feeling increasingly excluded by Mr Baxter, tried to obtain (through private sources) information about the soil results directly from the experts instructed.

In the meantime, on 15 July, Mr Dando and Mr Baxter visited COC. The result is recorded in an e-mail from Mr Sheaff to Mr Waters on that day:

On 23 July Mr Dando provided a report to Mr Toy on the findings at COC. His message included the following:

The developments at COC reached Ms Forrester-Brown who (on 25 July) expressed concern about finding out what had been going on and who was responsible. Mr Toy responded that the matter had been left with Mr Waters to investigate. (Footnote: ¹¹) Again, Mr Baxter protested that it would not be right to permit Mr Waters to investigate the “criminal side” of the matter. On the same day, Mr Baxter informed Miss Forrester-Brown (with copies to Mr Waters, Mr Toy, and Ms Davies among others) that Mr Connor may have misled Councillor Humphreys about the tipping of waste at COC in 2003. This comment must have been made by reference to the e-mail train from September 2003 to which Mr Baxter had had access. Ms Davies responded (characteristically) by doing no more than forwarding the message with a single “?”. Also on the 25^th Mr Sheaff wrote to Mr Waters with reference to the woodland burial site as follows:

Mr Dando said in oral evidence that at the stage that the investigation into COC was begun an old press article about dumping at that site had been produced by a member of staff and that he and PC Harris had gone to the press office to see if back up correspondence was available. When they asked for the material it seemed that it was no longer available – there was an empty file hanger but no documents in it. Mr Dando was shown the trail of e-mails beginning in September 2003 to which I have referred in paragraph 45 and following above; he said that these were the sort of materials he would have expected to see on the missing file, but he was now seeing them for the first time. He said it was all completely new to him: Day 6 p.45 line 10. He was asked about the message from Mr Sheaff to Councillor Humphreys of 19 November 2003 (D1/4/718; CB1/183) and he said,

On 7 August Mr Waters e-mailed Mr Sheaff and asked what had become of the correspondence chain relating to COC in 2003. It appears that Mr. Waters had at that stage seen only Councillor Humphries’ letter and the draft response prepared by Mr Connor. Mr Sheaff responded saying that, having checked through all his letters in response to complaints from 2003, he could not find any reference to this issue. The reply made no reference to e-mails.

On 12 August Mr Waters and Mr Dando met Mr St. Clare-Newman of the EA at Honor Oak and it was agreed that a further meeting would be set up for early September with Miss Farmer. A meeting was duly booked for 3 September. On 14 August Mr Waters wrote a Briefing Note for the Chief Executive, Mrs Shepperd, on the issues at all three cemeteries and met her to discuss the matter on 15 August. Mr Waters’ note included the following comments:

the dumping/storage and treatment of controlled waste at Honor Oak Cemetery

The use of waste material to make up areas within Camberwell Old and Nunhead cemeteries

All activity constitutes breaches of EPA 1990. …

Some evidence also that the “Authority” was corporately aware of the issue, leaving LBS open to a strict liability prosecution.

Service under severe cost pressure leading to cutting corners.

Management seemingly unaware of the requirements of current waste management legislation.

Possible fraud and criminal intent by one or more Council officers. ”

Mr Waters was asked what he meant by LBS being “corporately aware of the issue…”. His response was:

Mrs Shepperd on the other hand said that she had been informed that there had been complaints by Councillor Humphreys. However, in a long series of questions and answers (Day 14 pp.96-105) Mrs Shepperd told me that no one suggested to her that the dumping in question at COC had been carried out in 2003. She also said that she was not told by Mr Waters that the dumping in COC had been done to make up ground with the knowledge of Mr Sheaff and Ms Davies: Day 14 pp. 97-98 and pp. 104-105). Mrs Shepperd said that the concentration at the meeting was on Honor Oak rather than on COC. For my part, I prefer Mr Waters’ evidence to that of Mrs Shepperd on this point. It was obviously a major concern of the EA and I do not think that Mr Waters would have omitted to brief Mrs Shepperd about it.

In the following week Mr St. Clare-Newman of the EA attended Southwark’s offices to look through all the files relating to cemeteries. After seeing these, the files were sealed and Mr St. Clare-Newman decided that the EA would take the matter over; the files were collected on 26 August: see an e-mail of 26 August, CB2/667.

