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Thursday, December 6, 2018

Day 15 - live tweets

Day 15 of the Post Office trial - 229 live tweets compiled below for your easy reading pleasure. You can also read them here on thread reader or read the originals here on twitter:



All these tweets are notes and paraphrases. No direct quotes unless they are in direct quotes.

for background on this trial please go to postofficetrial.com
We are in Court 26 of the High Court Rolls Building. Mr David Cavender, QC for the Post Office. 

He is on day 2 of his closing argument. 

We are talking about explicit, agreed and implied terms.

With reference to the Authorities.

Mr Cavender [DC] brings up how helpful or unhelpful the Post Office has been during this litigation. 
He points out just how much information has been handed over.

J intervenes to say it would be surprising if he were to be drawn by DC to solicitors correspondence...
DC says My Learned Friend (Claimants’ QC Mr Patrick Green) [MLF] has been critical and suggested they might be playing games - he wishes to counteract that suggestion. If the Claimants wanted more granular detail from the Post Office, they could have appealed it and they didn’t.

We are going to Yam Seng again, which Patrick Green spent hours on on Monday. I am guessing DC is going to tell the judge it means something completely different to Mr Green’s dissection.
DC says Yam Seng contract was a short contract prepared without the “benefit” of lawyers. It was only designed to last 2 years. Here is the ruling btw: bailii.org/ew/cases/EWHC/…

DC in any contract there is trust and good faith (corrects himself to say mutual trust and “faith”)
DC quotes 151 of Yam Seng: "in so far as English law may be less willing than some other legal systems to interpret the duty of good faith as requiring openness of the kind described by Bingham LJ in the Interfoto case as "playing fair’”...

…. "coming clean" or "putting one's cards face upwards on the table", this should be seen as a difference of opinion, which may reflect different cultural norms, about what constitutes good faith and fair dealing...

in some contractual contexts rather than a refusal to recognise that good faith and fair dealing are required."
Oh sorry it was 131: "Under English law a duty of good faith is implied by law as an incident of certain categories of contract, for...

… example contracts of employment and contracts between partners or others whose relationship is characterised as a fiduciary one. I doubt that English law has reached the stage, however, where it is ready to recognise a requirement….

of good faith as a duty implied by law, even as a default rule, into all commercial contracts. Nevertheless, there seems to me to be no difficulty, following the established methodology of...
...English law for the implication of terms in fact, in implying such a duty in any ordinary commercial contract based on the presumed intention of the parties."

DC is now highlighted 141 of Yam Seng: "What good faith requires is sensitive to context. That includes the core value of honesty. In any situation it is dishonest to deceive another person by making a statement of ...

fact intending that other person to rely on it while knowing the statement to be untrue. Frequently, however, the requirements of honesty go further. For example, if A gives information to B knowing that B is likely to rely on the information and ...

… A believes the information to be true at the time it is given but afterwards discovers that the information was, or has since become, false, it may be dishonest for A to keep silent and not to disclose the true position to B. ...

….Another example of conduct falling short of a lie which may, depending on the context, be dishonest is deliberately avoiding giving an answer, or giving an answer which is evasive, in response to a request for information."

J flags up 144 which DC seemed keen to gloss over: "Although its requirements are sensitive to context, the test of good faith is objective in the sense that it depends not on either party's perception of whether particular ...

….conduct is improper but on whether in the particular context the conduct would be regarded as commercially unacceptable by reasonable and honest people."
DC would rather the J would look at 149:” a further consequence of the fact that the duty is based on the parties' presumed intention is that it is open to the parties to modify the scope of the duty by the express terms of their contract and, in …"

“… principle at least, to exclude it altogether. I say "in principle at least" because in practice it is hardly conceivable that contracting parties would attempt expressly to exclude the core requirement to act honestly."
DC the proper approach should be whether you are dealing with a relational contract in principle, implied terms and then whether the Marks and Spencer test applied. [The M&S test is case law, not anything to do with underwear etc.]

