Monday, September 2, 2019

"I hate everything about it. I will not go into a post office."

Nicki Arch
A few months back, during UK mental health week, the Post Office announced it had signed up to the Time to Change* campaign.

I asked those who felt the Post Office's actions had affected their mental health to get in touch. A woman called Nicki Arch sent me an email. It was an eye-opener.

Nicki was a branch manager at Chalford Hill post office in Stroud, Gloucestershire. In November 2000 she was suspended by the Post Office for an alleged £24,000 discrepancy. She says the Post Office tried to pin fraud, theft and false accounting charges on her. Nicki lost everything.

This is first time in 16 years she has told her story publicly:

"I originally come from Wotton-under-Edge in Gloucestershire. I left school with 5 O levels and 3 CSEs. I did my A-levels and then a business degree at Bristol University. I moved to Stroud in 1992 and got a job at Brimscombe post office working behind the counter. I stayed at Brimscombe for 5 years.

In 1997 The Subpostmaster sold up to live on a canal boat so I decided to do Post Office relief work as all the Subpostmasters in the area were complaining that they couldn’t go on holiday as they couldn't get the relief.

I was extremely busy. I was asked to do relief at the Chalford Hill branch in Stroud because the Subpostmaster was getting older and didn’t feel she could cope on her own. We got on extremely well and in 1998 she offered me a full time job with holiday pay, so I took it.

The Subpostmaster's health started to deteriorate (she was diagnosed with cancer) so she asked if I would like to take over the stationery shop too. We set up an arrangement that she would pay me a small salary and I would run the shop how I saw fit. I invested my savings in stock and did a lot of sale or return deals with greeting cards and all was well. I used an accounts company in Stroud to do all my account work. It was going really steady and all the villagers were over the moon. I had met my boyfriend by then (I was 26 when we got together). He lived with his family in Stroud and was a tree surgeon. He never got involved in the business.

Unfortunately the lady I worked for died, and in 1999 the Post Office made her husband Subpostmaster. He had never worked in a post office in his life, so he asked if I would keep it going. He took the Subpostmaster salary and paid me a small wage out of it. The shop profits were mine.

Eventually I was able to employ a part-time assistant to cover me if I wanted time off. This worked very well for several years and 3 years later, my boyfriend and I decided we would get our own home and marry.

There were some new small 2 bed houses being built very close to the post office on a shared ownership basis so we went for it.

A year later Horizon was installed. The trainer sat with me for one day and that was it. I then had to show the part-timer what to do.

When I was using Horizon I kept getting pension payments duplicating, yet cash was balancing. One day in November in 2000, the auditors turned up and said I owed the Post Office £24,000. I was mortified. My fiancé and I had not long got out first home on the government shared ownership scheme as we didn’t earn enough to get a mortgage for a starter home by ourselves.

I was told on the day that I had to be driven to a crown [post] office to be questioned and my post office was to shut down until investigations were completed. I did as I was told and locked up and was driven by two Post Office investigators to Stroud Crown office to be interviewed in a locked room. It was a recorded interview and I was denied anyone to be with me or any phone calls. I was distraught! Then they said I was responsible for £24,000 being missing and if I would just admit that I stole it I would be treated more leniently.

I was in a state of shock. I vehemently denied any involvement in theft or wrongdoing but was ignored. The interviewers were terrifying, threatening me with prison.

Eventually they let me go at 4pm so they could inform the official Subpostmaster of what was happening. I got driven back to my car and went straight home sobbing. I rang my fiancé and family as soon as I got home to tell them what had happened.

Later that evening I got a phone call from the official Subpostmaster to say that the Post Office had told him he must suspend me until further notice and I was not allowed on the premises at all. 

I asked about my shop and how I was meant to earn a living but he said that the Post Office said he had to do this and he had no choice. 

Within 24 hours everything had become ashes. I sought a solicitor, and then the long haul started.

I was questioned over and over again by the Post Office at Stroud police station with my solicitor to the point where 10 months later I was charged with theft, fraud and false accounting.

The case was referred to crown court. I was also told that I had to empty my shop and I was sacked.

It was all in the local papers and everywhere I went my customers were blanking me and saying that I’d robbed the post office. I couldn’t cope and my fiancé was told to prepare for my imprisonment.

The wedding we had planned, funded by our parents was cancelled as neither one of us felt like we wanted to celebrate. We had no idea whether we even had a future. We were heartbroken and on our knees.

I went for a routine GP appointment and my doctor was shocked when she saw me. I was a wreck and could hardly speak. She prescribed me Prozac as I was so scared and just wanted to end my life.

My fiancé and I used to sit up at night and discuss ways which we could be happy together for ever and the only idea we had was to die together.

In the summer of 2001 went to the local registry office and got married with no one there other than two witnesses.

We had no professional photos, no wedding dress and no honeymoon or party. We just went home. We were both highly medicated to keep calm, thank God.

My husband is dyslexic and was not domesticated in the slightest so my family promised to help him get through if I went to prison. He promised to wait for me and we shared each night on our own just sobbing and hoping for a miracle.

The Post Office were so threatening and we were convinced that no matter what I said it was a done deal.

In April 2002 we had a 3 day trial with which I was found not guilty and it was all over.

I walked out of court and collapsed to the floor sobbing with relief. We got home and I didn’t have a clue what to do. We had to set up an IVA as our debts had mounted because I couldn’t work.

I’d lost my business and my husband just worked as a local driver. We sold our home to pay the housing association back and stayed with my parents for a while to save up a deposit to rent a home.

We never heard from the Post Office again. We have lived with this for 19 years and have no wedding pics and started our marriage in the worst possible way.

We will never get that time back. I have suffered with depression and panic attacks ever since and take anti-depressants daily to enable me to get on with life. The only thing I’m guilty of is a rubbish wedding day for my husband."

I found Nicki's story very affecting, and I wanted to know a bit more about what happened, so I gave her a call.

We ended up chatting for over an hour. We covered Nicki's mental health battles, the way Post Office prosecutors and investigators behaved and what her hopes are for the group litigation.

Nicki in happier times
To the best of my knowledge, the email above and the interview below represents Nicki's honest recollection of events and honestly-held opinions.

I started by asking Nicki to tell me what life was like before her Post Office "audit" in November 2000.

"We were engaged to be married, we'd just bought our new home. We did everything by the book. And I had a little business, wasn't much, there's no way we could have lived just on my money. But it was steady. So in theory, it was a perfect world, and then suddenly, everything changed. Literally everything."

Nicki's branch audit was attended by three Post Office staff members, two of whom turned out to be rather threatening "investigators". They appeared to be expecting a large discrepancy, and when they found one, Nicki was driven straight from her branch to Stroud Crown Post Office for an interrogation.

"I just look back on it and think how ridiculous, why did I let them do it? Why go with them, even? I had to leave my car behind. They said: "You must come to the Crown Post Office." I said, "Can I ring my fiancé?" and they said: "No, you're not ringing anybody.""

The nightmare had begun.

"They stripped my life apart. I presented every single bit of financial history from the minute I left university to them. They came to my house to see what was in it. They didn't even have a search warrant. My parents were like: "These are the Post Office, so you work with them and let them do what they want to do.""

Nicki was unable to explain the cause of the discrepancy, because, as far as she was concerned, she hadn't done anything wrong. It didn't stop the investigators suggesting that if she'd just confess to theft, things would go much easier for her:

"They kept saying; "You know, it's in your own interest to just stop this messing around, and stop wasting all our times. We are the Crown. You do realise who we are?" And I'm like, hang on, you're not even police officers."

Nicki was not impressed by what they were trying to accuse her of, either. "They had no idea what the hell they were talking about. I was like: "No, that isn't what I did." and they said "Well, that's what the [Horizon] paper says." and I would say "No, the paper doesn't say that, does it?" and they would say "Oh, you're just going round in circles now, you're just wasting our time.""

Predictably, Nicki was told she was the only person having problems with Horizon. "They said "We've never, ever had a problem with this system." And I'm like, "Well, I'm the first, then, aren't I?" They said: "Don't you think we've trialled it so many times? These are professionals. Not like you, these are professional people, who have worked the system time and time again. We've never had a problem with it."
Site of the former Chalford Hill Post Office today.
Nicki remembers Horizon's supposed perfection as a recurring theme: "This Horizon system was unbelievable. It was state of the art, it was the best the Post Office has made, it been trialled and tested so many times, and I was just totally incompetent. And a thief, nearer the point."

Nicki's boss and her part-time assistant, Marlene, stopped all communication. The Post Office had told them they were needed as prosecution witnesses and they couldn't speak to her.

The local paper ran a story on Nicki being suspected of theft. No one would employ her. With only a single income, Nicki and Steve fell behind on their mortgage payments.

"I just stayed in. I did attempt, several times, to go to the supermarket, and I just felt everybody was whispering, "Oh, that's the woman who steals from pensioners," and I thought I can't, I can't do this."

Things got desperate: "Steve wouldn't tell me truly how he felt, because he didn't want to make me feel worse. We weren't married then, so he could walk away. And I kept saying to him, "Why don't you just walk away? Why don't you just go. If you go now, you won't have to be involved in any of it."

Nicki's biggest concern was what would happen to Steve if she were sent to prison.