On 3 September, Mr Waters, Mr Toy, Ms Forrester-Brown and one other met Miss Farmer and Mr St. Clare-Newman. The minutes record that,

Mrs Shepperd said that she was not briefed by Mr Waters about the outcome of this meeting, although Mr Waters had written offering to do so: CB2/710. Mr Waters agreed that he had not in fact done so: Day 15 p. 79.

On 9 September Mr Peter Quarmby, the Area Manager of the Thames Region, South East Area of the EA wrote to Mrs Shepperd confirming a meeting that had been arranged and asking to meet with Mrs Shepperd and the leader of the Council alone. The discussion at that meeting (held on 11 September) is summarised by Mrs Shepperd in her second witness statement in these terms:

As a result of this meeting, Mrs Shepperd instructed Mrs Deborah Collins, then “Director of Legal and Democratic Services” (now “Strategic Director of Communities, Law and Governance”) (in plain language, Southwark’s senior legal officer) to set up and conduct an independent investigation to find out “who was involved, how this happened and [to ensure] that the police and the [EA] would have our full co-operation with their investigations…” (paragraph 12 of the same witness statement, B2/20/156). It was this investigation that was apparently carried out by Messrs. Kingsley Napley, now Southwark’s solicitors in the action, in the period up to and beyond the commencement of the proceedings in January 2009. Mrs. Shepperd says that

Mrs Shepperd also told the court that from this time Mr Waters and Ms Davies were instructed to confine themselves to the day-to-day management of the cemeteries, to liaise with the EA about the waste and to deal with safety issues.

On 17 September 2008, Mrs Shepperd and Ms Davies met. In their respective notes of the meeting both use the words “difficult conversation”. Mrs Shepperd’s note refers to the new independent investigation and goes on to say that it was “inevitable that all in chain will be investigated”. Mrs Shepperd was clear in her evidence that that included Mr Waters and Ms Davies, but Ms Davies was reluctant to accept this: Day 13 pp. 118-120, notwithstanding the obvious implication to that effect expressed in Mrs Shepperd’s note which was put to Ms Davies.

In short, I consider that the evidence shows that, when evidence of dumping at COC was discovered by Mr Dando and Mr Baxter on 16 July 2008, this gave Mr Sheaff and Ms Davies considerable personal concern. They were aware of what had happened there in 2003 and were anxious that this could give rise to difficulties for them. This is apparent from the flurry of e-mails from Mr Sheaff immediately thereafter and his refusal to answer Mr Baxter’s simple request for the name of the contractor for the creating of the site at COC. He accepted in evidence that he was frightened by the situation.

Ms Davies, I regret to say, was unforthcoming in her evidence about the obvious implication of the e-mails and other documents relating to COC in September 2003 onwards. Her evidence when asked about the investigations that Mrs Shepperd was commissioning in September 2008 was of a similar character.

The instruction was given on 25 July that Mr Waters was to lead the inquiries into COC, rather than Mr Baxter. That instruction emanated from Ms Davies. I do not find that she consciously gave the instruction to avoid a proper investigation of these events. The decision was taken after consultation with Mr Waters and Mr Toy; Mr Waters had been concerned from the outset that there was difficulty in Southwark conducting a criminal investigation when it was appreciated that there might be a prosecution brought against Southwark itself in relation to Honor Oak, even before the discovery by Mr Dando and Mr Baxter of tipping at COC. Mr Toy was also concerned that the simple fact of the discovery of waste on the cemetery sites could have adverse effects on Southwark’s public reputation: Day 6 p. 21. Ms Davies’s decision to take matters out of Mr Baxter’s hands was not wholly motivated by her concern about what had happened in 2003, since the views of Mr Waters and Mr Toy seem to have played a significant part in the decision that she made. It must be remembered that Mr Waters had no hesitation in reporting the findings at Honor Oak to the EA as soon as he learnt about them in May 2008. Very shortly after Ms Davies’s decision was made on 25 July 2008 Mr Baxter went on compassionate leave and did not return until September when the matter had been taken out of Southwark’s hands by the EA.

