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Monday, December 3, 2018

Day 12 write-up: Don't tell him, Pike!

Day 12 was the first day of the closing submissions by the claimants and it was entirely taken up with reference to what the claimants QC Patrick Green referred to as "Authorities" - the case law which ultimately determines what room for manoeuvre the judge has when it comes to make his "findings" come January.

This is written with no disrespect to anyone who was working in court today, but boy I felt sorry for the claimants who had flown over from Northern Ireland to attend proceedings. It was necessary, I'm sure, but hellishly dry.

I have written a ten minute sample exchange at the bottom of this email so you can get the gist. If you are a fan of law, you might want to read it avidly. If you are a fan of the plays of Samuel Beckett, it might look familiar...

I must admit I found the written closing submission of Mr Green more compelling. As you might expect he lays about the Post Office's approach to the trial in general terms....

"Generic evidence was given at a very high level of abstraction and scarcely any of the relevant policy or operational documents were identified, still less exhibited. This left the Claimants to try to find relevant source documents in the largely unstructured disclosure given by the Defendant.... Mrs Angela Van Den Bogerd mentioning the Branch Support Programme in one line in her witness statement, without condescending to even the most general level of detail as to its purpose, content and (obvious) relevance... Some witnesses had simply not even seen the primary documents about which they were purporting to give ‘would have’ evidence... Others had seen key documents but simply not referred to them... Witnesses were surprisingly unfamiliar with documents that their statements suggested they knew or would be likely to understand.... Some witnesses could not explain why certain matters had even been included in their witness statement..."

He also notes the Post Office witnesses' bizarre disassocation from their own witness statements...
"No conscientious consideration had been given to correcting witness statements, even when the witness had pointed out the error a week earlier... Mr Shields unexpectedly corrected his witness statement orally... Mr Haworth did not correct the location of the interview, despite having realised it was wrong before he gave evidence.... Mr Trotter completely reversed his evidence, without warning..."
And Mr Green seems to have found nearly all of the Post Office witnesses unimpressive:
"Mr Dance['s]... oral evidence was also confused and contradictory...  Mr Haworth, who, despite him having been trained himself on Horizon and having been engaged in the roll out programme of Horizon, was not familiar with the layout of the Horizon screen or what buttons a SPM had to press... Mrs Dickinson – despite the scope of her role and involvement in criminal cases - was unaware of the fact there was no dispute button... Mr Webb was completely unaware that this was Post Office’s practice, and was clear that he would not have been able to explain these variations if asked... Ms Dickinson is the Defendant’s key witness on supposed fraud and dishonesty in branches. She accepted in oral evidence, however, that she was unfamiliar with several fundamental and basic matters revolving around the realities of working in a branch and the manner in which accounts are submitted.Mr Dance had chosen to give no meaningful evidence about the financial assessment of business plans ...  and the documents he exhibited were all but meaningless. Evidence he gave in his statement about Post Office practices was also flatly contradicted by Post Office’s other documents and witnesses."
... but it was Angela van den Bogerd, the only Post Office director to give evidence, who Mr Green appears to single out:
"Mrs Van Den Bogerd was unaware that any Horizon Management Council had been created... Mrs Van Den Bogerd could not recall ever having seen a risk register for Horizon.... Mrs Van Den Bogerd’s evidence was that she was not aware that [a Horizon audit program] was done..."
Mr Green notes the Post Office's strange lack of interest in helping Subpostmasters in trouble:


"There was certainly no facility for SPMs [Subpostmasters] to print a spreadsheet ... which – when disclosed for this litigation – enabled Mr Abdulla to find significant issues with the TCs he had been issued in the period prior to his termination. Post Office could give no explanation as to why such a spreadsheet was not available to SPMs as a matter of course, Mrs Van Den Bogerd:
page35image20457216
PG QC: ...why can't you send an Excel spreadsheet so people get a chance to look at the piece as a whole and put it in context? So they have a better chance of finding out if something is going wrong, haven't they?AvdB: We have not considered that before."
And this lengthy section comprehensively shows how Mrs van den Bogerd's written statement with regard to training was proven, under cross-examination, to be untrue.

"Her evidence in relation to classroom training essentially comprised at  “core features” that she said “have always been covered in initial training programmes”, including at “how to declare, investigate, make good and dispute shortfalls”; and an overview of the way in which training had been delivered over the years.

"Notably Mrs Van Den Bogerd’s statement did not reference any of the training documentation which had been disclosed, nor in any respect acknowledge any deficiency at any time in the provision of training to SPMs. The Court may consider both of these matters to be surprising. 