Here is the M&S test: allenovery.com/publications/e…
DC making the point that the implied terms which the JFSA want to insert into the SPM contract are too wide and onerous and that is specifically prohibited in case law.
Judge and DC about the necessity for honesty within implied terms in Yam Seng (153 - 164 in disputed as to whether they are one set of implied terms or two)

DC says people rely on Yam Seng more than the ratio of the case and the language of the decisions permits. [JFSA very reliant on Yam Seng]

We are on to another judgment which DC went to by a reference number in a bundle without saying its name so I don’t know what DC is reading from.
Ah. It’s the marvellously-named: Sheikh Tahnoon Bin Saeed Bin Shakhboot Al Nehayan v Kent:

smab.co.uk/wp-content/upl…

The above action was on no contract at all and Yam Seng was on a “home made” contract. “A million miles” away from this case.
DC saying that therefore the JFSA’s attempts to rely on it are weak.
We are in Monday morning territory here when we listened to some very dense legal argument. Important no doubt, but interminable to the lay person. and ultimately not worth tweeting about. I’m going to upload all the transcripts for the legal nerds to get excited about...

… but these are the opposite of dramatic developments.
DC has shifted position from his opening. At the beginning of the trial, he was contesting the existence of relational contracts as a thing. Now he accepts they are, but submits their terms are narrow and weak.

As in - what constitutes a relational contract is pretty vague and the duties/powers in confers are weaker than others would have you believe.
DC remarks we should move on.
J suggests it might wake everyone up.
The next Authority is is Geys, which DC says should be pronounced “Geeze”.

J asks if this is DC's way of reminding him that he was involved in the case
"was I?” says DC, drily.
Judge says he’s been keeping count of the number of times the QC have told him they have been...

… involved in authoritative cases, but gave up when they both went into double figures.
In the time it took for me to tell you that we’ve moved onto another Authority. This one involving mid-Sussex hospital.
J what does intrinsic mean? Fact or law?
DC not sure how it is being used here.
J me neither

They decide “instrinsic” is an unhelpful word.

DC cites 3 authorities who are disapproving of or not approving of implying good faith into species of contract as a category. DC says proper approach is to look through M&S, which post-dates Yam Seng and is the Supreme Court authority.
Just because implied terms..

… are coming in through the relational contracts route, it doesn’t mean they have any more authority.

DC very keen to say the SPMC is NOT a good faith contract.
DC says JFSA is trying to reorder the SPMC by entering a whole array of implied terms which - and notes there are judgements which have stopped this sort of attempt from being successful in the past.
DC "in this case we have a biz to biz relationship and to say it’s more like something else isn’t really the point. To say there are certain elements which have an employment feel to them doesn’t really stand up.” It’s only employment contracts which have implied terms of good...

… faith. Not ones *like* it.
DC hammering home that SPMC is a commercial relationship from which both sides seek to profit.

And there are authorities which make it quite clear that there is no good faith, it is down to the letter of the contract.
J asks what commercial intersts SPMs have
DC footfall in their branch and the growing of their business.
J okay
DC A relational contract is only one where you are tied in. So the courts may come to your aid by implying terms. If you are tied in and other parties use it cynically to make things uncommercial, then the courts can help...

J you’re saying the reason for it is a contract of a particular duration where a party does not have the possibility to extract themselves.
DC and because after a while - things change, but the contract stays the same
J relational contracts are obviously a developing field. as part of reading for this trial [goes to another authority] on p92 it mentions an Australian article, but read it and tell me whether you think I should read it, avoid reading it or read parts of it. It is mentioned...

… in a courts of appeal authority.
QCs no objection
J okay both of you put in a note to me within 14 days. 2 sides of A4 max.

Court rises. That was hard work.
Okay we are back. We are back on Yam Seng. After this DC has promised to demolish the implied terms the JFSA have set up.
The Authorities have been put away.

DC says the 21 implied terms in the claimants written opening do not pass the M&S test and do not work as implied terms anyway, and JFSA has not shown how anything in them has been used in the past in other context.
They are just printed out and it is not shown how or why they could or should pass the necessity test to put them in the contract.
DC points his lordship to the work the post office has done on explaining why none of the JFSA’s implied terms should be applied.

DC says there are specific implied terms wrt suspension and termination which he will get to shortly
Now DC is on to agency and accounting. We say the issues between the two parties are primarily issues of law. We go to 12 and 13 Common Issues.
Common Issue 12: "Was the extent and effect of the agency of Subpostmasters to Post Office such that the principles of agency alleged at Defence 91 and 93(2) and (3) applied as Post Office contends?"

Common Issues 13: "13. Did Subpostmasters bear the burden of proving that any Branch Trading Statement account they signed and/or returned to Post Office was incorrect?"
The judge has to decide on the Common Issues. There are 23 of them.