I have no doubt that all involved at Southwark (up to and including Mrs Shepperd) were well aware by September 2008 that one of the EA’s principal concerns was the knowledge “up the management chain” about what had happened at COC in 2003, as recorded in Mr Waters’ note of the meeting on 3 September 2008.

It is the events from September 2008 and the involvement of Mrs Shepperd and Mrs Collins in that period that have given rise to the allegations that these proceedings were initiated in bad faith and that Southwark failed to comply with its duties of “full and frank disclosure” in making the applications to Wyn Williams J on 19 January 2009. Indeed, an analysis of the application made to the court on 19 January 2009 and of the criticisms of it by the defendants enable me to deal with most aspects of both points.

The documents before the court on 19 January were an affidavit of Mrs Collins with a very bulky exhibit, sworn before a solicitor in the EC1 postal district of London on 19 January, a skeleton argument from Mr Howe and Mr Segan and possibly the claim form which was issued at some time on that day. (Footnote: ¹³)

The introduction section to Mrs Collins’ affidavit contains one of the principal features of the application which is criticised by the defendants. The relevant passages are in the following terms:

In paragraphs 30 to 38, Mrs Collins sets out the materials relating to the “admissions” by Mr Connor “regarding NC/BTSL”. I will not set these out again. They consist principally of the e-mail extracts set out in the appendix. In paragraph 70, Mrs Collins says: “TC has admitted, as set out above, that it was NC who carried out the dumping through his company BTSL…”.

Any natural reading of paragraphs 6, 7 and 70 gives the clear impression that Mr Connor had admitted that Mr Campbell and BTS had been responsible for all the fly-tipping/dumping that had occurred at all three cemeteries. However, a proper reading of the materials in paragraphs 30 to 38 in context makes it clear that what Mr Connor was saying was limited (at its widest) to Honor Oak, and probably only to the yard and the materials in it. That distinction was not made clear to the reader of the affidavit, even though the e-mails themselves were quoted. It was not made clear in the skeleton argument either. (The distinction was certainly not clear to me on 26 January 2009 when I read that affidavit, as I still recall.) There was clearly no admission being made about either COC or Nunhead but the body of the affidavit, in the passages that I have quoted, suggested unequivocally that the admission covered all the sites. There was no other specific evidence in the affidavit implicating Mr Campbell/BTS in tipping activities at COC or Nunhead at all.

As Mrs Collins was to say in oral evidence at trial, the case against Mr Campbell/BTS in relation to the other two sites was based upon the “admissions” and an inference by Southwark that, because there was such substantial dumping “at the same time” these defendants were responsible for all of it:

In my judgment, the very least that should have been done was to explain, up front in the affidavit, that the “admission” (such as it was) actually referred to Honor Oak only and that the court was being invited to draw inferences in relation to the other sites. The affidavit as drafted created a seriously misleading impression in this respect, albeit unintentionally.

The next point concerns the evidence presented with regard to COC. The substantive evidence is confined to three paragraphs, paragraphs 47 to 49. These are very short and read as follows:

When one moves onto the section of the affidavit dealing with “full and frank disclosure” there is a lengthy section dealing with the complaint by Councillor Humphreys and it is argued that, if Mr Connor in due course sought to rely upon the Committee decision of 9 October 1996, he would not be justified in doing so. Paragraph 101 reads as follows:

I do not accept the submission, made for the first time in submissions in writing in September 2009, that the affidavit was saying that the activity about which Southwark was complaining in January 2009 was thought to have occurred in 2006 and that the 2003 activity was excluded. Nowhere in the body of the affidavit is that indicated. Indeed, the natural reading of the document is that the tipping in 2003 at COC was part of the claim. I regret that I am unable to accept Mrs Collins’ explanation of this in paragraphs 46 to 48 of her witness statement; it just does not square with the documents.