"It further became apparent that Post Office as an organisation – and Mrs Van Den Bogerd personally, had recognised internally inadequacies in training provided to SPMs, including on this very issue of investigating discrepancies. This was something which had been omitted from Mrs Van Den Bogerd’s witness statement, and something she was unwilling to volunteer before being taken to the documents:
PG QC: Can you tell his Lordship whether or not you were aware of inadequacies in training by 2013?
AvdB: Not generally. There had been some -- from my involvement with the initial mediation scheme there had been some issues raised, and there would be some requests for follow-up training from NBSC into the Helpline. But more broadly I can't recall that there was a wholesale problem with training.
"The internal documents which the Claimants had been required to piece together painted a very different picture, and one which led to significant concessions by Mrs Van Den Bogerd:

"The “Branch Support Programme – Terms of Reference”, dated 19 July 2013, which recorded that the Second Sight interim report “did raise questions about the training and support we have offered some subpostmasters. It has been acknowledged that this needs to be investigated further and improvements need to be made” and the scope of the Programme to include...
“Post Office’s attitude to subpostmasters which is often defensive and unsympathetic, with a focus to recover assets rather than to identify the root cause of the problem. There is a lack of a subpostmaster “voice” or opportunities for them to raise their concerns.Inadequate Helpdesk support with responses that are script based, coupled with a decrease in overall branch supportLack of timely, accurate and complete information provided to subpostmasters to support them in resolving issuesInexperienced trainers and gaps in training coverageLack of centralised data or files specific to each branch which hinders aquality investigation from taking place. “
very curious, especially as Mr Green observes:

"Mrs Van Den Bogerd was the Branch Support Programme lead."

I haven't got more than a third of the way through Mr Green's closing submission. It is a 273 page document. If you want to read it for yourself, it's here.

The Post Office's QC is going to stand up on Wednesday and say it is all a load of nonsense, and if I know the Post Office, his closing submission is going to be even longer.

But for now, sit back, relax and read this illuminating exchange between the judge, the Honourable Mr Justice Fraser, and Patrick Green QC. See how long you can last. I listened to four-and-a-half hours of it today:

MR JUSTICE FRASER: There are two important points, aren’t there? The first is in paragraph 65, just underneath letter G, he uses the expression:
”... contracts of a type that are sometimes called relational contracts.” 
So as a concept at Court of Appeal level that description has been approved.
MR GREEN: Repeatedly. 
MR JUSTICE FRASER: However, in the middle −− well, whether it is repeatedly or not, it is approved, and that is binding on me. 
MR GREEN: Indeed. 
MR JUSTICE FRASER: If you go to paragraph 67, between letters D and E, after the reference to Yam Seng with the citation and the words ”a duty of good faith." Lord Justice Beatson says: 
”Leggatt J had in mind contracts between those whose relationship is characterised as a fiduciary one and those involving a longer term relationship ...” 
MR GREEN: Those are two separate categories. 
MR JUSTICE FRASER: Well, I was going to say that sentence is capable of being read in two ways −− 
MR GREEN: Not if you look at Yam Seng −− 
MR JUSTICE FRASER: No, that is correct. But if it is taken on its face as a summary of what Yam Seng is about, it could potentially be relational contracts are a subset of fiduciary contracts, because that is what the judge was talking about, if you look at that sentence. 
MR GREEN: Yes. 
MR JUSTICE FRASER: Or it could mean both fiduciary contracts and relational contracts. 
MR GREEN: Indeed. 
MR JUSTICE FRASER: Now, it has to be, if you read Yam Seng, the second −− 
MR GREEN: The latter −− 
MR JUSTICE FRASER: Because the judge makes it clear it is not fiduciary contracts he is talking about. 
MR GREEN: And that is the false dichotomy point. So it has 9 to be the latter .
MR JUSTICE FRASER: But you then get at letter F: ”... the position will depend on the terms of the particular contract.” 
He then says Mr Justice Henderson in Carewatch, Elisabeth Laing in Acer, demonstrated two contracts that weren’t relational, doesn’t he? 
MR GREEN: My Lord, the only thing just hesitantly there, one way of describing a result in Carewatch is that the implied term pleaded −− 
MR JUSTICE FRASER: That is a way of interpreting it. But Lord Justice Beatson says it is an example of a long−term contract ”which did not qualify ”. That can only be ”did not qualify ” as a relational contract. 
MR GREEN: On one view, reading this paragraph as a whole, it may be what he is saying is ”did not qualify ” as a relational contract into which the court would be more  words at the top of 67, as imported into what Lord Justice Leggatt had in mind in Yam Seng. 
MR JUSTICE FRASER: But Mr Green, that is completely circular. The beginning of 67 is saying that a relational contract has a duty to co−operate or, to use the Yam Seng language, a duty of good faith. 
MR GREEN: Indeed. 
MR JUSTICE FRASER: And that is what we spent a lot of time before lunch exploring. 
MR GREEN: Indeed. 
MR JUSTICE FRASER: Just because Carewatch at first instance didn’t have one, or just because another first instance case doesn’t have one, it is the principles that are important, and then you have to apply each particular −− 
MR GREEN: Precisely. Precisely . 
MR JUSTICE FRASER: −− to the principles. But Lord Justice Beatson in this paragraph says: ”Two examples of long−term contracts which did not qualify ...” were, firstly, Carewatch. I know you have shown me the implied term that was contended for in Carewatch and said that is what he decided didn’t. But certainly the Court of Appeal don’t consider Carewatch to be an example of a contract that was a relational contract. 
MR GREEN: Indeed. 
MR JUSTICE FRASER: That is correct.
MR GREEN: That is what he is −− it does appear to be the case. 
MR JUSTICE FRASER: That is the ratio of this case. 
MR GREEN: It seems to be, yes . 
MR JUSTICE FRASER: All right. 
MR GREEN: So it is not that − I think one can fairly say it won’t be every contract that is a relational contract. 
MR JUSTICE FRASER: No, but it cannot be −− 
MR GREEN: Every long term contract −− 
MR JUSTICE FRASER: It can’ t be because that’ s just one of the features. 
MR GREEN: It plainly can’t be. Precisely. 
MR JUSTICE FRASER: But then in paragraph 68, first sentence, we have the conclusion which is this case doesn’t then go on to consider the potential for having such implied duties because in this case, namely, Globe Motors, it is about interpretation and construction and not implication. 
MR GREEN: My Lord, yes, exactly. 
MR JUSTICE FRASER: So what that case demonstrates is, yes, relational contracts exist, this is what they have in them. Sometimes it has been argued that they exist but, because they are long−term, that isn’ t all there is to it, and here are two examples. And we are not going to go much further because actually in this contract we are dealing with construction of terms, not implication of terms. 
MR GREEN: Indeed. 
MR JUSTICE FRASER: But turning to this case, as in the instant Post Office case , you have got a range of features which you say are sufficient or necessary or their logical conclusion is it is a relational contract.  
MR GREEN: Yes, no one of which is necessarily dispositive.  
MR JUSTICE FRASER: And it is not just the fact it is long−term, it is all those other features. Mr Cavender has a range of features which we will come on to on Wednesday which he says militate against, it but in all of that discussion, dispute, argument between the parties, relational contract is being used as a shorthand term for a duty of good faith and co−operation. 
MR GREEN: Precisely. 
MR JUSTICE FRASER: That is really it, isn’t it ? 
MR GREEN: It is. My Lord, yes. The only point I was going to deal with very briefly −− 
MR JUSTICE FRASER: I’m not saying don’t go on with it −− 
MR GREEN: No, no, but −− 
MR JUSTICE FRASER: But Globe is appellate authority that says there is such a thing. And it doesn’t say what Chitty would have everyone believe it says −− 