DC we say SPMs are agents, there are certain rules which apply and we would of course say they apply here.
DC - There is nothing in the JFSA’s case that suggests that normal accounting responsibilities are different in this case.
J- this might be a minor point. Branch trading statements are identified in terms in Common Issues and referred to in your pleadings. I don’t think I’ve seen one yet. Could I have one per lead claimant?
DC you have Dar and Stockdale (he is giving him the references)
DC and Stubbs...

J these aren’t signed, though, are they?
J in later periods were they just returned rather than signed and returned…?
DC locates a signed branch trading statement from Dar
DC has asked for no findings about false accounting in this trial, but his closing sets out what they think about false accounting and what they may rely on in later trials.

DC 12 and 13 is not about facts its about law.
We have moved on to accounting. and the question is do the normal principles of accounting apply to SPMs and the JFSA has made no case worthy of its name to say there isn’t.

DC we say the SPM is not signing off accounts s/he is disputing (contemporaneously). And therefore not bound by that which is in dispute.
DC the JFSA says this isn’t agency, it’s “hollowed out” agency. This doesn’t exist as a term in law. It’s quite extreme to say it’s hollowed out but also you have to account for fiduciary duties wrt to cash and stock.
J says disputing of a TC occured before the end of a branch trading period in a notional example.
DC that can be done.
J I’m not exploring a scenario where an SPM settles to cash in one trading period and then tries to dispute it in the next trading period.

J I want to know what happens in the same branch trading period
DC you can hold a TC to the end of of a branch trading perdod, but then you’ve got to do something about it because you can’t roll over with an outstanding TC
DC they can all be dsiputed

J well some of the evidence heard at court is that by settling and raising a dispute initiates debt recovery
DC well that would be breach of contract
DC when you get a TC they’re either disputed or they’re not - they’re still outside
J when you say outside do you mean outside the accounts? Because they’re still part of them
DC yes but when you rollover, when you dispute or pay them they’re set to one side.
J wants a flow chart from both sides agreed on what the steps are when producing a branch trading statement. Not just a rehash of an already published document. One for TCs and one for shortfalls.
Oh we are back to Common Issues 12 and 13.

DC an SPM can say parts of their accounts are mistaken, but they have to particularise. They can’t just say oh all my accounts are wrong.
DC has just raised the Castleton judgement. Notes the judge found against him, satisfied that "I am satisfied that the substantial unexplained deficiencies incurred in weeks 42 to 51 and in week 52 up to the close of business on...

…. 22nd March 2004 are real deficiencies and as such are irrefutable evidence that Marine Drive was not properly managed at the material time. I conclude that the claimant was entitled under clause 10 of section 1 to determine...

… Mr. Castleton's contract summarily for non-performance of his obligation under clause 5 of that section. Moreover, the losses must have been caused by his own error or that of his assistants."
DC it is admitted that SPMs are agents - what is in dispute is the legal consequences of that.
Says that JFSA reliance on Garnett Grain is misplaced as this is to do with whether someone was an agent or not.

This is about an oral or implicit indication of whether someone was an undisclosed principle. But here [ie in this case] we have an express written contract. Very different.
DC re contract - are the terms so onerous as to be unenforceable and to what extent does the PO have to draw them to the SPM. Our contention is they are not and we don’t.

The legal bar of onerous is “almost a penalty” and there is nothing in the contract which states as much.
SPM contract is standard commercial terms in a business to business relationship - contracts were given in advance, certainly summary of standard terms were. This is a case where it is a commercial agreement and parties were making a serious choice and they knew they were.
J that doesn’t get round onerous

DC but the bar is almost a penalty
J but your argument they knew what they were getting into so no terms need to be drawn to them fails
DC my lord I accept that.
DC saying legal effect of signing summary of standard terms is that they are bound by the SPMC. Even if you don’t get the SPMC you can ask for it, you know what’s likely to be in it and there weren’t any surprises when they did see it.

DC part of my learned friend’s case was that these claimants had just walked in off the street and decided to become an SPM. In fact they made serious decision to change their careers, did their research and were serious people. The idea they were mugged by the terms of...
… the contract just does not bear scrutiny.

We have risen for lunch. Back at 2pm. #postofficetrial

Last three hours of #postofficetrial (Common Issues) about to start. I just had the world’s most disgusting mince pie for lunch. I had to take it back. The pastry wasn’t cooked. I won’t miss this place.
First one of the season too. Portent for a miserable christmas, probably.

