Category: Litigation

It’s been a busy start to 2025, including the long-awaited court case on our Village Green registration. This post isn’t going to be directly about the court case and the judge’s decision won’t be published for a few months. But one aspect of the case that caught the eye of journalists during the trial was the claim by Sandra Fryer, Cotham’ School’s Chair of Governors, that spending hundreds of thousands of pounds of public money on a High Court row over a fence was “worth it”.

You can see the BBC report here. Sandra Fryer is quoted as saying that the fence originally cost about £30,000. The numbers involved with the fence are a whole other story, and you can read more about it here.

Ms Fryer’s key quote is this:

“We estimate that these fields are worth some £20m to the school. Whilst we’re not using this field we have to rent alternative space at a cost of upwards of £50,000 per annum. If you gross that up over the period of the lease, that comes up in excess of £20m so £50,000 plus interest over 110 years.”

We’ve been asked a few questions about this £20m claim and we think it discloses some basic errors from this specialist maths academy.

First, it seems that what Ms Fryer has done to reach the £20m figure is to work out the aggregate of all the annual payments for 110 years, if you take £50k as the starting point and increase it by a percentage per year (say 2%). In maths terms, that is the sum of a geometric series. We don’t know precisely what numbers they used but the total payments based on an annual payment of £50k increasing at 2% per year over 110 years would be around £16.1m.

But, as anyone operating in the real world will realise, you don’t need £20m now in order to pay a total of £20m over 110 years, because of the time value of money. The proper thing to do is to discount that total back to find the present value of the money you would need today to fund that ongoing cash flow over time. And the answer to that is just under £1.5m. Still a chunk of cash, but nothing like the £20m claimed by Ms Fryer.

All of these numbers are ‘unreal’ – no one knows what interest rates will actually be, or what discount rate would be the most accurate to use. But just adding up all the numbers as if you have to have access to the cash now is clearly wrong. It’s a conjuror’s distraction technique – look at the shiny thing over there!

But if we’re talking conceptually, it’s important to remember that this isn’t the whole story. Ms Fryer’s claim is that while Cotham School is not using Stoke Lodge, they have to use alternative facilities (rented from Shine at Golden Hill). But when Cotham School is using Stoke Lodge, it has to pay for maintenance at Stoke Lodge. It’s not doing that at the moment (local clubs have stepped up to do the maintenance themselves in return for use of the pitches – an arrangement that is working really well). So if they’re going to make a claim about how much use of Stoke Lodge is ‘worth’, then they have to net off those costs, calculated on the same basis. We know that in 2017-18 Cotham paid the University of Bristol £25,632.58 for maintenance. We also know that they claim to have obtained maintenance services more cheaply from 2019 onwards (though we haven’t seen proof of that). Let’s be generous and assume it was costing Cotham £20k per year to maintain Stoke Lodge before the Village Green was registered. That cost, increased by 2% per year over 110 years and discounted back to present values, is £585,333.

So the difference now (what Stoke Lodge is ‘worth’ to Cotham) is £1,463,350 – £585,333 = £878,017. The analysis that the court case is ‘worth it’ starts to look more shaky – we know that Cotham School had already spent over £100k on its fight for a fence by July 2018, and it told the Information Commissioner that it had no idea how much it had spent by July 2023 because it wasn’t keeping track and it was too difficult to add it all up. But we also know what the court costs look like and the potential cost risk to the school. Things are beginning to look much more finely balanced.