As I have found above, Mr Sheaff and Ms Davies clearly knew about the activity at COC in 2003 and went along with Mr Connor’s view that it was authorised by the 1996 Committee decision. Although the press article quoting the Council’s press release (as approved by Ms Davies) was exhibited, it was not referred to in the affidavit and no mention was made of the statement there made, which did not emanate from Mr Connor but from press office input, that “Health and Safety regulations are being rigorously followed to ensure that any soil used at the site is clean and uncontaminated…”. It was not made clear in the affidavit that, notwithstanding its contentions in 2009, in 2003 Southwark had been content that the work done was properly within the authority conferred by the Committee decision and had publicly stated that proper materials were being used. Further, contrary to the impression given by paragraph 101 of the affidavit, when Mrs Collins gave evidence, she (like Ms Davies before her) was unable to identify with any precision what “concealment” was being practised by Mr Connor in the information which he had provided in 2003: see Day 15 pp.179-180 and Day 16 pp. 4-5.

The disclosure made by Mrs Collins in paragraphs 88 to 101 of the affidavit was deficient in these respects also.

Next, I turn to the evidence presented about Nunhead. I have said little about this site in the earlier parts of this judgment. It is only at this stage of the matter that it still has any significant relevance. Mrs Collins’s affidavit said this about Nunhead:

In later material produced following the making of the applications to discharge the injunctions, Southwark has sought to excuse the paucity of the material deployed relating to Nunhead in the 2009 applications and to maintain its allegation that “it is highly likely that the Defendants are responsible for the dumping of waste at [Nunhead]”: see the summary set out in paragraph 15e of the Re-Amended Reply, A3/5/71-74. The fact remains, however, that Southwark “shot from the hip” with its 2009 allegations relating to Nunhead, without disclosing material that any semblance of diligent enquiry within its various departments should have revealed. The disclosure was not “full” and the vigour of the case made with against Mr Campbell/BTS, along with the other allegations, on this inadequate material was (in the result) not “frank” either. It is not only the duty of the claimant to disclose material facts: he must also present fairly the facts which he does disclose – see Civil Procedure 2010 Vol 1 paragraph 25.3.5, citing The Arena Corp v Schroeder [2003] EWHC 1089 (Ch). That duty was not complied with in this case, albeit the failure in this regard was not, I think, deliberate.

The next issue concerns the case on anticipated financial loss presented to the court by Southwark in January 2009.

In the affidavit Mrs Collins stated that it appeared that over 45,000 tonnes of waste had been fly-tipped, this being the figure for Honor Oak alone. She went onto say that Southwark had been advised that the removal/clean-up costs would exceed £5 million. (Footnote: ¹⁴) However, behind the scenes, the position at that time with regard to proposed remediation works at Honor Oak was not that clear cut.

From September 2008 Mr Waters had been taken off investigative duties with regard to what had happened at the cemeteries in the past and was charged with the task of managing the ongoing presence of the materials and remediation works. He was the senior council officer responsible for this aspect of the cemeteries problem. On 25 November 2008 he compiled a briefing document for Mrs Shepperd on waste management issues at the cemeteries. In that document he reported on “Planned Actions” at Honor Oak involving 1) “Clearance of concrete and road planings” (stated to be 4,500 cu. m.) (i.e. the yard materials) at a cost of £156,888; 2) “Re-profiling of overburden” (i.e. the mound in Area 1) (cost £37,480) and 3) “Asbestos removal” (uncosted provisional sum £20,000) – total £214,368, with a work duration time of 27 days. The paper continued:

At 0818 hours on 19 January 2009 (the day of the application to the court) Mr Waters provided a further briefing note for Mrs Shepperd about Honor Oak. This paper concluded as follows:

The areas of known asbestos contaminated material be excavated and disposed of;

The construction and demolition waste in the southern mound be removed to a waste recycling facility;

An Environmental Permit or exemption is being sought from the Environment Agency (EA) to enable the remaining nonhazardous material to remain on site;

All works to be approved and monitored by Environmental Health Officer.”

Both Mrs Shepperd and Mrs Collins were asked about Mr Waters’ papers and why the proposals contained in them were not disclosed to the court. Mrs Shepperd dismissed them as entirely optimistic and impractical. Mrs Collins said that she did not have sufficient detailed knowledge of them. I did not find the evidence of either of these witnesses satisfactory on this point.

I consider that the discharge of any sensible obligation of candour required these serious remedial proposals that were being suggested by the senior officer in charge of these matters to be disclosed to the court. Simply to suggest that it was likely to cost in excess of £5 million to remove the materials from Honor Oak, without disclosing that options for keeping the material on site were still being seriously put forward by the responsible council officer on the very day of the application, failed to meet the disclosure standards that this court expects. This is so even if the Chief Executive personally may have thought that such proposals were unlikely to come to fruition.