Ah. Judge [J] is here. Mr David Cavender QC [DC] for the Post Office is on his feet. I think he is going to go through the Lead Claimants now...
Starting with Mr Bates.
DC goes through what Bates signed - says whether or not he got the contract through the post doesn’t matter. He could have asked for it and he signed up to it.
DC - Bates signed a note saying he agrees to be bound

J not sure that adds much other than evidential support
DC agreed but it reflects his knowledge that he has a contract.
J as I understand the PO practice was that copy of the SPMC would be kept in the branch and the incoming SPMR could/should/would familiarise themselves with it as part of their due diligence AND at some stage they would get it through the post after being approved...

… as an SPMR
DC accepts
J but you had the opportunity before even becoming an SPMR to see the incumbent’s contract
DC goes into Bates’ evidence. wants to test it again.
DC he is a details man, he notices when things are missing. He claims he didn’t notice that his SPMC wasn’t there. You should not accept that evidence.
J that is ignoring the evidence of other documents were in that pack
DC that evidence is incredible. The two page document...

… he claims he thought was his contract “conditions of appointment” - which was put in in error. Don’t know how that happened…

J don’t know how it happened?
DC well…
J it must have come from the PO…
DC yes of course.
[DC has just said the evidence is he definitely got his contract and we heard from a witness that his department definitely did send them out then admits that Mr Bates receives a document in error from the Post Office. So they do make mistakes, but his argument is that….

… whilst they do make mistakes, he wouldn’t have made this one. Judge didn’t pick him up on that - just think it’s an odd tack]

DC says his case is that he got his contract here and yet Mr Bates case is that he didn’t. I say his evidence on this is incredible.
DC points to a letter where Mr Bates talks about the contract being huge and voluminous. He must have had that contract….

[he’s making a very convincing case here - the letter that Mr Bates wrote was before he claims to have got the contract, yet he refers in detail to elements of the “contract” which DC says must be the SPMC]

J says that doesn’t mean he had it in March the year before
DC no - we say he is constructing a case
J well then this goes back to the credibility of the witness which you are saying you don’t want me to make findings on
DC yes but this not about false accounting - it’s a straightforward point

J so are you saying it’s just one way - you only want me to make findings on the credibility of the JFSA witnesses not the PO ones?
DC no quite the opposite
J rather than hold you to oral submissions on what might prove to be a careful distinction...

… I would like you to write to me to tell me in as careful terms as possible how you would like me to treat the credibility of these witnesses. Because it is very unusual to be asking a judge not to make findings on evidence in this trial.
DC it is, and it is down partly to the way this trial has been conducted, without wishing to rub salt into any existing wounds…

J wants DC to put it in writing exactly how you want me to treat the evidence.
DC Mr Bates is a very nice man I am sure, but he has constructed a narrative whereby he has come to believe what he says is true - a) that a two page documents was his SPMC and b) that he didn’t have his SPMC when he plainly must have had sight of it.
DC if we just turn to Yam Seng
J I don’t need to go to Yam Seng to be reminded that memory can be subjective
DC and faulty

DC Mrs Stubbs - a particular odd and sad situation which doesn’t have any parallels. There is very little dispute on the facts of this. Just when the contract date began.
DC Mr Sabir he has the same routine as Mr Bates in terms of contractual position...

… he was sent a summary of terms that would apply and then signed, then sent SPMC. We have his signature on that….

His evidence was that he didn’t get his contract for either of his two branches. PO witness say he was advised to get legal advice. We say his evidence that he didn’t get his contract is not reliable.
DC says that Mr Sabir's understanding of oral English was selective.
J maybe it was the change in language you were using
DC possibly

J are you inviting me to impugn him or is that an observation on that basis?
DC the former
DC onto Mr Abdulla. Saying during oral evidence he was clearly deciding not to remember things that weren’t in his interest. He said that two different people were the same people. He says he thought he was doing the right thing by putting in an undated cheque...
[some discussion about whether this should be admissable]

DC concludes Mr Abdulla’s evidence on the contract (that he didn’t get it) was untrue.
DC onto Mrs Stockdale and Mrs Dar who were on NTC. They must certainly have got their contracts.
J well this is perhaps a reflection of an internal change of policy within the PO given there are internal documents which suggest some SPMs were not aware of their contract.
DC yes but the NTC was a complete blank piece of paper - so everything was changed.