"I thought he would never cope. He's completely dyslexic, he can't even cook, and I thought... he wouldn't even know how to pay a bill. And I'm like, "Steve, just walk away. For God's sake, just walk away from this," But luckily, he didn't."

The interrogations continued:

"I thought they were going to drop it. I thought they're never going to take this to court, surely. And I was saying to my sister they're just going to keep on and on and pressure me, hoping that I'm going to crumble. And I'm not. And that "we want to question you again, we want to question again" kept coming. And we'd set up at Stroud police station, in a little room where they'd come, and it was ridiculous. We were just going round and round in circles, and I'm like, are they ever going to charge me with anything, or is this ever going to end?"

Steve began to feel very stressed by the situation, struggling with his concentration and making mistakes at work.

"He came home one day and said, "I don't feel right. I'm going to go to the doctors." And I said, "Well, do you want me to write down how you feel, and then you can take it with you? Because you're not very good at expressing yourself."

Steve agreed. As soon as the doctor saw the note she asked Nicki to make an appointment with her.

"She said, "What on earth is going on?" I said, "Nothing." And she said, "Nicki, I've read that letter. There is something seriously wrong with anybody who writes letters like that."... and I just broke. I just crumbled. She was the first one who delved deep enough to say you can break if you want to. Because I didn't show it to anybody. I thought I can't let Steve know how I feel. You know, because I just thought, God, this is life over."

The stress started to push Steve and Nicki towards a very dark place.

"It got to the point when Steve said, oh, we'll just take a load of pills, and we'll go together. Let's not give them the satisfaction of taking our life away. At least we would have control, you know? And because we both started on antidepressants at the same time we had access to the pills."

Thankfully they didn't attempt suicide, but their lives collapsed. They had been planning a big wedding, but neither Nicki or Steve felt capable of facing family or friends.

"We were going to have a church wedding, but I said I can't... I can't smile anymore. I don't want to have to pretend in front of people.... Until we see the end of it, I cannot live, do you know what I mean? So we went straight to Stroud's registry office, got married, and within half hour we were back home."
Steve and Nicki's wedding day, 28 August 2001

Throughout this period there were pre-trial court dates to deal with. Nicki kept Steve away from it. 

"I thought he just generally couldn't cope. It would send him doolally. He did go to the trial. But up until then, I just went with a friend. I wouldn't let my parents come, either. I was so ashamed."

I asked Nicki if the Post Office ever tried to claim she was the only one with access to her Horizon terminal, something which has been comprehensively debunked across the course of the current litigation.

"That was what they thrived on, for weeks: "there's no way anybody could put anything into that computer, other than you. Those figures on that computer were you. It could never have been anyone else. Nobody could even get access to it. We couldn't see it until you printed off that weekly report and showed it to us." And it was all bullshit. Absolute lies. They could go into the computer any time."

Nicki says throughout this process, her solicitor seemed out of his depth.

"He sort of was terrified of it. He was like, "Oh my God, I don't know what the hell we're going to do. The Post Office are just going on and on and on, saying the same old thing," he said, "and I can't advise you to say any different to what you're saying, but I don't know how this is going to end," he said."But you need to be prepared for the worst.""

Steve did come along to one of the last legal conferences before the trial. Nicki's solicitor told them the Post Office had offered her a deal. The fraud and theft charges would be dropped if she pleaded guilty to false accounting. Her solicitor told her she might want to consider it.

Nicki refused. "We was walking home, and Steve said "Are you sure you don't want to just say you've done it, just so that we can actually start a life after?" I said no, I'll take whatever they give me. I'd rather do that and be able to live with myself than to do any sort of bargain that I know is a complete load of crap. And he said, "Fine. I'll stand by you, then."

Nicki's solicitor got a barrister involved for the trial. "He was a bit more, "I'm not having any of this..." you know what I mean? He was a bit, "No, they're going to have to come up with summat a bit better than that." And he wasn't scared of them at all."

He offered Nicki a piece of advice: ""Just be yourself," he said, "Don't try and solve their problems for them." and I said, "What do you mean?" He said, "You keep looking to find solutions to this," he said, "Stop it. That's not your job. That's not what you're here for.""

In April 2002, Nicki was put on trial. The Post Office's case was that Nicki was running a scam, producing duplicate records of pension payouts on Horizon, handing one out to each genuine recipient and trousering the rest.

"You stand in the dock, you've got two prison blokes with you... I was in my early 30s, you know? I'd never, ever been in a courtroom in my life. I'd never been arrested, I'd never done anything. I was from a very strict family, and... and I'd done quite well for myself, considering we were from a family of six. All of a sudden, I'm in Bristol Crown Court with two prison officers behind me. My mum was like, "Oh, my God, this is the Queen's business. They're going to send you to prison." They were absolutely devastated. My dad was going through kidney failure, he was in hospital the day the trial started. It was just horrendous"

Nicki's former boss and her part-time assistant, Marlene, gave evidence as prosecution witnesses, but it didn't really work out for the Post Office.

"They went to court because the Post Office told them to, and they were questioned on oath, and my ex-boss was like, "Well, I've just helped her get her mortgage. I just happened to give her a reference, you see. So no, she hasn't got any money." And he made [their barrister] look a twat, to be honest. And Marlene went up, and she said, "Well, no, Nicki hasn't got any money." So although they were Post Office witnesses, they might as well have been mine."

I asked if the Post Office ever explained to the court how she was supposed to be doing this fraud, the actual mechanics of it.

"No." she says "They didn't have a clue. Nor did I."

Nicki remembers the Post Office barrister getting quite het up.

"He chucked a bundle of dockets at me and said "You explain this lot." and I said "I don't know what you want me to say about it." And he was shouting, and getting louder and louder, saying, "You explain how it all works," and I said, "I don't... I have nothing else to say about them. They are what they are," you know? And he was getting really angry."

The Post Office barrister then tried to get the prosecution witnesses to explain the fraud. "They tried. But we were all stood, including myself, in bewilderment to say, hang on a minute, on paper, in theory, your cash is right, your pension dockets is right, it's just your weekly report that's wrong. So how do you know you're owed any money at all? And the Post Office were like, well, Horizon's weekly report tells us we do. And the judge then stepped in and said well, no, your cash is right, your dockets are right, your customers are happy... but the weekly report Horizon report is saying different. That's where we're at."

The whole thing sounds pitiful.

"One of the prison officers was drawing funny little pictures, and passing them to me to try and cheer me up. I do remember that. I've kept one because I felt, oh, bless... I just looked at him, and I was just... I don't know what I'm doing here. And he must have felt sorry for me or something, you know, and he was trying to cheer me up. And he was there all the way through for three days, and I thought, oh God, he'll keep me upright, if I collapse."

I asked Nicki if she felt the judge smelt a rat, or whether he was straight down the line in his summing up.

"Before the jurors went out to make a decision, I do remember him saying something like make sure you consider whether we've actually got a completely innocent person stood here. It was words to that effect, And I thought: he believes me. My barrister was the same, in all fairness. I have 100% faith that he genuinely knew I was innocent."

The jury were of a similar mind. They took two hours to find Nicki not guilty.

After the trial Nicki never heard from the Post Office again, but the reverberating effect of her trauma continued. Penniless, in 2004, Steve and Nicki sold their home before it was repossessed. They entered into an IVA to stave off bankruptcy and moved in with Nicki's parents.

Nicki in hospital in 2005
In 2005 Nicki had a complete mental health collapse and was admitted to hospital with a number of physical symptoms. Steve could not cope at work - he was making mistakes and becoming a potential liability to himself and others. He started delivery driving, which he does to this day. Nicki was eventually able to get a job with social services. They have slowly rebuilt their lives.

Nicki does not hold back on what she thinks of Britain's "most trusted brand":

"I hate everything about it. Even now, I will not go into a post office, I will not use anything to do with the Post Office. I will drive to somewhere to deliver a letter before I'll post it. I can't bear it. I'm still that bitter, now. It's shocking, really. I just think, oh, get over yourself, but I can't. I'm never going to have a wedding day. I'm never going to have a father walk me up the aisle now because he's dead. It's gone, you know?"

She is particularly scathing about the Post Office's recent mental health wokeness.

"I couldn't find the words. How bloody dare they? I just do not know how they've got away with it, and I just wonder what on earth is going on in government that nobody has put a stop to it. Because they're vile. I fear for anybody who even considers working for them, let alone all the Subpostmasters now. It's not even humane. I just don't get why they're getting away with it. I just don't understand it. And I think they'll still get away with it. The people who did this to us. They've moved on. They all live with themselves. They didn't give a shit. They don't even work for the Post Office anymore, half of them. Nobody's going to be accountable. The vile people that pushed me into the back of their car... they traipsed me in public through the Crown Post Office in Stroud... All the staff there must have known what was going on, I was going to be... you know, I was some sort of villain. I had to go through the public entrance being escorted by those two, recorded interviews and all the rest of it. And those two people, who just sleep at night like babies, will carry on. And nothing anybody does, including Judge Fraser is going to change that. In fact, they've probably retired now, living it up in Costa del Sol, or something. I don't know. You know what I mean? God, I'm that bitter..."

Nicki doesn't have much hope for the group litigation.

