The trustees of the Garden Bridge Trust may have breached their legal duties to act with reasonable skill and care, in the opinion of a leading QC
In an 11-page legal opinion seen by the AJ, Jason Coppel QC, an expert in Public and Procurement law, said it was ‘likely’ that the trustees – who include Garden Bridge champion Joanna Lumley and former chief government construction adviser Paul Morrell – breached these duties ‘in particular in relation to the conclusion of the construction contract with Bouygues’.
Under charity law, trustees can become personally liable and, although any such claim would face substantial challenges, the QC’s opinion suggests there may be the possibility of a legal claim being brought against them.
The opinion also raises serious questions for charities regulator the Charity Commission and the trust’s public sector sponsor, Transport for London (TfL), to consider.
It is not known whether the trust, a registered charity now in the process of winding up, has itself sought legal advice on the question of a potential breach of legal duty by trustees. After being approached by the AJ, the trustees declined to comment but are understood to believe strongly that they acted at all times in accordance with their fiduciary duties.
The party who commissioned the opinion, who wishes to remain anonymous, asked Coppel to advise on a potential claim for breach of duty against the trustees following the cancellation of the Garden Bridge last year and the loss of an estimated £46 million of public money.
In the opinion, which was written before the publication of the Garden Bridge Trust’s board meeting minutes, Coppel noted that a ‘substantial proportion’ of the criticism directed against the Garden Bridge concerned TfL’s procurement of Heatherwick Studio and Arup, something ‘for which the trust was not responsible’.
However, he added: ‘There were […] a number of matters which have been laid at the door of the trust, in particular the decision to enter into a construction contract with the Bouygues-TP Cimolai joint venture […] at a time when the trust had neither secured all of the necessary funding for the project nor the necessary rights to use the land which would be required for the project.’
As the AJ has reported, trustees were told at a board meeting shortly before the contract was signed on 9 February 2016 that a funding gap of up to £54 million existed and the project faced 22 ‘significant hurdles’ including obtaining permission to use the land on the southern side of the Thames from leaseholder Coin Street Community Builders.
Coppel cited the Hodge report – which was highly critical of the signing of the construction contract – and said he was unconvinced by a largely favourable report on the Trust published by the Charity Commission in early 2017 which found that the trustees were meeting their duties and acting in accordance with charity law.
‘Like [Hodge], I do not regard the conclusions of the Commission as providing a sufficient answer to an allegation of breach of the equitable duty of care, not least in the light of events which subsequently ensued,’ Coppel said.
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However, the QC went on to argue that taking legal action against the trustees would not be straightforward, partly because the beneficiaries of the Garden Bridge Trust were identified as ‘members of the public at large’.
‘The principal difficulty is that any potential claimant would not have suffered any loss as a result of the trustees’ actions,’ Coppel said. ‘All of the reported cases of which I am aware have involved actions by [charity] beneficiaries who have themselves suffered loss, directly or indirectly, as a result of loss to the trust in question.’
Coppel’s advice was obtained for his anonymous client by Unity Legal Solutions, a firm providing services to consumers of legal advice.
Roger Billins, one of the founders of Unity, said it was now exploring other potential legal remedies against the Garden Bridge Trust.
He said: ‘Unity has been looking at other avenues to enable a member of the public to force the relevant public authorities to take action against the trustees.
‘We have asked a second QC to advise as to whether judicial review proceedings can be brought against either the Charity Commission or TfL with a view to recovering the public money wasted by this vanity project.’
London Assembly member and chair of the transport committee Caroline Pidgeon said Coppel’s opinion showed the Commission needed to ‘step up to the plate’.
‘The Charity Commission claims its hands are largely tied, yet there is now clear legal advice that the trustees might have breached their duty to act with reasonable skill and care,’ she said.
Pidgeon also called on London mayor and chair of TfL Sadiq Khan to launch a new inquiry.
She said: ‘At a time when TfL is running a billion pound deficit I am amazed that the Mayor of London is so reluctant to investigate whether public money can now be recovered. It is long overdue that the Garden Bridge trustees faced exactly the same level of scrutiny as faced by the trustees of Kids Company.’
Shadow communities secretary Andrew Gwynne MP also drew a parallel with Kids Company, the controversial charity which also received £46 million of public money and closed in 2015.
‘Tens of millions of pounds have been lost and tax payers deserve an explanation,’ Gwynne said.
‘When Kids Company failed, ministers intervened and brought proceedings against those leading the project – but there has been no interest from the government in the Garden Bridge project.
‘Far too many questions remain outstanding about the governance and use of public funds. We need to see a Parliamentary inquiry into this mess.’
A spokesperson for the Charity Commission said: ‘Coppel QC has not shared his opinion or raised formal concerns with us. Any new evidence or analysis that might be contained in that opinion, or be submitted by any other party, will be assessed in line with our normal processes. In the meantime, we stand by our findings and conclusions.
‘These were based on full access to the charity’s internal books and records, on interviews with the trustees, and on our assessment of a trustee meeting witnessed by senior case workers. We are not aware that any other party has access to evidence or information that we have not fully assessed.’
A spokesman for London mayor Sadiq Khan said: ‘Since he took office, Sadiq has always been clear that not a single penny more of taxpayers’ money controlled by him should be spent on the Garden Bridge project.
‘He commissioned Dame Margaret Hodge to conduct an independent review into the project, which led him to decide not to provide Mayoral guarantees for the Garden Bridge, as it showed there would be a substantial financial risk to the taxpayer.’
Along with Lumley and Morrell, there are nine other trustees of the Garden Bridge Trust. They are: chairman and life peer Mervyn Davies; City PR chief Roland Rudd; leadership and governance adviser Andrew Lowenthal; former Goldman Sachs MD Robert Suss; former chairman of law firm Eversheds John Heaps; Ernst & Young partner Julie Carlyle; chief executive of events firm UBM Lucy Dimes; fund manager Stephen Fitzgerald; and Alastair Subba Row, a senior partner at real estate adviser Farebrother. Lowenthal and Suss were both appointed as trustees after the signing of the construction contract with Bouygues. Former trustees Jim Gardiner and Clare Foges stepped down in October 2016 and November 2017 respectively.