DC now talking about all LC. These people were not naive, they were buying a business. they had access to legal advice if they wanted it, they had not just walked in off the street. They knew what they were doing.
DC now moves on to suspensions. Common Issue 14: "14. On a proper construction of the SPMC and NTC, in what circumstances and/or on what basis was Post Office entitled to suspend pursuant to SPMC Section 19, clause 4 and Part 2, paragraph 15.1 NTC?"

… not to suspend Claimants: a. arbitrarily, irrationally or capriciously; b. without reasonable and proper cause; and/or c. in circumstances where the Defendant was itself in material breach of duty"
DC is now looking at PO closing submission: In addition to the implied term alleged at para 64.13, the lead Cs now contend in their IPOCs226 that, on their proper constructions, the express contractual terms dealing with suspension were limited in the following ways...

... (1) Post Office could not suspend on a “knee jerk” basis and (2) Post Office could not suspend without first giving “fair consideration to all relevant circumstances and to whether or not to suspend the Claimant even if the threshold for doing so was established”.

DC we say that the terms of the contract rule.

Unsurprisingly.

DC in para 429 we indicate it might at most be implied if your lordship thought it might be appropriate…

J it’s difficult to see how PO would argue the right to suspend “irrationally”
DC yes at most the decision to suspend should be reasonably based on the contract grounds
DC starting point on matter of suspension is not one of construction. They start as if there are no words.
DC let’s say you're on an audit. £8K is missing. You have to have the right to suspend. You can’t have an implied term to prevent you from doing so. You need to protect against theft or further incompetence

J what is meant by the “interests of PO” - commercial, public, all interests
DC legitimate interests as a business
J writes that down
PO coming out extremely strongly on JFSA’s arguments that there are implied terms in the SPMC on suspension. Some examples follow:
"there are no contractual words referring to Post Office’s own conduct, let alone to any “material breach” on its part. As a matter of ...

… the commercial sense of the agreement, it is difficult to see why Post Office should lose the power to suspend merely because it is itself in breach of contract, given that such breach could be entirely irrelevant to the circumstances of the intended suspension."
Cs observe that, in employment contracts, an employer’s right to suspend his employee should not be exercised on unreasonable grounds...

They then argue that the same should apply here. That is wrong for at least three reasons.
First, Cs cannot just extrapolate at will from employment law to these contracts. These are business-to-business relationships. The businesses with which Post Office contracts are sometimes individuals, and those individuals are sometimes small-...

…. businesspeople running single branches. On the other hand, thousands of branches are run by large corporates or individuals who run multiple branches: {Day7/156} to p.157. These contractual relationships simply cannot be reclassified as quasi-employment relationships."

" Second, even in employment contracts it is necessary to construe the relevant term on suspension, to consider whether any restriction on its exercise should be implied (and if so, what)."
Third, Cs observe, correctly, that in the employment context, restrictions on the right to suspend can be linked back to the application of an implied term of trust and confidence:...

In another case cited by Cs, Gogay v Hertfordshire County Council,231 Hale LJ said that the question was whether the decision to suspend met the “severe” test set by that implied term, which required “conduct...such as to destroy or seriously damage the relationship”.
It is also worth re-emphasising that Cs’ case is not merely that the power to suspend must be exercised reasonably. They in fact argue for the implication of a multi-headed term which includes both unwarranted specific provisos...

… (for example, the stipulation that Post Office cannot itself be in material breach of any duty as at the time the suspension decision is taken) and...

… (similarly unwarranted) requirements of extraordinary breadth, such as that Post Office must give “fair consideration to all relevant circumstances and to whether or not to suspend...
... the Claimant even if the threshold for doing so was established” (in which neither...

… “fair consideration” nor “relevant circumstances” is given any further definition). There is no shred of support for a term of this kind, either in the words of the relevant clauses, or in any authority."
And on termination: "Furthermore, at least in the absence of any clear criteria against which to measure the appropriateness of any proposed notice period on the facts of any given case, a…

… requirement to give “conscientious” consideration would be both vague and potentially onerous to Post Office and would give relatively little comfort to any prospective SPM, whilst undermining legal certainty on both sides."
and "The curiously specific stipulation that termination should not follow “reasonable correspondence” (again, whatever that might mean) is even odder. ...