"I don't think we'll get any money, to be honest. By the time everybody's made their profits from it... Freeths are amazing, don't get me wrong, they are brilliant. But at the end of the day, it's a business transaction to them. You know, we are a business transaction, that's all we are. We can get emotionally attached as much as we like. I don't do that anymore. Whatever happens, there is going to be not one person who will say, God, I'm really sorry. And that is never going to happen. No. They will never, ever be accountable for what they've done. They won't. And we'll all be left the same as we thought we were, without an acknowledgment, without apology... we might get 50 quid if we're lucky, what, split between 500-odd people? I don't know. It won't be nothing significant. It won't be life changing for any of us."

Despite this, Nicki is following the trial closely, and was delighted with the judgment which was handed down on 15 March: "I'm slowly falling in love with Judge Fraser," she says. "When I read his verdict, I thought, yeah, you've got it. You've got it. You know exactly where we're coming from."

Nicki was on Prozac for more than a decade. Her longest period without drugs was three years, but since she joined the litigation the anxiety has come back. Nicki has taken early retirement from her job in social services and is back on the antidepressants. On Steve, she says:

"20 years on, we're solid. Absolutely solid. It's probably one of the strongest marriages you would ever get. And we've got two kids now. Steve is just amazing, though. I don't know how he done it. I think he's more... mind over matter. It was a hideous time, don't get me wrong. At times, we were both on our knees, screaming. And I still can't answer now what on earth made him stay. Because nobody in their right mind would. I can't think of anybody who would want to have lived through what he did. I've always said, if I get any money whatsoever, he will have every penny. Because there's nothing, no amount of money, nothing I could ever give that man that he deserves for standing by me and taking this on as his life. Because I'm just... I'm just one screwed up human being, you know? I'm not the same person as I was when he met me. I may look similar, but I'm not the same. I'm bitter, I'm nasty, I know, my moods are shocking. And I'm still like that to this day. Because I'm used to being at rock bottom. I'm confident there. I'm on two Prozac every single day, just to function, just to keep well and contented. It is horrible. It is horrible."

Nicki has never spoken to anyone about what happened to her in this much depth before. She's never met another litigant or even spoken to Alan Bates, founder of the Justice for Subpostmasters' Alliance.

"I know the sort of person I am. I know if I get friends with these people, if I go up and meet people who've gone through the same as me, I'm going to have a bond with them like no other. And I'm going to jump into this all guns blazing, and it's going to overtake my life. And for what? I've spoke to them on Twitter, and.. I would love to meet somebody who knows exactly how I feel. Because I've never done it yet. Never. So for somebody to say, actually, Nicki, I've done exactly the same, and they took me away as well... you think you'd make friendships like no other. Because nobody else in the world could have that same bond and same memory, and know exactly what you live with than those other people. But it's all time and emotional consuming, and I just think would my family get affected by it, would I come home, you know, when all this is over, and we still land up with nothing."

My thanks to Nicki for speaking to me. Given her description of her trial, I am particularly keen to get hold of the court transcripts. Nicki tells me when she was trying to obtain documentation as a claimant for the litigation, she was told all the recordings of her interviews by Post Office investigators had disappeared. I would very much like to hear the Post Office's side of this, but they say they will not comment on individual cases.

You can read more individual stories from some of the claimants (and non-claimants) currently in dispute with the Post Office over what was meted out to them whilst they were Subpostmasters, branch managers and assistants or counter staff.

* I asked Time to Change how they felt about lending their credibility to the Post Office in the light of the Post Office's alleged activities with regards to its Subpostmasters' over a period of twenty years. Time to Change listened politely and told me they weren't going to comment. I wrote a piece about their silence.

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Saturday, August 24, 2019

Post Office vs Mental Health: "It's been a living hell."

Deirdre Connolly used to be a credit controller working in Strabane, County Tyrone, for a company called Frylite, which delivers and recycles cooking oil. Deirdre's husband Darius was employed by Guinness as a forklift operator.

In 2006, as Deirdre was approaching her forties, she and Darius decided they wanted a change, mainly to spend more time with each other and their young family. A lease came up on a shop with a post office at Killeter, which wasn't that far from where they lived. The Connollys gave up their jobs, borrowed to buy the lease and got started. They thought they would be set for the rest of their working lives, or to use Deirdre's turn of phrase, "we would be carried out of there in coffins."

As part of a gradual transition process, Deirdre first took over the shop, and was given a basic idea of how to use the Post Office's Horizon system by the previous incumbents. For the first six weeks of being a Subpostmaster, no one from the Post Office came down to show Deirdre what to do.

"I had to go into the post office without training... and try to get used to the whole new system which I knew nothing about... I was reading manuals to work out how to do things."

Deirdre, did, of course, have access to the infamous Horizon helpline: "They were useless. They couldn't understand my accent to start off with [Deirdre has a rural Tyrone accent, and she does speak quickly, but it doesn't take long to get used to]. They could never actually explain anything, how to do anything... I didn't know what I was doing."

Deirdre was operating a system she didn't know how to use, under a contract she hadn't been given*, which would see her held liable for any financial discrepancies at her branch.

With Horizon it is possible for any operator to make a number of mistakes in seconds which could potentially create a balance discrepancy of tens of thousands of pounds. As I have found from speaking to other former Subpomasters, Deirdre's situation was not unique.
The Connollys' Post Office in Killeter, County Tyrone
After six weeks, a trainer came down for a day and a half. The Post Office would later claim Deirdre also went for a week's training in Belfast. "I didn't." she says, "It never happened."

Sitting duck

Somehow, Deirdre, with the help of Darius, got up to what they thought was a reasonable speed. The retail area became a success and with a lot of hard work, Killeter post office and store became a viable business at the centre of the community.

Things were going so well in 2008 the Post Office suggested the Connollys might like to take on a couple of outreach post offices in Ardstraw and Aughabrack. An outreach branch is where a Subpostmaster takes a Horizon laptop, cash and a pinpad into a community without a post office, and operates a basic service from a library or village hall via the data signal on a mobile phone.

This is potentially a risky business at the best of times, but the Connollys' main branch was closer to the Irish town of Donegal than any town in the North. Paramilitary organisations still operate in the area, and when Deirdre was the Killeter Postmaster there had been a number of "tiger" kidnappings. Deirdre was often travelling on her own to and from remote outreach locations at advertised times carrying thousands of pounds in cash in her car. Mobile phone reception in this part of the world is intermittent and without it, Deirdre's panic button wouldn't work. Deirdre regularly changed her route to and from her outreach offices, but she was essentially a sitting duck.

"I was scared. I was waiting on someone to jump out in front of me on the wee roads. I had to contact a local sergeant at one stage because I thought I was being followed."

Despite this hairy situation, Deirdre diligently incorporated her outreach activities into the working week and the Post Office seemed perfectly content to have her travel round County Tyrone carrying large amounts of cash without any proper protection.

"Step out. You're finished."

On 2 June 2010, the Connollys' happy family life and successful business was ripped away from them in a matter of hours.

A Post Office auditor arrived and started going through the Horizon accounting logs with Deirdre. He found a £16,592 discrepancy with exactly £11,500 out of whack on the outreach terminal. The auditor suspended Deirdre on the spot.

Darius was there. "He said: "Hand me your keys. Step out. You're finished.""

The auditor changed the time locks, the combination on the safe and took the single key to the post office "fortress" area away with him. The Connollys were left reeling.

The branch remained closed for a week, causing all sorts of problems. The retail side took an immediate hit as customers were diverted to other branches and the Connollys tried to come to terms with what had happened.
Deirdre with Darius

The same auditor returned a week later, let himself into the fortress and did another audit, during which he found £1000 in cash in the safe which he had missed the previous week. The discrepancy was now £15,592.

One moment the Connollys were a hard-working, successful, respectable couple, known to everyone in their village and the surrounding area. Within days they'd lost their livelihoods and Deirdre was under suspicion of theft.

A week later Deirdre was summoned to Belfast to meet with Post Office investigators. Darius accompanied her, but on arrival he was ordered to wait outside.

Deirdre was allowed to have a member of the National Federation of Subpostmasters present. "He was a 'yes' man", she says, and remembers him sitting there saying "you've done this... ", agreeing the Post Office approach to her suspension was correct. The Post Office investigator told Deirdre she was the only person having problems with Horizon, and no one could explain to her what she had done wrong or how the discrepancy had supposedly arisen.

Eight days later Deirdre was summoned to another interview in Belfast. Again Darius was not allowed to attend, but on this occasion Deirdre had her solicitor present. Nonetheless, she remembers this being closer to an interrogation, with the investigators asking why she had stolen the money and what she had done with it. Deirdre says afterwards her solicitor advised her to make good the discrepancy.

Worried for their future and unaware there were dozens of Postmasters throughout the UK having similar problems, the Connollys borrowed money from their families and handed a cheque to the Post Office for £15,592.

The Post Office responded by terminating Deirdre's contract.

The aftermath

The shock of what happened to the Connollys, particularly Deirdre, is something the family are still living with today.

On 4 August 2010 Deirdre received a letter from the Post Office informing her that she was not going to be prosecuted. The realisation that this could have happened to her was a hammer blow. "I didn't even think of it. Maybe I was naïve, but I'd done nothing wrong, so why would I even think of it?" Deirdre considered ending it all. "Darius would've been coaching soccer... I was here on my own. And I got myself in a real, real tizzy. I could've topped myself that evening if a friend of mine hadn't come round. That was a close call, but I came out on the other side. I'm here to tell the story."