But there’s more – and this is where the fruit comes in. You can find out online how much it costs to hire the astroturf pitch at Golden Hill. It’s £105 for an hour or £157.50 for 90 minutes. And there are 190 days in a year on which pupils attend school. So if we assumed they were having 2 x 60 minute lessons on every single day of the school year, that would come to £39,900. 2 x 90 minute lessons would come to £59,850. Our guess is that in fact Cotham has block-booked 9am to 1pm on every day of the school year and negotiated a price of £50k+ for having that exclusivity and flexibility of timing of arrival/departure. Fair enough. But they also need to keep it real. There is no astroturf at Stoke Lodge (though it appears to be one of Cotham’s future development ambitions) and use of the field is limited not only by the weather conditions on any given day but by the ground being waterlogged in some seasons. Our observations are that the school typically used Stoke Lodge more like 6-7 times a week than 10 times. And use of the field was typically for 45-50 minutes at a time, because getting on and off coaches and travelling between Cotham and Stoke Lodge takes time. Travel time should be less to Golden Hill, which hopefully means pupils are now getting more actual PE time. If the school was using the astroturf pitch on its main site, they would get even more – and for free!

So the comparison being made is between apples and pears, and what Ms Fryer may really be saying is that providing more and better PE lessons to pupils at Golden Hill, costs more money than if they came back to use Stoke Lodge – which is something they are able to do at any time:

‘The court was told that neither Ofsted, the Department for Education, nor Bristol City Council considered fencing necessary, and that – up and down the country – many schools played sport on shared public fields.’

And the flipside of Ms Fryer’s thinking is that, in order to get the better deal that she perceives Stoke Lodge as providing to the school in the long term, and for the sake of potential pupils 100 years in the future, she is willing (even happy) to spend hundreds of thousands of pounds of education (public) funds that was granted for the benefit of pupils who are currently at the school. Parents of today’s pupils may view the situation differently.

But the main thing is this – none of this needed to happen. Ms Fryer herself gave evidence in the TVG1 public inquiry that sharing Stoke Lodge with the community was not a problem up to 2013 when the school ceased use (around the time that it started to claim that shared use was incompatible with its statutory duties). Imagine a parallel universe in which Cotham School had worked with the local community or accepted the various offers made to it over time. The money saved by the school by not going to war with the community would have been worth a LOT in 110 years’ time.

We highlighted a few months ago that, based on Cotham School’s responses to FOI requests and its detailed responses to the Information Commissioner’s Office, it appears that no one at Cotham has any idea how much money it spent on legal fees fighting the TVG2/3 process from late 2018 up to June 2023 (when the Public Rights of Way and Greens Committee voted 6:1 that Stoke Lodge should be registered as a village green). You can read more about how we reached that conclusion here. It seems that no governor or senior leader of the school has ever been told – or has ever asked – how much of the school’s reserves were spent on the effort to keep Stoke Lodge fenced off. Apparently there’s just a blank cheque for legal fees and no one is asking questions.

Immediately after the PROWG Committee’s decision in June 2023, the school took steps towards court action to challenge the registration. Court action is expensive, so you would think the governors would be closely involved in decision-making around starting, and continuing, legal action. The thing is, according to the school’s official records, that isn’t the case. The PROWG Committee decided to register the land on 28 June 2023, but at the school’s Full Governing Body meeting on 6 July 2023 (just over a week later) apparently no one mentioned Stoke Lodge at all. At the September meeting the governors decided to stop hiring the pitches to local clubs, and then at the 7 December meeting there is again no mention of Stoke Lodge (even though the school’s second legal action had been launched not long before that meeting). This just seems peculiar – a decision to stop hiring out pitches (which makes the school £6-7k per year) was worth minuting and highlighting in bold – but a decision to launch litigation costing many tens of thousands of pounds and risking far more, is nowhere to be found.

You might wonder if the decision was taken by a sub-committee – but the minutes of the November meeting of the Finance, Premises and General Purposes Committee are also silent on Stoke Lodge matters. That meeting is particularly interesting because it was attended by the auditor who was preparing the school’s annual accounts. Governors were asked whether they were aware of ‘any legal claims, either ongoing or anticipated’ and they said ‘No’.