… There is no limitation on the circumstances which could lead Post Office (or, indeed, the SPM) to decide to terminate on notice. The idea that a stipulation of this kind is so obvious that it would have gone without saying can plainly not be sustained."

[the PO is sticking to its guns. the obvious conclusion from all this is that any potential SPM would have to be insane to go anywhere near one. I do worry the effect this trial might have on the value of existing, functioning branches. why would anyone take one on?]

[that’s immaterial to the vast majority of the claimants, of course]

[this point did come out in evidence from both sides over the course of the trial. Mr Abdulla (claimant) said if he had seen the contract he would be mad to sign it and Elaine Ridge [PO] said if she’d shown it to him he would have run a mile]

[I don’t know whether its a specific part of the claimants case that they had no idea how heavy the SPM contract is/was, but the evidence is pretty clear that most of the SPMs never found out and were never told about the level of risk they were taking on]

[whose fault that is is moot]

Sorry I’m musing aloud because the judge has risen. He’s back now...

Mr David Cavender QC for the PO is on his feet [DC] again. We are looking again at the authorities. This time it’s Autoclenz. 
DC if they lose on construction and implied terms, Autoclenz is their fallback...

JFSA arguing contract as agreed was not the actual contract in fact. 
DC says this is unorthodox, to say the least.
DC draws our attention to 32: "Aikens LJ stressed at paras 90 to 92 the importance of identifying what were the actual legal obligations of the parties. He expressly agreed with Smith LJ's analysis of the legal position in Szilagyi and in paras 47 to 53 in this case….

… In addition, he correctly warned against focusing on the "true intentions" or "true expectations" of the parties because of the risk of concentrating too much on what were the private intentions of the parties. He added:
“What...

… the parties privately intended or expected (either before or after the contract was agreed) may be evidence of what, objectively discerned, was actually agreed between the parties: see Lord Hoffmann's speech in the Chartbrook case at [64] to [65]. ..

… But ultimately what matters is only what was agreed, either as set out in the writ
ten terms or, if it is alleged those terms are not accurate, what is proved to be their actual agreement at the time the contract was concluded. I accept, ...

… of course, that the agreement may not be express; it may be implied. But the court or tribunal's task is still to ascertain what was agreed."
I agree."
DC saying that the PO termination clause of 3 or 6 months is not a sham as referred to in Autoclenz. The JFSA just don’t like it.

DC now onto unfair contract terms. From the PO’s closing: "Cs contend that all the terms identified in Common Issue 5 are unenforceable except in so far as they satisfy the requirement of reasonableness pursuant to ss. 3(2) and 17 UCTA. ...

… They further contend that these terms do not satisfy that requirement. Both contentions are utterly without any basis in reasonable argument."
DC is listing the authorities which he says supports the PO’s view.

In the closing: "Post Office’s business is the provision of services to customers, not the engagement of SPMs. The SPM, as agent to Post Office, is conducting transactions on its ...

… behalf and so enabling Post Office to conduct its business with customers. The contract with the SPM facilitates Post Office’s conduct of its business, rather than itself representing the conduct of that business."

"In Opening, Cs did not engage with these authorities at all. Instead, they assert that Post office’s position is “somewhat ambitious” and then that it is “obviously wrong” ...

… Despite the escalating rhetoric, they do not explain why they say Post Office’s position is wrong. The closest they come is to say that the “appointment of Subpostmasters is an integral part of the Defendant’s business”"

"But, whether or not it is integral, the appointment of Subpostmasters is no more Post Office’s business than retaining bankers is a bank’s business."
"Post Office’s business is the sale of its products and services. As Ms Van Den Bogerd puts it, Post Office “acts as a ‘shop front’ for the general public to access a range of products and services...

… from government benefit payments to postal and banking
No entitlement to render a substantially different contractual performance
INCORPORATION AND VALIDITY
services."

oops - ignore INCORPORATION AND VALIDITY - that was a copy and paste over the page heading… sorry

"Post Office offers these services through both Crown Office branches, which are run by Post Office employees, and Agency branches, run by SPMs."

"There is no distinction that can be drawn in Cs’ favour between Post Office and the banks in the authorities – and they have not even tried to draw one."

"But Cs’ evidence, taken at its highest, comes nowhere near saying that. Cs’ assertions about pre-contractual discussions are that ...