As Subpostmaster, Deirdre had been earning around £1800 a month from the Post Office. This now went to a temporary Subpostmaster who the Post Office installed in the Killeter branch. The Connollys received a small amount of rent under this arrangement, but the hit to their finances and the disruption to their business was significant. The shop was no longer the happy place it used to be. Retail earnings suffered. "People stopped coming in because they thought I stole the money." Deirdre told me. "No smoke without fire, you know...?"

The Connollys struggled on, but it wasn't working out. They had a mortgage on the shop lease, a mortgage on their home and owed money to their family and suppliers. In 2013 they were declared bankrupt. Shortly afterwards, Deirdre developed epilepsy, which she says her consultant believes was directly due to the stress she was under.

"It's been hell," she says "a living hell... We were doing so well. We were having a good craic in the shop and everybody used to come in in the morning and be standing chatting in the shop and there was banter... but no... it all changed."

Deirdre was diagnosed with anxiety and depression. Sean, Deirdre's teenage son, was a promising footballer. He had had trials in England, and was keen to see what level he could reach. As he watched what his mum was going through, he became withdrawn and developed anxiety and suicidal thoughts. He stopped going to training and once found himself walking into a river, ready to dip his head under and give it all up. Sean has recovered to a degree, but his parents say he is a changed man.

Mediation scheme and court

Although Darius and Deirdre's marriage was put under severe strain, they came through stronger. "I have to say our families were so supportive." says Deirdre. "I was ashamed it happened because I felt as if I'd let them down. I don't know why but I did. I didn't know where the money went, but it was costing family, costing us."

The Killeter Post Office in later years
I asked Deirdre if she dwelt on how the discrepancy could have arisen. "Every day! Every day until we got out of that shop, I was trying to work out ways that would let me look for it, where it could've gone wrong."

Deirdre and Darius had no idea their situation was not unique until August 2013, when Darius's sister saw an article in the Daily Mirror about a Subpostmaster wrongly accused of stealing £85,000. The piece quoted the Justice for Subpostmasters Alliance. They contacted Alan Bates, the founder of the JFSA, just in time to get on the mediation scheme.

Unfortunately, the mediation scheme collapsed in acrimony before Deirdre got a chance to sit in a room with the Post Office, however her case report, compiled by Second Sight, an independent forensic accountancy firm, makes for interesting reading.

Second Sight's job was to investigate each applicant and decide whether or not they were suitable cases for mediation. Here is what they have to say about the Post Office's efforts to uncover the cause of the discrepancies at Deirdre's branch:
"We have drawn the conclusion that no contemporaneous investigations were carried out into the cause of the shortfalls identified by the Audit. Post Office rejects this by stating: "Investigations were carried out by Post Office. The lack of contemporaneous notes does not logically lead to the conclusion that there was no investigation, particularly in light of all the other information presented in [our submissions to Second Sight]"... we are unable to verify the validity of Post Office's statement on this subject and, in any event, we note Post Office's acknowledgement that an undocumented investigation may have been carried out, which would clearly not be sound investigative practice."
So, according to Second Sight, either the Post Office team:

- didn't bother investigating the causes of Deirdre's £15K discrepancy,
- did a thorough investigation and weren't handing the results of that investigation over,
- did a slipshod, half-arsed job.


Second Sight's report concludes:
"We... find the Applicant's remarks regarding her training to be rather compelling and, in the absence of any evidence to the contrary, we are inclined to believe that she really was inadequately trained and supported. We have concluded, therefore, that Post Office bears some responsibility for this branch's losses."
By this stage the Post Office Horizon story was generating a reasonable amount of media interest. In May 2015 Deirdre felt well enough to go on Stephen Nolan's BBC Northern Ireland radio show to talk about what had happened to her. The Connollys were still trying to piece together their lives, and Deirdre, as an innocent woman, wanted the cloud of suspicion around her lifted. She describes going public as "a weight off my shoulders".

When the Bates and others v Post Office group litigation began, Deirdre became a claimant.

To mark the first trial, in December 2018, Kevin Magee, a BBC Northern Ireland television journalist, made a piece about Deirdre. Her former employer, Eamon McCay at Frylite, saw it.

Eamon had no idea what Deirdre had been going through. He made contact, and within weeks Deirdre was back, doing her old job at her old company, working for the first time in nine years. She's thrilled.

"It's great. I'm enjoying it. Walking in the first day, it was really scary, but for Eamon to have the confidence in me, to take me back... it means I'm not worthless. For a long time, I thought I was worthless."

Uncertain futures
Tight knit: Deirdre, Sean, Gemma and Darius Connolly
This, though, is not a happy ending. It has taken the Connollys years to get anywhere close to being over their experience. "We've been married 28 years now," says Darius, "You've never seen anybody go from being so outgoing... when we were married the parish priest said DD [Deirdre] was "vivacious" - full of life and full of joy - and that's how she always was. But after what happened she became very introverted."

For a long time Deirdre was clinically depressed, taking medication and living on benefits. She's going to be on epilepsy pills for the rest of her life. Deirdre used to be a confident person. "Now I second guess everything I do." she says.

Financially, the Connollys have lost what should have been the most productive years of their lives. When they should have been building their nest egg, they were paying off debts. Deirdre was unable to work. Today, they have their heads above water, but they have no pension, no investments and still have a long way to go before they pay off the mortgage on their house.

The Connollys have been following Bates and others v Post Office, and have scraped the money together to travel over to London to sit in court and bear witness for at least one day of both trials. "It makes me feel sick," says Deirdre, "when I was told I was the only one, to hear they knew about all these problems."

Deirdre is unequivocal about what she wants from this court case. "An apology. I want my name cleared."

"They lie to you," says Darius, "they tell you nobody else is having any bother and then... you look at what they're doing and you look at how they're conducting themselves and the more you learn about them the more sickened you are really. The people in government have to know how crazy this whole thing is."

I asked the Post Office for their thoughts on Deirdre's situation. They replied "it would not be appropriate to comment on an individual case. The litigation is continuing."

My thanks to the Connollys for their patience as I put this piece together and the numerous interviews which took place over the phone. If you want to read more stories of the people caught up in this scandal, click on Victim testimony at the top of this page.

* Deirdre had signed an "Acknowledgement of Appointment letter", about which forensic investigators Second Sight later said:
"We are surprised to see that Post Office is still referring to such Acknowledgement of Appointment letters as "the contract", when they most obviously are not the contract itself... In stating that there exists no evidence to show that the full 114-page contract was not supplied, Post Office has omitted to say that it has been unable to present any evidence to show that it was supplied."


Addendum: One of the recurring themes in the nine years I've been following this story is the number of Subpostmasters who claim they were told by Post Office contract managers and investigators that they were the only ones who were having problems with Horizon. Time and again Subpostmasters bring it up as a prominent and memorable feature of their trauma. The effect of being told this lie was obvious - isolation, self-doubt and a sense of helplessness.

It seems to have been a Post Office investigation strategy, yet over the course of two trials it has not been addressed in the High Court. Jo Hamilton, a Subpostmaster who was convicted of false accounting, alleges a Post Office contracts advisor called Elaine Ridge told her she was the only person having problems with Horizon. Elaine Ridge gave evidence in the first trial in this litigation. It would have been simple to ask her on oath if she had ever said this to anyone. Yet it was not a feature of any line of inquiry with any Post Office or claimant witness, despite the fact Second Sight picked up on this during their investigations for the mediation scheme.

Maybe it could be argued it's a legitimate investigation strategy for people suspected of serious offences (it doesn't feel like one), maybe proving it would be tricky, but it is concerning there was a golden opportunity to expose what seems like some serious mendacity, yet it was passed up. Perhaps this is for another blog post.

If you can, please help keep this crowdfunded public-interest journalism project going by chucking a few quid in the tip jar below. Contributors who give £20 or more will start receiving regular "secret" emails which have all the info and gossip about this litigation as it makes its way through the courts. Click here to see how and where your money is being spent. Click here to find out more about the story.

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Friday, August 23, 2019

High Court Judgments

A page dedicated to bringing you all the judgments in the Bates and others v Post Office group litigation.

A pretty thorough bollocking issued to both parties.

Write up (with link to judgment)

The Post Office attempts to selectively tailor the evidence which the court is to consider by asking the judge to strike out witness statements it doesn't like and/or which might lead to adverse publicity. Judge refuses.

Write up (with link to judgment)

180,000 word judgment handed down on 15 March 2019 in the light of the first (Common Issues) trial. Massive win for claimants. Post Office spanked.

Write up (with link to judgment)

Oh the drama. Judge gives reasons as to why he is rejecting the Post Office's recusal application.

Write up (with link to judgment)

In which the judge reveals both parties have managed to spend more than £25m between them on this litigation so far.

No write up.


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Judgment No 1: Laying down the Law

I hadn't read the first judgment in Bates and others v Post Office' judgment until recently. I thought it was about disclosure. It's not. It's a boll*cking.

