With costs escalating all round – Mr Kidner is using a firm who is charging 75% of a “No-win, no -fee” arrangement – the parties were getting worried. But help was at hand for the plaintiff. A confidential letter has been helpfully if perhaps inadvertently sent to Brian Herrick by County Hall (perhaps someone was getting pangs of conscience?)

Mr.Kidner wanted to pull out and now said he was satisfied that the gates left locked open was a sensible solution. But SCC could not sue the Herrick's on their own.

On 18 February 2008 Nina Hirst of Legal Services, County Hall, reassured Zermansky & Partners, the plaintiff’s solicitors, that “the Council will not resist an application that it should bear those costs (i.e. the Herrick's costs if they win) on its own and it will not seek a contribution from your client (Mr.Kidner).”

She also added perhaps unnecessarily, that “I emphasise here the necessity that this correspondence is kept confidential.” Anyone know why?

Another helpful letter has arisen from Zermansky’s addressed to Mark Abbott (Legal Services) dated 29 January 2008 in which they suggest that “on the basis of an undertaking by the Herricks to keep the gates permanently open the appeal could be allowed by consent.” Phew! But sadly this common sense approach was rejected. A full discussion of the strengths, weaknesses and tactics to be employed was also spelled out. Most enlightening.

It is not known if this indemnity covers future legal costs, but no doubt we shall learn in due course. (Councilors – and everyone else – please keep asking).

The matter was reported to the District Auditor who although deciding not to issue a notice certainly would not comment on the lawfulness of the matter in fact he said:
" I’m afraid I must disagree with your comment “that by not issuing at this stage an advisory notice against SCC you agree to allow the Council to state that they had not acted ‘improperly’ in their statement”. This is clearly not the case and the two are not connected."