I accept Mr Howe’s submission, based upon Lombard North Central plc v Bradley [2002] EWHC 121 (QB) that a party may advance its reasonable arguable best case as the basis for the maximum amount to be covered by a freezing order. However, it should make it clear (if it be the case) that that is what is being done, but that options are actively being considered that might reduce the quantum of damage very considerably.

For full disclosure to be made the information should clearly have been disclosed. Its absence from the evidence gave a seriously misleading picture of the true position at the time.

The Defendants also criticise Southwark for its evidence to the court in January 2009 about the extent of its investigations – or perhaps more accurately a failure to disclose the limitations of the investigations that had been carried out up to that time.

In paragraphs 103 (and following) of the affidavit in support of the applications Mrs Collins gave evidence that Southwark had had to interview witnesses, consider documents and investigate computers. She said that the investigations were ongoing and that it had taken time for Southwark to identify the nature of the defendants’ involvement and to satisfy itself that no authority had been given to Mr Connor to allow the tipping to take place. In paragraph 14 of the skeleton argument the following was said:

The court still knows little about the nature of the investigation and what it revealed. Southwark, as is its right, has maintained its claim to legal professional privilege in respect of the activities of its solicitors in researching the background to the claim. However, it is difficult (absent explanation) to understand how (to give another example – see also paragraph 258 above) any competent investigation could have failed to reveal the involvement of Mr Lett in the early stages of the operations at Honor Oak and at COC. I have re-read Mr Howe’s submissions trying to explain this in paragraphs 235 and following of his closing submissions. However, it seems difficult to imagine that Mr Baxter’s e-mail of 25 June 2008 (quoted in paragraph 236.3) did not immediately indicate that the early development of the mound was historic rather than recent, whoever may have been responsible for creating it. I do not think that Mr Howe is correct in submitting that the obvious inference was that whoever had dumped the rubbish on top of the mound was necessarily responsible for creating the lower parts mound itself. Mr Lett’s name was clearly mentioned by Mr Baxter in June 2008 (see also paragraph 213 above) and Mr Baxter was endeavouring to get contact details for him in July. If the investigation had been as thorough as Southwark submitted to the court in January 2009, it seems remarkable that Mr Lett was not sought out before proceedings were begun.

In addition, there was the serious prevarication by Mr Sheaff when asked in 2008 by Mr Baxter for the identity of the contractor involved at COC in 2003. One would have thought that this might have led to some strenuous enquiries of Mr Sheaff on the subject prior to January 2009. I do not ignore the fact that at some date in or about September 2008 the EA asked that Southwark refrain from interviewing Mr Sheaff.

All this said, I am looking at this issue as one of material non-disclosure of facts, in the knowledge of Southwark, which ought to have been revealed at the time of the applications in January 2009. In the circumstances, I cannot find any clear evidence that Southwark actually knew at that time that Mr Lett had been responsible for the early activities at Honor Oak and COC in 2003. However, once Mr Lett’s evidence was to hand in August 2009 it must have been obvious to Southwark that its claims in respect of Honor Oak and COC against Mr Campbell and BTS had been seriously over-stated.

Yet, it was only at the Pre-Trial reviews in May 2010 that Southwark sought leave to amend its claim to restrict the claim in respect of Honor Oak to 26,000 tonnes of materials and to delete the claims in respect of COC and Nunhead. In my judgment, once Mr Lett’s evidence had been obtained serious consideration should have been given much earlier to amendments to the claim and to the basis on which the injunction orders had been obtained.

Southwark has continued on various occasions to state its belief that the Defendants were responsible for dumping at COC and Nunhead. However, belief is no substitute for evidence and the fact remains that in January 2009 Southwark did not have the necessary evidence against Mr Campbell/BTS in relation to COC or Nunhead. Its case that had been presented to the court at the outset was seriously compromised by the evidence of Mr Lett obtained in August 2009 which was not disclosed until the service of Mr Wakeman’s witness statement on a date sometime after 16 April 2010.