… the ‘mood music’ was comforting, that Post Office hoped each relationship with a SPM would be cooperative and mutually profitable. As became clear, this was what the Lead Cs meant when they referred to an expectation of partnership"

"Those are not, on any view, pre-contractual representations specifically contradicting any of the contractual terms Cs are complaining about. What Cs are really saying is that there is a mismatch ...

between what they hoped and thought the contract would say, and what it actually says. But that is not a legitimate argument."

We’re getting near the end of Mr Cavender’s argument so I’ll just take you to the summaries on the contract at the end of the written closing: "Post Office is much the larger business, but the SPMs were not consumers, or small suppliers, pressurised into contracting on ...

… draconian terms. They were independent business owners. They could have simply provided their customers with an independent retail offering. Instead, they made the free decision to add a Post Office branch to whatever other retail business they wanted to run. ...

… Their bargaining power might have been significant, if Post Office wanted, or was legally required, to operate a branch in a given locality and there was a shortage of capable applicants for the SPM position. Conversely, their bargaining power might have been weak,...

… if Post Office was ambivalent about locating a branch in a given area and/or if there were many suitable applicants for the position. Either way, while the fact that the terms were (colloquially speaking)...

… largely in standard form was a function of Post Office’s greater size and commercial heft, the decision as to whether to accept the content of the contracts was made by the SPMs as independent-minded, informed businesspeople, with complete freedom of choice."

Mr Cavender is essentially reading these paragraphs out in court anyway.
Final point: "More broadly, and in anticipation of the kind of arguments that might be made on this point by Cs, it is worth re-emphasising that “the court assesses the issue of reasonableness at the time when the contract is made...

… , and not by reference to what has happened during the course of the contract with the benefit of hindsight”: (Shared Network Services Ltd v Nextira One UK Ltd,416 per Flaux J, at para 19).”

And there you have it.
DC has finished.
J has questions. Or does he?
J does. Mr Green (JFSA QC) as far as notice was concerned that an outoging SPM could be forced to stay in post longer than they wanted until the PO was ready to effect the transfer

DC no it doesn’t - he stayed out of his own commercial interest to do so.
DC thre’s no suggestion there’s some variation of contract or to his contractual rights. Didn’t have to.
J but notwithstanding unhappiness about it would be cooperative about the transfer date.

J it seems to me on the evidence that the amount that was presented on branch transfer day could not possibly be read in one day. Am I being unfair if I come to that conclusion. I appreciate you are saying it doesn’t matter
DC well that and you can take a view on how...

… they are presented how important they are. They are reference documents when you need to check on detail. They’re very much down the road in terms of contractual relevance.
DC not sure contractually my Lord you get very much from them. The allegations here very much aren’t breach.

J no but it still comes down to the mechanism of contractual formation
DC yes in many contracts you have lots of documentation
but in the contract we are only talking about a few terms. 12.12 4.1. and termination - the fact there might be extra documentation…

J yes but the evidence is they were made to sign lots of documents in a rush which they couldn’t possibly read
DC at the end of the day I’m not quite sure where this takes you because if I’m right we are only disputing the terms and conditions as signed. This is not a public inquiry into the SPMC and all its details...

… and this is all post-contract on the claimants case anyway. Not sure what contractual relevance it has.
J well it’s part of joining the PO for an SPM and the PO has an involvement on that day so it would be odd to ignore it.
J wants date of each contract formed of each lead claimant by Monday 4.30pm - one page.
JFSA QC on his feet to answer DC
JFSA QC Patrick Green [PG] working backwards.

PG says actually the docs they signed on handover day massively important - neither of the docs received before transfer day HOW SPMs were expected to account.
PG says you only learn the reality of your obligation once you are already committed to becoming an SPM.
PG now onto NTC - and how it refers to a wider manual…

PG now onto outgoing SPMs and whether they were forced to stay on. Mr Sabir says he was “told he had to stay in post"
PG point of correction in Autoclenz - they weren’t employees, they were LImBY (?) workers
PG Lord Clark expressly rejected sham doctrine as being the right approach.
PG MLF conflates operating network with serving customers and operating a branch. They do both. And wrt to UCTA - there was a contractual obligation on Mr Bates re lottery terminal...

… which was taken away from him.