By the time it appeared on 10 November 2017 both parties had managed to annoy the litigation's managing judge Sir Peter Fraser to a considerable degree. In the judgment he lists exactly how:

- "failing to respond to proposed directions for two months";
- "failing even to consider e-disclosure questionnaires";
- "failing to lodge required documents with the court";
- "failing to lodge documents in good time";
- "refusing to disclose obviously relevant documents";
- "resisting any extension to the "cut-off" date for entries of new claimants on the Group Register";
- "threatening pointless interlocutory skirmishes".

The formal order which created the Bates and others v Post Office group litigation (GLO) was made on 22 March 2017.  The rules of the GLO stated that the first case management conference (CMC)  had to be held on the first available date after 18 October 2017. Sir Peter Fraser was appointed managing judge and on 25 April ordered that the first CMC would take place on 19 October.

Unfortunately, that date didn't work for the claimants' lawyers. Inadvisedly, they told the judge they'd get back to him when they'd agreed a date which suited both parties. Bad move. As Sir Peter says:
"This... appeared to be a clear case of the tail wagging the dog. It is notable that judicial availability, and the dates ordered both in the GLO and in Directions Order No.1, were considered such a secondary consideration to counsels' diaries."
The judge told the parties a witness statement would be required before he would consider shifting the date of the first CMC. Astoundingly: "this particular direction was then wholly ignored."

Another bad move. Sir Peter ordered the first CMC would take place on 19 October 2017.

Somehow the Post Office failed to take note of how thin Fraser J's patience was wearing. Shortly before 19 October came round the Post Office's lawyers suggested there didn't need to be any trial in the litigation until 2019 at the earliest. His Lordship was not amused:
"To describe this approach as leisurely, dilatory and unacceptable in the modern judicial system would be a considerable understatement."
The Post Office came into line and the first trial was fixed for November 2018. The day after this was agreed, the Post Office's leading counsel (Anthony de Garr Robinson QC) told the court he was not available, and could the first trial be punted into 2019 anyway?

Interestingly, this was not opposed by the claimants. However, Sir Peter "declined" this application for a further delay, and said he would hand down his written reasons. Hence judgment no 1 in this litigation - both a boll*cking and a reminder to our well-remunerated learned friends that time, for the claimants and the defendant, is very much an issue.
"Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach... On the face of it, a delay in the first round of substantive hearings from November 2018 into early 2019 could be viewed as modest. However, in this case it would mean that the first substantive hearing would commence almost two years after the making of the GLO. That is simply far too long in my judgment. The delay until November 2018 is more than enough as it is... All of the many claimants, and the defendant, need resolution of the matters in issue."
The judge concludes by stating:

"A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders."

The parties were on notice.

Click here for the full judgment - it's only 21 paragraphs long and definitely worth a look.

If you can, please help keep this crowdfunded public-interest journalism project going by chucking a few quid in the tip jar below. Contributors who give £20 or more will start receiving regular "secret" emails which have all the info and gossip about this litigation as it makes its way through the courts. Click here to see how and where your money is being spent. Click here to find out more about the story.
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Saturday, August 10, 2019

What's this all about?

A lot of people ask me what this story is all about. Here, in as few words as possible, is the answer:

Subpostmasters (the people who run local post office branches) are legally responsible for the accounts presented to them by the Post Office's branch IT system, Horizon. However, Subpostmasters are not in control of that system. It is operated by the Post Office.

Subpostmasters are unable to dispute the accounts presented to them and are held contractually liable by the Post Office for any discrepancies. If Horizon says you should have £80,000 worth of cash and stock in your branch and you only have £50,000, you owe the Post Office £30,000.

The Post Office is not obliged to investigate the cause of a Horizon discrepancy. Many Subpostmasters are certain computer glitches or other uninvestigated causes outside their control are behind discrepancies appearing in their accounts.

Postmasters who refuse to sign off their accounts are unable to move from one branch trading period to the next. The have to either agree to make any discrepancies good, or shut their branches, putting them in breach of contract.

In the past, Subpostmasters who refused to make good discrepancies were sacked, losing everything they'd invested in their branches.

Potential miscarriages of justice

Some Subpostmasters, mystified by continual or large scale losses and scared of being sacked and losing their businesses, signed off accounts they knew were not an accurate reflection of their stock and cash. They say they did this to avoid being held liable for discrepancies which were out of their control, which they could not afford to make good, and to keep trading. The Post Office called this false accounting.

Subpostmasters unwilling or unable to make good large discrepancies were sometimes prosecuted (by the Post Office's in-house prosecution team) for theft, false accounting and/or fraud. This was done on IT evidence alone, without proof of criminal intent. Despite this, some Subpostmasters were successfully persuaded by their own solicitors to plead guilty to false accounting, on being told the Post Office would drop theft charges.

Once the Post Office had a criminal conviction, it would attempt to secure a Proceeds of Crime Act Order against convicted Subpostmasters, allowing it to seize their assets and bankrupt them.

The upshot is what has been described as "likely... one of the most widespread miscarriages in the UK this century" and "a national scandal".  The Criminal Cases Review Commission is investigating 32 Post Office prosecutions. There is also an ongoing High Court class action (covered by this blog), which the 550+ claimant Subpostmasters are (so far) winning.

For more, please have a look at the "Start here" page, which divides the story up into categories and includes links to pieces I have written on aspects of each category.

If you can, please help keep this crowdfunded public-interest journalism project going by chucking a few quid in the tip jar below. Contributors who give £20 or more will start receiving regular "secret" emails which have all the info and gossip about this litigation as it makes its way through the courts. Click here to see how and where your money is being spent.
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Court of Appeal Menu

If either party in Bates and others v Post Office takes issue with aspects of any judgment made during this litigation, they have the option of approaching the Court of Appeal.

So far only the Post Office has attempted to appeal any judgments. The first application to appeal came after the judge, Sir Peter Fraser, refused to recuse himself as managing judge of the litigation. The Court of Appeal refused the application to appeal that judgment.

The second attempt came after Sir Peter refused the Post Office permission to appeal the Common Issues trial judgment.

The application to appeal was filed and immediately rejected by the Court of Appeal on grounds of length. A shortened application was submitted in June 2019. The Court of Appeal is considering that application and is expected to make a decision in autumn 2019.

I have laid out the pieces and relevant documents below.

The Court of Appeal

Recusal judgment appeal application

The Court of Appeal refuses the application to appeal the recusal judgment. Write-up: "Fraser J is going nowhere"
Court of Appeal refusal decision document

Common Issues appeal application

The Court of Appeal rejects the initial application to appeal the Common Issues judgment. Write-up - "Court of Appeal invites Post Office lawyers to have another go"

The Post Office's second application to appeal the Common Issues judgment at the Court of Appeal. Write-up: "Post Office's application to appeal common issues judgment"
Second application grounds of appeal and skeleton argument.
Respondents' Statement of Objection.
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Monday, July 29, 2019

All Roads Lead to Rome: Why the claimants think the Court of Appeal should reject the Post Office's application

RCJ ft Court of Appeal
The litigant Subpostmasters in Bates and others v Post Office have submitted a Statement of Objection to the Court of Appeal, explaining why the judge was right to rule (mostly) in the claimants' favour at the end of the first (common issues) trial and why the application to appeal the judge's findings should be rejected.

As per the Court of Appeal's instructions it is only 10 pages long, so you can read it here if you like, but it would probably help to have a copy of the Post Office's Grounds of Appeal and Skeleton Argument to hand, alongside the common issues trial judgment.

Or you could just read this blog post.

The Statement of Objection pulls no punches from the off, telling their Lordships the Post Office's amended Grounds of Appeal is in many respects similar to the points "rejected by this Court in PO’s [the Post Office's] previous recusal application."

It adds their challenges are made "without regard to the actual basis, in law and fact, of the points appealed", furthermore, the Post Office "overreaches in its criticisms of the Judge and overstates the wider significance of the Judgment, given on the particular facts and contracts in issue."

Getting into the detail

Having set its stall out, the statement becomes a list, succinctly aiming to rebut each of the Post Office's Grounds, either with reference to the relevant case law, or where the respondents think it appropriate, pointing out where they think the Post Office has made a mistake.

eg "Contrary to what PO submits or implies in its Skeleton... the Judge did not fall into error (as PO contends) by holding that “any commercial contract classified as ‘relational’ automatically includes a broad implied good faith term”: he identified the nature of the relationship, which justified both the implication of a good faith term and his conclusion that the contracts are relational. By confining relational contracts to those with such an implied term, he reached a correct conclusion – a clearer and more helpful one – disavowing any general duty of good faith in commercial contracts."

One of the key planks of the Post Office's argument is that the judge, in making his findings on 15 March, has gone rogue, unilaterally re-writing vast tracts of established contract law which could have far-reaching impact on British business. The appeal invites their Lordships to rein in this rogue judge. The respondents play this down:

"The extravagant submission that this finding will undermine contractual certainty has no foundation. The Court stated that it was of no wider application and was made with regard to the “very specific characteristics” that were necessary."

On the tenor of the judgment there's a bit of quickfire stuff in dismissive language:

"The re-heated submission that a good faith term could not be implied given other “powerful implied terms”... was rightly rejected as a technical pleading point (if a point at all)."


"The suggestion that a duty of good faith, fair dealing, transparency, cooperation, and trust and confidence requires only honesty was rejected as inconsistent with the authorities."