In my judgment, my conclusions on Points 1 to 4 above mean that the injunctions obtained in January 2009 must be discharged for material non-disclosure. My conclusion on Point 5 supports that view. They will remain in force until the hearing that I shall direct to be fixed for the handing down of this judgment and for submissions on consequential matters. One such matter may be whether the injunctions or any part or part of them should be re-imposed. My present inclination is to say that the non-disclosure was sufficiently serious to warrant a refusal of any further order, notwithstanding the entering of judgment against the Defendants in other respects: see the summary of Christopher Clarke J’s decision in Re OJSC Ank Yugraneft [2008] EWHC 2614 (Ch), given in Civil Procedure 2010 Vol 1 paragraph 25.3.8 p. 672.

The principal allegation, to which the rest are subsidiary, is that the proceedings were brought in bad faith to avoid the bringing of a prosecution by the EA. It is clear that at a meeting on 17 December 2008 Southwark was informed by representatives of the EA that “criminal charges were likely to be brought shortly and that the EA felt that they almost had sufficient evidence to charge the Council under section 33(1)(b)” of the Environmental Protection Act 1990. On 22 December Southwark’s solicitors wrote to the EA indicating their wish to make representations on Southwark’s behalf that the prosecution would not be appropriate. On 23 December Mr Innes of the EA replied in the following terms:

I was informed during the trial that instructions to Counsel to advise on the present proceedings had been delivered on 7 December 2008 and that advice was given in consultation on 12 December. While, of course, the advice given is not known, the court can only reasonably infer that Southwark were not advised that a claim against these defendants could not properly be brought.

I do not accept that this action was motivated by a desire to deflect the possible prosecution by the EA. Clearly, the proceedings were contemplated already, although it may be that the possibility of criminal proceedings may have injected a degree of urgency into the thinking of Southwark in wanting to be seen to be doing something positive to remedy the matter. That is a far cry, however, from the allegation made against it that the action was brought in bad faith for this purpose alone on inadequate evidence that Southwark did not believe supported any of the claims being made.

I turn to the specific allegations of bad faith. I refer in the headings below to the paragraphs of the Amended Defence of Mr Campbell/BTS.

I have found already that there is no evidence to support the allegation that Mr Connor was bribed or that he received any other corrupt payment with regard to this matter. However, I do not consider that it was unreasonable for Southwark to infer in January 2009 that he was involved in a dishonest fashion in what had happened. To a degree Mr Connor has only himself to blame for the fact that these allegations were made against him. He was undoubtedly lax in his supervision of what went on at Honor Oak and the fact that Mr Campbell took liberties with the limited permission given to him only fuelled suspicion of something worse on Mr Connor’s part.

As I have said above, any competent investigation of these matters should have revealed the involvement of Mr Lett. I have dealt with this above. However, this does not indicate to me that the action was commenced by Southwark in bad faith.

The evidence against Mr Campbell/BTS in relation to Nunhead was to all intents and purposes non-existent in January 2009, even though Southwark may have had understandable human suspicions that those involved at Honor Oak may well have been involved in tipping at this site also.

Again, what I have said above is sufficient to indicate that, in my judgment, Southwark’s investigations prior to instigating proceedings should have thrown up Mr Lett’s involvement. However, the failings in this respect do not demonstrate an action brought in bad faith.

I find it very surprising indeed that Southwark did not interview Mr Sheaff, before starting proceedings. I have heard no satisfactory explanation of why Southwark simply bowed throughout to the EA’s apparent request that Mr Sheaff, be kept apart from the investigation to such an extent that he was not spoken to for the purposes of preparing the proceedings. I am told that Mr Waters and Ms Davies were seen before the action was begun. It is surprising, however, that so many of the difficulties that emerged at trial did not become apparent then. Even if some of those interviewed had given evasive answers (as they did at trial) Southwark should have been forewarned of dangers ahead. I do not understand why Southwark could not have simply approached the EA and told them that Mr Sheaff had to be interviewed for the purpose of civil proceedings. There could have been no reasonable objection to such a course as far as I can judge.

None of this, however, shows that the action was brought in bad faith.