You might assume that governors are being given information in some other form – in special briefings outside of governor meetings, perhaps, or in verbal updates. But according to the school’s response to another recent FOI request that’s not the case:

The fact is that, as far as the school’s own records show, Cotham School’s governing body has astonishingly little involvement in, knowledge of or control over the decision-making process around its Stoke Lodge litigation. There is no evidence of a decision by the governors that they want the school to spend its reserves on litigation rather than education. Governors may have asked for information in more recent meetings, but no minutes of full governing body meetings have been published since December 2023.

So – are the governors being kept in the dark? Do they know how much money was spent on the TVG process up to June 2023? Do they know how much is being spent on the litigation now, how much more is at risk for the school and how that will impact on Cotham students? Have governors been allowed to consider the alternatives? If they are not taking these critical financial decisions as a governing body, who is?

If you see a Cotham governor out and about, why not ask them yourself?

One question we’re often asked is “How much is Cotham spending on fighting the TVG?”

It’s a reasonable question – and one that Cotham School answered in relation to TVG1, confirming on 3 July 2018 in response to an FOI request that:

‘Professional and legal expenses in association with the TVG
application have totalled £100,752.73 and include legal fees,
public inquiry costs and the judicial review.’

That marked the end of the TVG1 process – so what about legal costs for TVG2 and 3? Apparently that’s an extremely difficult question to answer. In fact, a recent decision by the Information Commissioner sets out at some length just how complicated the school has claimed it would be to work out how much they have spent, including a number of different processes that would ultimately require ‘a total of 31 hours 24 minutes to determine whether it holds the information, locate, retrieve and extract the information requested’.

Due to that time estimate, the school refused the request as manifestly unreasonable and, based on their submissions, the Information Commissioner has upheld that refusal (but ordered the school to provide advice and assistance to help the requester to rephrase their request in a way that would allow the school to provide some information).

The school pointed out to the ICO that ‘the amount spent overall on legal professional services each year is publicly available in the school’s accounts’. That’s true: the numbers for the school’s total legal spend on all matters are:

• year ending August 2021: £103,858
• year ending August 2022: £91,029

So typically, ‘legal and professional’ fees costs (including some TVG-related legal costs) seem to run at around £100k. But in the academic year 2022/23, which included most of the lengthy final TVG2/3 submissions, the amount was £174,576. It might be reasonable to assume that most of the excess was TVG-related in that year, plus additional amounts for submissions made in previous years.

But here’s the thing. If what Cotham School has told the Information Commissioner about how difficult it would be to calculate their legal costs is true, then it means that they would be doing it for the first time. Which means that they have not tracked their legal costs for fighting the TVG from 2018 to 2023 and that no governor or senior leader of the school has ever been told – or has ever asked – how much of the school’s reserves have been spent on the effort to keep Stoke Lodge fenced off. It means that, based on the school’s submissions to the ICO, Cotham’s governors apparently have no idea at all how much has been spent, because if they had been kept informed then it wouldn’t take 31+ hours to find the information. And if anything about this is manifestly unreasonable, surely it would be a failure to monitor how much of the school’s resources are being spent on this. Have the governors really approved a blank cheque, regardless of the consequences?

All this was before the current litigation started, and litigation is where the costs start to add up quickly. The High Court has already ruled that Cotham was not eligible for the type of costs protection it wanted, because that is not available for the claim it is bringing. There is no doubt that the school is about to spend a lot of money on legal fees – more than ever before. So is any governor – or the Department for Education – keeping track of how much? Because remember, Ofsted and the DfE are clear that they don’t require playing fields to be fenced. Plenty of schools in Bristol and elsewhere do PE on public access pitches. And every pound spent on litigation is a pound not spent on education.

Ten years ago today (on 24 March 2014), two Cotham School employees (its Facilities Manager and Business Manager at the time) visited Stoke Lodge Playing Fields to conduct a risk assessment. Cotham had been using Stoke Lodge for PE lessons since 1 September 2000, but this was the very first time it had assessed whether there were any risks to be mitigated at the playing fields. We know from evidence given by Sandra Fryer, the Chair of Governors, to the TVG1 public inquiry in 2016, that she personally requested the risk assessment.