"The Judge did not imply a “broad and onerous” term. Rather, he found it required the parties to “refrain from conduct which in the relevant context would be regarded as commercially unacceptable by reasonable and honest people”, recognised as not a demanding standard."

This section concludes: "Ultimately, all roads led to Rome: the Judge reached his view both by his analysis of relational contracts and on previous free-standing contractual orthodoxy. There is no error."

Battle of the Authorities

One of the key themes of the statement of objection is that the Post Office is misrepresenting case law to suggest the judge has got things wrong.

There's a lot of: "Mid Essex Hospital Services NHS Trust v. Compass Group [2013] is not authority for the general proposition contended for by PO: it did not concern powers to suspend, but implication of a term to prevent arbitrary exercise of a power to award service failure points where the basis for doing so was contractually prescribed."


"Fortman Holdings Ltd. v Modem Holdings [2001], on the meaning of “material” in a different clause, contract and commercial context does not assist."

Agent accounts

The Post Office's reliance on the idea that a Branch Trading Statement is/was an account equivalent to a formal statement of settled accounts is an important point and one both sides are still barking at. This is despite a pretty clear ruling from the judge that if there is a whiff of dispute, branch trading statements are not to be treated as settled accounts.

The Post Office has relied on branch trading statements to prosecute Subpostmasters for false accounting. In the past, if a Subpostmaster signed a branch trading statement they knew to be incorrect they were potentially on a one way ticket to ruin, even if they had done it:

a) on Post Office helpline advice
b) whilst disputing its validity
c) in order to keep trading

In the statement of objection, the litigant Subpostmasters say: "the contractual requirement to submit a Branch Trading Statement (“BTS”), by design, forced SPMs to “accept” an ‘account’ (as PO conceded at trial... there was no mechanism for disputing items on Horizon, so the ‘account’ might include disputed items and the BTS could not be regarded as an agreed or settled ‘account’ rendered by the agent."

And so in conclusion...

The statement of objection finishes:

"The appeal has no reasonable prospect of success and there is no other compelling reason for permission to be granted... Neither of PO’s reasons has any merit: the effect on 11,000 branches is not a compelling reason... and the “far-reaching effects on the English law of contract” are obviously overstated."

Their Lordships are aiming to make a decision on whether to allow some, all or none of the Post Office's application to appeal this autumn.

If you can, please help keep this crowdfunded public-interest journalism project going by chucking a few quid in the tip jar below. Contributors who give £20 or more will start receiving regular "secret" emails which have all the info and gossip about this litigation as it makes its way through the courts. Click here to see how and where your money is being spent.
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Speak my language

Throughout this litigation I have usually referred to the claimants in the Bates and others v Post Office High Court group litigation as "claimant Subpostmasters" or "claimants".

Ideally I'd call them the JFSA (Justice for Subpostmasters Alliance - the loose affiliation run by Alan Bates, the man with his name on the claim), but I have been politely and repeatedly reminded by the claimants' lawyers that not all claimants are members of the JFSA and not all JFSA members are claimants.

Even calling the claimants "claimant Subpostmasters" isn't strictly accurate as a small number of claimants are former Crown Post Office employees or branch assistants employed by Subpostmasters.

So the most accurate descriptor for this group is "claimants", but only at the High Court. As far as the Court of Appeal is concerned, the claimant Subpostmasters are "respondents", and very much not claimants.

Even just calling them "Subpostmasters" is problematic because it doesn't differentiate between those (largely former) Subpostmasters who are part of this litigation and those 9,000-odd Subpostmasters who are busy running their branches right now. The latter group are already being affected by the litigation and I find I'm writing about their circumstances more often. Having two distinct cohorts both called "Subpostmasters" doesn't work.

All this matters, as we're now dealing with an Appeal Court process running alongside the High Court litigation and I am going to be writing about as much of it as I can.

For those of you tempted to give up here, you have my sympathy.  For those who wish to soldier on, I might see how calling the claimants/respondents "litigant Subpostmasters" feels, but I suspect I will flip between "respondent Subpostmasters", "claimant Subpostmasters" or just revert to "claimants" depending on the context.

And they wonder why this story isn't gaining traction...
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Court of Appeal: Respondents' Statement of Objection

The respondents' statement of objection was filed on 12 July 2019 in response to the Post Office's application to the Court of Appeal to appeal the common issues judgment, which was handed down on 15 March 2019.

You can read the statement of objection here on scribd or embedded below:
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CMC transcript 23 July 2019

There was a brief Case Management Conference (CMC) on Tuesday 23 July 2019, which mapped out the journey to the third trial in the Bates and others v Post Office litigation.

The third trial, which, in the light of what happened at the CMC will likely be known as the quantum trial, will take place on 2 March 2020.

You can read my summary of what happened in court here, or fill your boots with the (unperfected) transcript below:

                                        Tuesday, 23rd July 2019
   (2.00 pm)
   MR GREEN:  May it please your Lordship, I hope that the
       communication reached your Lordship this morning.
   MR JUSTICE FRASER:  Is that the one from Mr Warwick?
   MR GREEN:  Indeed.  About where parties got to subject of
       course to the court's views.
           Very briefly, having looked at the practicalities
       clearly of dealing with further issue 1 and further
       issue 2 --
   MR JUSTICE FRASER:  Do you mean further issue 2 as amended?
   MR GREEN:  No, the original.  The parties were seeking to
       reach agreement on that quite a long time before we
       proposed the expanded further issue 2.  And his Lordship
       knows further issue 2 was originally:
           "In any case where a claimant's contract's
       termination may be determined to have involved a breach
       of duty by Post Office, what is the correct measure of
           That was on termination only.  And what we have
       proposed which is now agreed in principle by the Post
       Office, subject to your Lordship's views, and approval,
       is that that issue be expanded out effectively so that
       we plead out all the types of breaches and heads of loss
       so that the court can make the same determination of
       what is the head of loss recoverable in principle as
       claimed.  And if so, what's the correct measure of loss
       across all the losses.  Because obviously the loss issue
       affects every single claimant.
   MR JUSTICE FRASER:  When you say across all losses, do you
       mean across all different heads of loss?
   MR GREEN:  Across all different heads of losses, correct.
       So it won't involve any accountancy experts or anything
       like that to value precisely what the loss is, but to
       say this type of loss claimed on this basis, so that
       your Lordship can decide whether or not that type of
       loss is recoverable in principle and, if so, what the
       correct measure of such loss is.  So that we don't just
       have that outcome from the termination point alone, but
       we have it across the piece.
           Not least because that would be much more useful to
       the parties -- even in preparing to deal with that
       issue, that would be much more useful for the parties in
       identifying what the financial value of the claim is,
       which is a matter which the Post Office have been saying
       they are concerned to understand better.
   MR JUSTICE FRASER:  I understand that up to a point.  I am
       looking at paragraph 4 of your -- there's no criticism
       if there isn't one available, but is there a new draft
       order that reflects this morning's agreement?
   MR GREEN:  My Lord, there's our proposed draft which was
       with --
   MR JUSTICE FRASER:  No, I have got all the proposed drafts
       that were lodged originally, but I understood the
       position as of this morning had changed.
   MR GREEN:  There is a draft from my learned friend which
       reflects agreement in principle but differs on timings.
   MR JUSTICE FRASER:  Is that the one that was appended to
       your skeleton?
   MR DRAPER:  It is not, my Lord.  It is as of today.
   MR JUSTICE FRASER:  If you could just hand that up.
   MR DRAPER:  Of course.
   MR JUSTICE FRASER:  Thank you very much.  (Handed)
           So this document is the current state of play as of
       now; is that right?
   MR DRAPER:  This is Post Office's preferred order on the
       basis of the claimants' proposal that we accept, though
       we differ as to the detail of how to implement the
       issue 2 trial.
   MR JUSTICE FRASER:  You are still seeking the stay -- I will
       just explore this for a couple of minutes with you,
       Mr Draper, before I come back to you.
   MR DRAPER:  Yes.
   MR JUSTICE FRASER:  Just give me a moment to look at this
       because originally I think your proposal was rather --
       well, it wanted the stay lifting immediately; is that
   MR DRAPER:  That is right.
   MR JUSTICE FRASER:  Does that remain the case?
   MR DRAPER:  It does in large extent.  I mean, it is sort of
       a matter of --
   MR JUSTICE FRASER:  Or is that just a matter of nuance based
       on the dates?
   MR DRAPER:  Yes, varying or lifting the stay in either order
       is practically the same effect.  It provides at
       paragraph 17 that the stay is lifted to the extent
       provided in this order.  So it effectively follows my
       learned friend's order in that respect.
   MR JUSTICE FRASER:  All right.  Just give me a second and
       I will have a look.
   MR DRAPER:  Of course.  (Pause)
   MR JUSTICE FRASER:  Thank you very much, Mr Draper.  I will
       come back to you on some of the points of detail after
       I have heard Mr Green.
           So you have seen this.
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  In terms of shape and principle going
       forward the parties are agreed subject to my approval
       about the nature of the issues?
   MR GREEN:  Precisely, which are those in the expanded issue
       of what was issue 2.
   MR JUSTICE FRASER:  Well, let's use Mr Draper's draft as
       a sort of benchmark.  This has determining further
       issue 2 in his paragraph 3 in the next trial tranche,
       doesn't it?
   MR GREEN:  My Lord, the parties are basically substantively
       agreed down to the end of paragraph 3 on the two orders.
   MR JUSTICE FRASER:  Well, what's happening to further
       issue 1, then, is this.
   MR GREEN:  My Lord our proposal in relation to that -- this
       is where we differ -- is that your Lordship should
       revisit how we proceed with further issue 1.
   MR JUSTICE FRASER:  When you say revisit --
   MR GREEN:  On 12 September.
   MR JUSTICE FRASER:  But there is two parts to revisiting,
       isn't there?  There is whether in principle it is going
       to be dealt with at all in the next trial and, if so,
       directions in respect of that.
   MR GREEN:  Yes, my Lord, I think the parties are agreed that
       it can't realistically be done in the next trial.
       That's the parties' view.
   MR GREEN:  But what they can do is make progress in parallel
       for that and give directions because at the moment the
       stage 4 disclosure on our proposal is to be given on
       30th August and presently we have got -- if
       your Lordship has our draft order which came with our
   MR JUSTICE FRASER:  I do.  Just give me a second.  I do.
   MR GREEN:  So that is the one that's got the new wording for
       further issue 2 which is agreed in the schedule to it at
       the back.
   MR GREEN:  And your Lordship will see that just comparing
       the two orders, both parties are agreed that the stage 4
       disclosure --
   MR JUSTICE FRASER:  Just give me a second, I'm so sorry.
       I knew it was here somewhere.  Right.  Yes.
   MR GREEN:  So paragraph 1, the parties are making the
       identical proposal for stage 4 disclosure by
       30th August 2019.
   MR GREEN:  And then the same for paragraph 2, and the only
       difference I think is the wording "pending further
       order" in paragraph 3 --
   MR JUSTICE FRASER:  They are just minor.
   MR GREEN:  Exactly.  Basically agreed 1 to 3, and then the
       only differences which immediately emerge are simply
       differences of date.
   MR JUSTICE FRASER:  I don't want to get into that yet.  At
       the moment I'm just looking at the point in principle.
       Well, really, that there's two points in principle and
       they each come at the opposite end of the time period in
       question.  The first is further issue 1.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  The second is what happens in the
       immediate term?
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  You are both saying further issue 1
       shouldn't be dealt with, are you?
   MR GREEN:  Not in March, but the difference between us is we
       have invited the court to keep the CMC on 18th September
       in at our paragraph 6 and --
   MR JUSTICE FRASER:  That's in order to do what?
   MR GREEN:  To take stock of the position that we are in as
       at that point because the parties have been agreed, and
       I think we may be again, that it is efficient and
       proportionate for any pleadings and issue-based
       disclosure, on the basis of the pleadings, for issue 1
       to take place in the light of the outcome of the Horizon
       issues trial/judgment.
           Your Lordship will be better placed to anticipate
       when that might become available on 12th March than
       perhaps now.
   MR JUSTICE FRASER:  You don't mean 12th March.
   MR GREEN:  I'm so sorry, 12th September.
   MR JUSTICE FRASER:  I do not think you mean the 12th either,
       do you?
   MR GREEN:  I mean 18th September.  I do apologise.
   MR JUSTICE FRASER:  At some indeterminate time in the
   MR GREEN:  At the CMC, if I can say that.
           But, my Lord, what's envisaged from our perspective
       is that there effectively be three strands of progress.
       First, effectively, a free-standing and resilient course
       of directions leading to March where we can determine
       all of the further issue 2 as expanded points, which is
       not dependent on any of the difficulties we would
       encounter on issue 1, including any interrelationship
       with the common issues judgment appeal.
           So that's absolutely resilient and won't be
       derailed, and it is going to be on assumed facts, so
       there won't be any problems with disagreements about
       disclosure upsetting the timetable.
   MR JUSTICE FRASER:  Let's get into the detail in
       a little bit.
           You mentioned three work streams.  One is further
       issue 2, one is further issue 1, which your proposal
       I think is revisit that on 18th September and keep
       an open mind.
   MR GREEN:  Precisely.  And keep an open mind, precisely.
   MR JUSTICE FRASER:  But don't make any substantive
       directions in respect of the period between now and
       18th September.
   MR GREEN:  Except that the parties agreed that stage 4 is
       going to be given on 30th August.
   MR JUSTICE FRASER:  And what is the third stream?
   MR GREEN:  And the third stream is the mediation stream
       which is happening in parallel.
   MR JUSTICE FRASER:  But that doesn't concern me at all,
       does it?
   MR GREEN:  It doesn't concern your Lordship save that
       your Lordship is fully informed that that is happening
       in parallel.
   MR JUSTICE FRASER:  That is fine, and obviously I will take
       that into account when I'm considering directions.  But
       so far as, as you put it, workstreams, that's
       a workstream for the parties, but it doesn't involve --
   MR GREEN:  But not for the court.
   MR JUSTICE FRASER:  -- the court at all.  But obviously
       I should be aware of it and you have both told me
       various things about it, both earlier in July and now.
           Right, so in outline terms then your framework is
       substantive directions in respect of expanded further
       issue 2 leading to a trial in March and do that now?
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  Come back in September, when everybody
       has got a better idea of how much of the judgment has
       been written and how long it is going to be, and address
       substantive directions for further issue 1 then.
   MR GREEN:  And/or consider how to address it, just keeping
       an open mind.
   MR JUSTICE FRASER:  In other words, don't nail one's colours
       to the mast now in respect of further issue 1 in
       March 20, one way or the other, revisit it in September?
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  The other is take account of the
       parties' agreed position and the fact that there is
       a mediation likely to take place at some point later
       this year.  Is that it?
   MR GREEN:  That is the three points.
   MR JUSTICE FRASER:  I'm going to hear Mr Draper on this
       first and then I will come back to you.
           Yes, Mr Draper.
   MR DRAPER:  It is perhaps best to start with the September
       proposal for a September CMC, my Lord.
   MR JUSTICE FRASER:  I think there is one in already, isn't
   MR GREEN:  There is.  My learned friend's suggestion is that
       it be retained for the purposes that he has just
           If you look, my Lord, at paragraph 7 of our draft
       order, this is what Post Office proposes instead, which
       is that there be a CMC but somewhat later than
       September.  The reason for that is so that the CMC can
       come after the pleadings which your Lordship will have
       seen at paragraph 4 of the order.  And the principal
       reason for that is so that the parties can, with the
       benefit of those pleadings, look to review and refine
       the issues for trial as was envisaged under the seventh
       CMC order.
   MR JUSTICE FRASER:  When you say for trial?
   MR DRAPER:  March 2020.
   MR JUSTICE FRASER:  But if that's only done in January 2020
       that doesn't leave very long, does it?
   MR DRAPER:  I'm looking at Post Office's order, my Lord.
       For December.
   MR JUSTICE FRASER:  I do beg your pardon.  So your
       paragraph 7.  4th December, yes, you are right.  I was