I have dealt with this above. The evidence, as I have found, was seriously misleading and/or deficient in a number of respects. Mrs Collins was accused in the witness box of having lied about these matters. I do not think that she was deliberately dishonest in making her affidavit in January 2009. If she had carefully checked the drafts and the materials produced in support, I think she would have realised that Mr Connor’s “admissions” went nothing like as far as was claimed for them in the affidavit. She would also have realised that, without the “admission”, there was really nothing in the evidence to be put before the court to support the claims made against Mr Campbell/BTS in respect of COC and Nunhead. In addition, she should perhaps have appreciated that the passages dealing with events at COC in 2003 threw up as many questions as they gave answers.

In these respects, I think the affidavit reveals the danger in permitting a legal adviser, even an “in-house” adviser, to depose to the facts of a case which are not within his or her personal experience. Mrs Collins had instructed solicitors and counsel to consider material in the case which, no doubt, she had been advised disclosed a good case against these defendants. In the usual way, I infer, the draft of the affidavit will have been the work product of these advisers, based on materials provided to them and reflecting their assessment of them. (Footnote: ¹⁵) They would have advised as to what claims the evidence appeared to justify and the affidavit must have been prepared and expressed in language to reflect that view. In going along with such assessment, Mrs Collins made a misjudgement which she should not have made, but it was a misjudgement that must, I think, have been shared by those advising Southwark at the time.

The other deficiency in the affidavit was the assessment of the cost of remedial works. The figure of £5 million was mentioned without reference to the other proposals that were being actively considered at Southwark at the time. In evidence, Mrs Collins seemed to appreciate that the evidence was defective and that she had known personally of the nature of the other proposals being suggested: see Day 16 pp. 49-73. I think that Mrs Collins must have appreciated, when she saw paragraph 6 of her affidavit in draft, that the picture painted there was at that time a considerable over-simplification of the various proposals being considered and that it stated only the “worst case” that was then anticipated.

Again, however, I do not consider that these findings demonstrate that the action was brought in bad faith in January 2009. It should have been appreciated that the evidence did not justify some of the claims being made but I do not find that this tainted the action as a whole.

I refer to my findings above about this.

It remains to consider the relief to which Southwark is entitled as a consequence of my findings above.

Before dealing with quantum of damage, I should address those matters which have been raised as general defences to the claims made by Southwark. These points have shifted and differed in emphasis as the proceedings have run their course. However, they are summarised in paragraph 180 of the closing submissions of Mr Howe and Mr Segan, as follows: (i) it was not reasonable of Southwark to carry out the works that they have carried out; (ii) some of the materials in the yard could have been recovered at little or no cost; (iii) there was a failure to mitigate in Southwark’s failure to accept what had come to be known as “the Hinkcroft Offer”; and (iv) the works were caused by the instability of the mound which was a supervening event. Only item (iii) was advanced in closing submissions. In any event, there was no evidence adduced that persuaded me that Southwark had acted unreasonably in deciding to move the offending materials.

The “Hinkcroft Offer” was the term used to describe the offers that came to Mr Sheaff’s attention via Mr Connor. I have dealt with the broad history of the offers above. They were in essence offers by Mr Campbell/BTS to remove the materials from the yard at no cost. I have found that Mr Campbell did make some such offer or offers. Mr Sheaff was enthusiastic in his support for accepting them. Mr Waters was concerned about the legalities, but received some re-assurance by way of further information obtained from Mr Connor via Mr Sheaff. He also received legal advice from Mr Hamish Craig that it might be possible to achieve the removal of the materials lawfully as proposed. I have set out all this above. The precise circumstances in which the “offers” were not taken up are not entirely clear and I think that there is some force in the defendants’ contentions that Southwark’s witnesses had some difficulties in answering specifically why the individual objections which they perceived showed that the offers were not theoretically viable.

Mr Page submits that if I find such offers were made “it offers a complete defence to D2 if an offer to remove the material without charge was made”. I do not agree. Southwark were fully entitled to be very cautious about offers made by Mr Campbell/BTS. It was known by that stage that Mr Campbell had made several promises in the past to Mr Connor to deal with the material, but these had come to nothing. Mr Waters and Mr Toy who were principally concerned with this had no concrete proposals before them. As Mr Howe submits:

I accept as full justification for the failure to take up the “offers” Mr Toy’s evidence that

There was never sufficient assurance as to the quality of the offer made that could conceivably disentitle Southwark to damages for an insult to its land which was still in the very earliest state of investigation. A claimant is allowed considerably leeway in law for its decisions made under stressful and uncertain circumstances before it is found not properly to have mitigated its loss.