PG hands up a list of other points from earlier and the “three pieces of homework we were set” which they have done on time.
PG explaining “hollowed out” agency point as "MLF found it hard to understand"
J reminding QCs for dates to be agree

J notes for the benefit of the court "the resolution of this case is not going to depend on who has the last word.”
DC says “despite that, my Lord, may I…?” and makes an administrative point.
DC he is marking the previously referred to homework as bad, but...

J says this is what I asked him for. But he will read all the points DC wants him to read.
DC says the locked audio interview of Liz Stockdale cannot be unlocked despite judge’s order. J wants a...

… witness statement as to why it cannot be unlocked on his desk by Monday 4.30pm. This was quite an important piece of evidence.
J has just asked for all 23 Common Issues with a short answer to each of them as to how each side WANTS him to rule on them.
All this admin means we will go up to Christmas so there will be no ruling before then.

J will reserve judgement he will produce it as quickly as he can but it is a lengthy job. He will try to do it some time in January.
J also sets date for CMC...
on trial 3 at 31 Jan 2019.

Also wants them to think about appointing a single joint expert on matters of quantam. Wants them to address their minds to who that is going to be. "I had thought it might be a forensic accountant"
Some confusion as to date of 3rd trial. Judge thinks he has ordered it, but no one else thinks he has. He’s pretty sure he has, but no one knows the date. This is being checked.
DC so what is this trial going to be about

J the resolving of ALL outstanding issues with the LCs - how many of the LCs you will have to decide.
DC raises issues of limitation
DC there are no pleadings worthy of the name which we could take to trial. could the claimants actually raise what their case is…? affects disclosure etc
J the steps for R3 are what? And I am not going to tolerate a war of attrition bogging everyone down with roudns and rounds of pleadings

J there will be pleadings, appointment and report of joint expert, evidence of fact - those are the three headline points
DC yes but Horizon trial to cater for that complicates things...
DC also raises issue of disclosure.
DC confirms Horizon experts reports (first round) are in.
J insofar as there were such a gap that could be addressed by the experts engaged on Horizon - a supplementary report

J looking at the outline of that it’s not impossible to achieve
DC it’s tight but its’ doable - not so sure for six
J thats’ what you have to decide
DC well it may be for the court
J ultimately yes, if you can’t agree
DC yes but we can’t just pick and choose our favourite cases
DC it should be for the court to decide after we make our case

J Mr C the agreement of the Common Issues, a process started by me - there was a lot of push back from the PO. The PO didn’t want a trial at all this year.
DC it is a complex case, we don’t agree on everything and I have been involved in a huge amount of litigation and this is no different
J okay in Jan this is going to be how many, ideally all 6 and if you can’t agree it is going be decided by me

Judge has just announced a 4th trial if the parties can’t agree to do all six and he says it will be a rolling programme of trials until it is done.
DC says next trial will be 2 or 3
J 2 - 4 then

JFSA QC we think for it to be most useful in resolving the grid as a whole is 6
JFSA QC but I don’t think we can do 6
J well choose a number smaller then. I don’t want to be abrupt or steamroller you, but I have to get through this litigation. So you are saying 3 to 6. DC is saying 2-4
J There’s an overlap there.

J my regret is that the CMC is not
… going to be before 31 Jan.
I’ve carved out a date for the starting on this on 14 Jan…. which creates a window.

[looks like judgment will appear in latter half of January. he may get it out earlier to the parties so they can prepare for the CMC

.. but it will be under embargo.]
So at a guess? Burns Night.

Judge wishes everyone a happy Christmas and rises. 

#postofficetrial round 1 is finished.

Okay just had a few chats to try to make sense of how a judge can apologise for "steamrollering" into making things happen whilst in the same breath threatening to hold a trial every judicial term until the issues are resolved.
It seemed to me to be an admission of the limitations of the judicial process. Both sets of lawyers have an interest in this going on forever. And if neither side gives in it will go until the money runs out or the judge directs towards a resolution.

Which he can only do if every issue (and potentially every single unique variant in each claimant's case) has been tried.

So this shitshow will continue until there is political intervention. But government doesn't want to touch it. so they won't until they are persuaded by public opinion.

Anyway sorry, what i meant to say was after speaking to people who know more about this than I don burns night is a pretty good guess. 

I'll make sure I'm around to go to the case management hearing on 31 Jan
I'll get these tweets unrolled and on www.postofficetrial.comand a write up soonest. Thanks for reading. It's been a "fun" five weeks.

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