Why the specific need for a risk assessment at that point? Three days earlier, consultants (who had been commissioned to advise the school on its proposed bid for grant funding), had produced a report stating that Cotham would be more likely to succeed in a bid for grant funding if the application involved safeguarding risks or sports facilities.

The consultants’ report was presented to Cotham’s Finance, Property & General Purposes Committee (of which Ms Fryer was also chair) on 24 March 2014, alongside the risk assessment report that had been created that same day at her request, and that purported to identify safeguarding risks at a sports facility. Here’s an extract from the minutes of that meeting:

Here’s the first page of the risk assessment that the governors were looking at in that meeting:

There are a few things to note here:

• First, the school’s claim that it was forced to stop using Stoke Lodge in response to the risk assessment and that it started using Coombe Dingle instead is not, and will never be, true. It had stopped using Stoke Lodge well before the end of 2013, and had been using Coombe Dingle for years as its preferred location anyway.
• Secondly, the governors did not consider that a full perimeter fence was required in order for it to resume doing PE at Stoke Lodge – the minutes refer to repairing existing fences and putting some signs up, and going back in September. It also acknowledges that it would be unwise to spend money on fencing before the outcome of the ongoing Village Green application was known! Ms Fryer reported to the Full Governing Body Meeting on 2 April 2014 that ‘The Stoke Lodge risk assessment has been completed, to be back in use in September’. You might well ask what changed after that, and the answer seems to be that there was something of a power struggle about the best solution for educational outcomes – you can read more about that here.
• Thirdly, the facilities manager – who, let’s note, was producing a risk assessment in the particular context of the proposed funding bid noted above, and who was not an independent expert – states that there are insufficient dog waste bins on site. The number of dog waste bins has increased since then, paid for by funding voted for by local residents via the Neighbourhood Partnership. The other dog-related risk he identified was ‘dog attack’ – this is the only risk he rated as ‘high’, despite the total absence of any dog attack incidents. BCC’s health and safety officer subsequently reviewed the risk assessment and commented:
  • ‘do we have any evidence of attack’? ‘Interaction does not mean attack. My general understanding of dogs and balls is their desire to join in the play/activity as opposed to attacking staff/students. Plus I would suggest that there are already ‘Existing Controls’ being the staff on duty, supervising the students. They can politely request that dog owners remove their dogs… The majority of law-abiding citizens of Bristol would respond to such a sensible request.’

So what we have is:

• an overstated risk assessment
• written to support a bid for significant grant funding
• which the school itself did not really believe at the time, but
• on which it has placed massive (and undue) weight in subsequent years.

Obviously, it was a useful PR tactic for Cotham to talk up the issue of dog mess. No one likes to see it, and it remains really important that dog owners pick up after their dogs. We’re grateful that members of our community take particular care to ensure that our village green is clear of both litter and dog mess – that’s part of our community commitment to looking after Stoke Lodge. But issues about dog mess are also completely irrelevant to village green status and are managed with relative ease by other schools (BCC’s health and safety officer said ‘Other schools address the risk of dog mess by a visual sweep of the playing fields prior to use’ and this is also a requirement for staff under Cotham’s own health and safety policy).

But despite the fact that the hard evidence tells a different story (and you can read more about that in previous blog posts here and here), it seems that over the years Cotham has locked itself into believing its own mythology – and has spent (and continues to spend) tens of thousands of pounds in pursuit of having a fence, when in fact building good relations with the community, and some appropriate signage (e.g. about the locations of the bins) is all that is required.

It’s time for Cotham governors to step back and take a fresh look – they might rediscover, after a decade of misunderstanding, that they are able to provide PE lessons on a village green and that working with the community (rather than fighting it) is a good thing.