I turn to the question of the losses recoverable.

I think it is clear that Southwark is entitled to damages from each of the defendants in respect of the cost of removing 70% of the wall materials from the compound. That is 70% of £233,788 or £163,651. .

They are also entitled to recover from Mr Campbell/BTS the cost of removal of material from inside the yard, save in so far as that includes the residue of the scalpings which I have found Mr Connor was entitled to cause to be imported for cemetery purposes. In my judgment, (if the matter cannot be agreed) it is necessary to hear further argument as to what proportion of the yard materials is properly attributable to these scalpings and to deduct that from the £204,980 claimed. I have endeavoured to discern that from the materials produced by Mr Evans but have not been able to do so satisfactorily.

Mr Campbell and BTS have raised the objection that some or all of this was capable of being re-cycled and that therefore the recoverable costs should only be for removal and not removal to land fill.

In my judgment, confronted by the scene left by Mr Campbell and BTS which, for months, they had been promising Mr Connor would be remedied, Southwark was entitled to take a robust approach to removing the offending material. A landowner is entitled to latitude in removing a trespass to his land, particularly when the trespasser has had every opportunity, as these defendants had, to remedy the matter himself. The removal costs incurred have not, in my judgment, been shown to be unreasonable. They were incurred as part of a sensible scheme to restore the site to an acceptable state in as speedy a time as possible. In my judgment, they should receive an appropriate proportion of their costs actually incurred in doing this.

I think that Mr Campbell/BTS are liable for the cost of removal of 40% of the volume of the Area 1 mound as found in 2008, as submitted in paragraph 163-4 and 178 of Mr Howe’s closing submissions, i.e. £873,104, less some allowance for the tipping of some grave spoil in Area 1 between 2006 and 2009. As to this allowance, again I think there must be further argument unless there is agreement in the meantime.

For the reasons given in paragraphs 159 to 163 above, I conclude that Mr Connor is not liable for all the costs of removing materials from the yard and Area 1. While he was in breach of duty by not involving his employers in the problem that I believe he appreciated by about the middle of 2007, a very substantial amount of the tipping on Area 1 had already occurred by then. If he had involved more senior managers at Southwark at that stage more effective action might have been taken rather earlier than it was. There is no entirely reliable way of assessing what materials arrived on site after (say) June 2007. A very rough assessment might be made by saying that Mr Connor ought to have initiated steps to prevent 6 months activity by Mr Campbell/BTS out of a two year period. On this basis, Mr Connor’s inaction contributed to 25% of the unlawful tipping. However, on this too, I consider that further argument is required in the light of my findings, unless the parties can agree a figure.

Finally, as to professional fees, Southwark is entitled to an appropriate proportion of these. Again, I do not think that I can determine what that proportion is without further submissions in the light of my findings.

To summarise, therefore,

There will be judgment against all defendants for £163,651 in respect of the cost of removal of the walls of the yard.

There will be judgment against Mr Campbell/BTS for £873,104 in respect of removal of 40% of the volume of materials on Area 1 (less an allowance to be determined in respect of the tipping of grave spoil on that area) and for a further sum to be determined in respect of the removal of the waste and other detritus in the yard, excluding however the residue of the scalpings brought in for proper cemetery purposes

There will be judgment against Mr Connor for a proportion to be determined in respect of the cost of removal of the contents of the yard and the Area 1 materials to be taken to have been wrongfully deposited from July to December 2007. This is for further argument.

There will be judgment for an appropriate proportion of the professional fees claimed.

The injunctions granted on 19 and 26 January 2009 will be discharged at the conclusion of the hearing following the handing down of this judgment. The injunctions will remain in place until then. I will hear argument as to whether further injunctions should be granted or withheld in aid of the money judgments that will be entered against each defendant for differing sums as a result of my findings.

The claims against Mr Connor for an account of secret commissions, alleged to have been paid to him by Mr Campbell/BTS, are dismissed.