MR GREEN: Precisely. 
MR JUSTICE FRASER: Or not ”believe it says”. It doesn’t say what Chitty says which is a duty of good faith means you have to be honest. 
MR GREEN: Yes. My Lord, parenthetically on Chitty, your Lordship will notice that footnote 464 I think it is in Chitty has cases in which duties of good faith, implied duties of good faith have been found. Then it has the ones that my learned friend relies on listed, exactly the ones, and then after that it says ”but see F, YamSeng”. 
MR JUSTICE FRASER: I know. But in a way −− 
MR GREEN: It is unhelpful, perhaps. 
MR JUSTICE FRASER: At the end of Birmingham v Amey there is reference to relational contracts as a concept but it is an undeveloped field. 
MR GREEN: Precisely. 
MR JUSTICE FRASER: It is not completely undeveloped but −−  
MR GREEN: It’s not crystallised −− 
MR JUSTICE FRASER: It basically started with an article from Professor McKendrick, but so far as judicial authority is concerned Yam Seng is really the starting point of it, isn’t it? 
MR GREEN: Yes. I think , my Lord, the academic commentaries go back to Durkheim, Marks, Cohen −− 
MR JUSTICE FRASER: It has been −− 
MR GREEN: −− in Harvard Law Review 1933. A gestation of academic −− 
MR JUSTICE FRASER: But also across the jurisdictions, because some jurisdictions have such a concept and some jurisdictions are hostile to it. 
MR GREEN: Precisely. Your Lordship is right. 
MR JUSTICE FRASER: But it is really where we are now, isn’t it? And it might be, I don’t know how Chitty is written . It might be that whichever editors are responsible for those particular passages or that particular chapter are from one particular school of thought. 
MR GREEN: Indeed. 
MR JUSTICE FRASER: But it does haven’t same authority this has. 
MR GREEN: Plainly not. Plainly no. 
MR JUSTICE FRASER: But then, and the same thing happened in Birmingham, the Court of Appeal then say, effectively,  this isn’ t really the place for a detailed exposition of what does and doesn’t qualify. Which sort of takes you back not quite to square one but --- 
MR GREEN: The only thing −− 
MR JUSTICE FRASER: It’s like playing snakes and ladders. 
MR GREEN: It is slightly. But I think a snake for me, and I’ m not sure it really is a snake but my learned friend would say it is −−
MR JUSTICE FRASER: Alright, let’ s go there. 
MR GREEN: The very end of 68, over the page. It’s prefaced by the sentence on: "The second is that, as seen from the Carewatch Care Services case, an implication of a duty of good faith will only be possible where the language of the contract, viewed against its context, permits it.” 
MR JUSTICE FRASER: Yes, but that is because of the preceding sentence. 
MR GREEN: Precisely. Exactly. So all... your Lordship has the point already. 
MR JUSTICE FRASER: You can only imply a term, and this applies in all sorts of different cases, insurance cases, everything. You can only imply a term if it doesn’t conflict with an express term because the mechanism of implying a term requires there to be a gap. So if there is no gap or if it is contrary to something you can’ t imply the term, and that is plain. 
MR GREEN: Indeed. So in the end, my Lord, in terms of getting back to where we started, a lot of the facets of the analysis on this are absolutely uncontroversial aspects of contract law. 
MR JUSTICE FRASER: Yes. 
MR GREEN: Then, my Lord, I was going to take you very quickly back to Bristol Groundschool. 
MR JUSTICE FRASER: Have we now finished with Globe? 
MR GREEN: We have finished with Globe. Bristol Groundschool is at [reference] and is in −−  
MR JUSTICE FRASER: V1 at tab 34, I think. 
MR GREEN: Exactly. 
MR JUSTICE FRASER: I don’t want this to be misinterpreted, but Bristol Groundschool is a decision of a Deputy High Court Judge dealing with a situation where the conduct complained of was if not completely criminal, was verging and on the borderline of being criminal. 
MR GREEN: Indeed. 
MR JUSTICE FRASER: At one point I think he says, Deputy Judge Richard Spearman QC, he doesn’t want to make findings as though it were a criminal matter, but then at one point he actually deals with the expression −− well , he says: ”I am loathe to decide even to the civil standard, and following a decision not to invoke a claim to privilege against self −incrimination, whether any crime has been committed, but ...”
And then he goes on to deal with that sort of behaviour. So in a way −− 
MR GREEN: It is fairly extreme −− 
MR JUSTICE FRASER: It is an extreme case. 
MR GREEN: It is. The only observation I was going to make, I think from memory it’s at 156 on page [reference]. It’s a very short point. 
MR JUSTICE FRASER: There is a period of notice and that is not antithetical to it being −−
MR GREEN: Precisely. 
MR JUSTICE FRASER: But some of the other cases have notice provisions in them as well. 
MR GREEN: Precisely. So all I was going to say is we respectfully submit it is wrong, which we think is an error into which my learned friend may have fallen, to conflate ”term”, the expectation of the relationship, with ”termination provisions.” 
MR JUSTICE FRASER: That is an arguable point in both directions. That is one I will have to decide because I know Mr Cavender relies on that. 
MR GREEN: Indeed. We respectfully say the fact that one finds these examples of relational contracts where the parties expect it to be a long−term relationship but they nonetheless have a potentially short−term duration if the termination provisions are operated. It is no bar, it is one of the factors. That is that. Then, my Lord, the next point is simply to go back to −− 
MR JUSTICE FRASER: I don’t really need a Deputy District Judge’s view on whether notice is or isn’t given and degree of other factors.  
MR GREEN: My Lord, yes.