A prosecution, a libel case and the IWM

Some readers, especially in the waste sector, may know that libel proceedings were initiated against ENDS in March 1996 by John Birch, at the time President of the Institute of Wastes Management (IWM). The action was announced in the IWM's journal, Wastes Management, which has not carried any update on the case. We feel that readers may wish to be informed of subsequent developments, as well as the implications for the IWM itself.

The libel action related to our coverage of a prosecution brought by Lincolnshire County Council (LCC) against Lincwaste (ENDS Report 258, pp 21-24 ). Mr Birch was Managing Director of the company at the time the offences concerned were committed in 1994. Lincwaste was acquired by Waste Recycling Group (WRG) in mid-1995 and pleaded guilty to two charges when the matter came to court in February 1996.

The charges related to Lincwaste's failure to comply with licence conditions intended to prevent groundwater pollution from its Leadenham landfill. The licence required larger fissures in the base and sides of the site to be sealed, and the base covered by an "attenuation blanket" of specified characteristics.

These conditions were breached when a new cell was prepared in summer 1994. The gravity of the offences, which could have resulted in significant groundwater remediation liabilities passing to WRG, was compounded by Lincwaste's persistent written denials that anything was amiss, as well as its failure to comply with the council's requests that tipping in the cell should cease while the matter was investigated. In February 1996, Grantham magistrates fined Lincwaste £20,000, with £20,000 in costs.

In his subsequent libel action, Mr Birch demanded a retraction, an apology and damages in connection with our coverage of the case. ENDS defended itself vigorously, and the action was withdrawn unconditionally last February.

Responding to Mr Birch's own demands, we immediately wrote to him offering to consider any material which supported his contention that we had libelled him. We received no reply for more than five months until he heard that we had approached the IWM about the matter (see below).

Mr Birch's claim boiled down to three points. One of these concerned our report of a statement by counsel for Lincwaste during the hearing in Grantham - that WRG had not been given, as part of the process of disclosure before it acquired Lincwaste, a letter sent to Mr Birch by LCC in March 1995 warning him to expect a prosecution.

We believe it to be in order to report statements made in open court. However, we are now prepared to say, entirely of our own volition, that we have received information which suggests that the statement made by Lincwaste's counsel may have been incorrect. We do not believe that the matter is one that we can go any further towards resolving.

The second ground of Mr Birch's claim was that we made unwarranted inferences about his personal involvement in the events at Leadenham. We reject this, but nevertheless feel it proper to record his contention that non-compliance with the licence occurred because three specific Lincwaste employees failed to carry out their duties and then misled him on several occasions when pressed to say whether there had been full compliance.

These allegations could scarcely be more serious. The licence breaches resulted in Lincwaste incurring costs of several hundred thousand pounds, as well as - at the time - the likelihood of a prosecution.

In the light of Mr Birch's account - and it should be noted that he was not Lincwaste's sole director - we consider it incomprehensible that those employees were not sacked on the spot. Indeed, no disciplinary action of any substance was evidently taken against them. We also consider it important to record that WRG, which took the matter extremely seriously, carried out its own inquiry into the case and retained two of the three employees in their posts; the third was made redundant for wholly unconnected reasons.

The third ground of Mr Birch's claim was that we had invited our readers to conclude that he was unfit to remain as President of the IWM. In fact, we expressly invited readers to "draw their own conclusions", knowing that there was likely to be a spectrum of views on the matter.

The IWM itself considered the matter worth investigating because, in response to our coverage, it invited Mr Birch to give his version of events to its Executive Committee.

IWM members must abide by a code of conduct. This obliges each of them:

  • To "uphold the reputation and standing of the Institute and the professional practice of waste management."

  • "Whether by act or omission [not to] do anything which may bring the Institute...or the professional practice of wastes management...into disrepute, or behave in a way which is inconsistent with, conflicts with, or is detrimental to the objects and interests of the Institute."

  • To be "dedicated to the protection of the environment and act honestly and diligently to achieve high standards."

  • To "uphold the law" and "not allow himself to be placed in a position where his integrity or that of the Institute might be questioned or compromised."

  • Not to allow his "professional judgement or compliance with this code to be influenced by any improper pressure howsoever arising."

    In April 1996, the IWM's Executive Committee circulated to its branches and published in Wastes Management a statement which noted that it had taken "very seriously" the "allegations" made against Mr Birch and had conducted a "detailed examination" of the case.

    The statement added that Mr Birch should have "every opportunity" to pursue his libel action, and had promised to keep the Institute "fully informed as to the progress of his proceedings." Meanwhile, he had "decided to withdraw from the formal activities of the Institute while remaining President." The Committee also expressed support for Mr Birch.

    In July, ENDS asked the IWM's Chief Executive, Mike Philpott, whether Mr Birch had in fact kept the Institute "fully informed". He replied that no formal communication had been received from Mr Birch, and was evidently surprised to hear that the libel action had been terminated five months earlier. He also said he would consider publishing a further statement in Wastes Management, but informed us later that the matter had been referred to the IWM's solicitors.

    In conducting its "detailed examination" of the case, the IWM's Executive Committee had the opportunity to seek evidence from a number of sources. Among these were:

  • A transcript of the proceedings before Grantham magistrates.

  • Material on the LCC's public register, including extensive correspondence between the council and Lincwaste about the events at Leadenham.

  • Lincwaste's employees, some of whom are IWM members.

  • The LCC's waste regulators, who are also IWM members.

    In fact, the Committee appears to have relied solely on Mr Birch's own testimony.

    The IWM's handling of the affair has drawn attention to its approach to disciplinary matters generally. The Institute has a disciplinary procedure, but Mr Philpott said that during his 18 months or so in office this had only been used once in connection with unwarranted allegations made by one member against another in the course of a legal action for non-payment of fees. ENDS knows of no other earlier cases.

    A fundamental weakness of the disciplinary procedure is that it can only be triggered by a written complaint. The IWM does not initiate investigations in response, for example, to criminal convictions of its corporate or non-corporate members to determine whether the procedure should be invoked. It does not even oblige members to notify it of any convictions, although Mr Philpott said that this will soon be made a requirement. Even then, individuals responsible by act or omission for events resulting in the conviction of their companies or employers will be under no threat of investigation or sanction by the IWM.

    Clearly, these considerations call into question the credibility of the IWM's code of conduct and disciplinary procedure - particularly at a time when it is aspiring to chartered status.

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