       looking at the wrong one.
   MR DRAPER:  That would then come exactly a month after the
       close of pleadings on the measure of loss issue.
   MR DRAPER:  Paragraph 7.1 there, in slightly shorter
       language, effectively reflects what was in the seventh
       CMC order about reviewing and refining the issues having
       had the benefit of the pleadings.  So that can usefully
       be done after pleadings, can't realistically be done
           Having the CMC later would be more likely to have
       the benefit that my learned friend explained about us
       knowing where we are with your Lordship's judgment.
       I mean, we are --
   MR JUSTICE FRASER:  You will definitely have it by December.
   MR DRAPER:  Precisely.  He raised a question about what
       would happen in terms of permission from the
       Court of Appeal.  We would likely know that as well by
   MR JUSTICE FRASER:  I'm not sure about that because that is
       out of my hands.
   MR DRAPER:  Of course.  It is certainly more likely at least
       than 18th December.
   MR JUSTICE FRASER:  On the 18th.  But I thought you said it
       was taking place on the 4th.  Your proposal is
       4th December.
   MR DRAPER:  4th December, yes, I'm sorry.
   MR JUSTICE FRASER:  Sorry, you mean permission to appeal on
       the common issues?
   MR DRAPER:  Yes.  That would be more likely to know that by
       4th December than 18th September.
   MR JUSTICE FRASER:  What's the current state of play about
       that?  All I know about it is what the parties have told
       me in today's skeletons, but I think, the
       Court of Appeal orders having been uploaded a few days
       ago, I have seen them.  That's currently with whichever
       Lord Justice it is and the parties are just waiting for
       a decision on whether there is an oral hearing or
       whether permission is granted, or is --
   MR DRAPER:  Both of those.
   MR JUSTICE FRASER:  Both or either.
   MR DRAPER:  Yes.
   MR GREEN:  My Lord, I think there was an indication from
       Lord Justice Coulson that the Court of Appeal might
       prefer to decide it having seen the Horizon issues
   MR JUSTICE FRASER:  Understood.  Right.
   MR GREEN:  So there may be a --
   MR JUSTICE FRASER:  Understood, all right.
           But whatever it is, that's likely to be the autumn.
       So you want to know that outcome before a CMC is held
       for the third trial; is that right?
   MR DRAPER:  It is by no means determinative.  The first
       point I made, my Lord, is the strongest one, the one we
       actually principally rely on, which is we need it to be
       after the pleadings to serve the purpose of refining the
       issues.  I mention that advantage, if you like, as
       a side effect benefit.
   MR JUSTICE FRASER:  But when you say in your 7.1 "agreeing
       the list of issues to be determined at trial", do you
       mean issues other than expanded further issue 2?
   MR DRAPER:  No.  It would have been better, my Lord, for it
       to have been drafted using similar language to that in
       the seventh CMC order, so to say that to review and
       revise and refine the issues for trial as already
   MR JUSTICE FRASER:  In other words, including further
       issue 2?
   MR DRAPER:  It would only be further issue 2.
   MR JUSTICE FRASER:  Oh, the expansion of --
   MR DRAPER:  Exactly.
   MR JUSTICE FRASER:  In other words, any tweaking to
       expansion issue 2.
   MR DRAPER:  Precisely.
   MR JUSTICE FRASER:  Not whether it brings in further issue 1
       or not.
   MR DRAPER:  No.
   MR JUSTICE FRASER:  The Post Office position is: whatever
       else happens, don't proceed with further issue 1 in the
       third trial.  Is that right?
   MR DRAPER:  Yes, my Lord.
   MR JUSTICE FRASER:  And, Mr Green, your position is,
       claimants' position is: leave that matter undecided as
       at today and revisit it in September?  Is that right?
   MR GREEN:  My Lord, no, our position is also not in March,
       but revisit the progress we made to how we approach
       resolving it in September, because there will be -- if
       your Lordship, for example, were to list a trial in
       June --
   MR GREEN:  Of 20, to resolve further issue 1, we would have
       plenty of time -- and anything else we decide -- between
       September and June 20 to ensure that all the steps for
       that could be taken without too much worry about -- or
       possibly early July.  That would definitely be likely to
       come after the resolution by the Court of Appeal of any
       issues upon which they were to grant permission, for
   MR JUSTICE FRASER:  This is your footnote 1 in your
   MR GREEN:  Effectively.
   MR JUSTICE FRASER:  Basically, unless and until that's
       decided it is not sensible to embark on further issue 1.
   MR GREEN:  It isn't, because we would have to completely
       redo our pleading if there was a change.
   MR JUSTICE FRASER:  If both the parties are effectively
       agreed, although for different reasons and in different
       ways, the March 20 trial won't or shouldn't include
       further issue 1, even if that position has been reached
       by different routes of reasoning by each of you, well,
       then I'm simply faced with a choice: I either railroad
       you to do further issue 1 with the risk of huge amounts
       of wasted work on the parties' point of view, or I grasp
       the nettle now.  But that needn't be put off until
       18th September, it seems.
   MR GREEN:  My Lord, no.  We are asking you to order that
       further issue 1 not be tried in March and the only thing
       that is tried in March is the expanded version of
       further issue 2, which obviously takes in a lot more
       into than we originally had in mind.  But definitely not
       to do issue 1 in March.  And parties are agreed about
       that, subject to your Lordship's approval.
   MR JUSTICE FRASER:  Okay.  So that's Mr Draper and your
       paragraph 3, subject to slightly tweaked wording about
       pending further orders?
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  I just think paragraph 3 needs to be
       clear that the trial of further issue 1 will not take
       place in March.
   MR GREEN:  We will make that absolutely clear.
   MR JUSTICE FRASER:  That is to be done parenthetically.  It
       is not an enormous --
   MR GREEN:  No, of course.
   MR JUSTICE FRASER:  I just hadn't appreciated that.  All
       right, in principle that's further issue 1 done and
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  So the next point is the one Mr Draper
       was addressing me on before I got sidetracked onto your
       position on further issue 1, which is should there be
       a CMC on 18th September or should it be on 4th December?
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  You want to keep 18th September, and the
       Post Office suggests it is only sensible if there are
       pleadings and they won't be available on 18th September.
       I will go back to Mr Draper on that point.
   MR GREEN:  My Lord, we are not insisting on the September
       CMC, but we did think it might be helpful to keep
       an open mind about what the likely timescales are and
       what planning could be done, have a moment earlier
       rather than later when there's the opportunity to
       consider that.
           The court and the parties may take the view it is
       not necessary when we get to September, but we thought
       that your Lordship might be in a position to say: I'm
       intending to hand down the judgment on 30th September or
       4th December, or have some view about it, which might
       enable the parties to usefully use a short hour CMC to
       consider what might be done.  But we are not wedded to
       that 18th September date.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  And that definitely happening.
   MR JUSTICE FRASER:  You are relatively neutral.
   MR GREEN:  We are pretty sanguine about it.
   MR JUSTICE FRASER:  But you can see the benefits in it?
   MR GREEN:  We can see the benefits.
   MR JUSTICE FRASER:  You can sit down, then, and I will ask
       Mr Draper to explain to me why it is better to have it
       in December rather than September.
           Mr Draper, you were in the middle of doing that when
       I interrupted to ask Mr Green various questions.  So
       fire away.
   MR DRAPER:  The logic of December and the basis on which it
       is our proposal, my Lord, is that it allows it to come
       one month after close of pleadings.  So it puts us in
       the position of being able to look at where we have got
       to on the pleadings, refine the issues, as I suggested,
       we could actually improve the wording of the order to
       make that clear.
           It would also enable us to take steps, for example,
       to see whether in light of where we have got to on the
       pleadings adjustment needs to be made to any of the
       further directions for the March 2020 trial.
           An obvious example, my Lord, is that we are agreed
       that at the moment it would be prudent to keep
       a relatively substantial listing for March 2020, bearing
       in mind the expansion of further issue 2, measure of
       loss.  But it may be that the pleadings disclose a good
       measure of common ground on these points, at which time
       it may be appropriate to shorten the listing.
   MR JUSTICE FRASER:  It is currently four weeks, just remind
   MR DRAPER:  It is currently four weeks.  I think my learned
       friend proposes that it be shortened somewhat to three.
       In my submission, at this stage that's out of caution as
       to how much time might be required.  It may be that
       there is on the pleadings more common ground than would
       otherwise be anticipated.
           Post Office isn't in a position to say because we
       essentially don't know what the claimants' case is on
       measure of loss and the particular heads.
   MR JUSTICE FRASER:  Well.  All right.
           I mean, in a way that is a minor detail whether
       I leave it at four or three at the moment.  It can
       easily be changed nearer the time.
   MR DRAPER:  I agree, my Lord.
   MR JUSTICE FRASER:  But you are saying if I look at your 4.1
       to 4.3, let that process happen.
   MR DRAPER:  Yes.
   MR JUSTICE FRASER:  Then a month after replies, have the CMC
       then.  I mean, in a way at that stage it is half CMC,
       half pre-trial review really, isn't it?
   MR DRAPER:  My Lord, yes.
   MR JUSTICE FRASER:  Not that that's a problem.
   MR DRAPER:  I ought also to have said -- forgive me -- it
       means we can usefully have had the step at stage 5 done
       before the CMC and your Lordship would be in a position
       then, at that CMC, to resolve any problems that we
       encounter between us on agreed and assumed facts.
   MR JUSTICE FRASER:  Well, the problem about that, I can see
       because that's further down in your 7.2 as well, if you
       can't agree facts, I can't impose agreement on either of
       you.  Do you mean on the wording of assumed facts?
   MR DRAPER:  The kind of thing I'm imagining is that the
       pleadings disclosed are somewhat ships in the night and
       we need help to be forced into the sort of proper scope
       of the assumed facts, what the courts need to have in
       order to reach its determinations.
   MR GREEN:  My Lord, what we had envisaged is --
   MR JUSTICE FRASER:  As one knows in this case what one
       envisages does not normally come to pass.
   MR GREEN:  What we would submit is appropriate and may work
       and be efficient is for the defendant not to have to
       contest the facts asserted by the claimants.  So
       Mr Bates says "I made this investment, etc, got this
       head of loss", so forth.  And for those heads of loss to
       be determined on the assumption that those facts alleged
       are true, which the defendant doesn't accept for
       a minute.
   MR JUSTICE FRASER:  In other words, assumed facts.
   MR GREEN:  Exactly.  Assumed rather than agreed.
   MR JUSTICE FRASER:  They are either agreed facts or assumed
   MR GREEN:  Precisely, they are agreed.
   MR JUSTICE FRASER:  You don't assume an agreed fact.
   MR GREEN:  Exactly.  So the facts are assumed on the footing
       that the claimants put them forward, and the check on
       the claimants, the control, effectively, on the
       claimants is that to get the best outcome the claimants
       want to make the facts they assert as close to what will
       be likely to be proved for them, because that's the most
       useful judgment they will get from the court.
   MR JUSTICE FRASER:  Yes, go on.
   MR GREEN:  And from the defendant's side, they are not
       agreeing that those facts are correct.  They are just on
       the footing that someone did invest on this footing,
       they did it in this way, this was the basis on which
       they would terminate, and so forth.
   MR JUSTICE FRASER:  But in terms of -- I mean, this is
       a subject I was going to raise at some point later when
       we had dealt with this, but I may as well raise it now,
       and it goes to, effectively, the expansion of further
       issue 2: further issue 2 refers to heads of loss and
       their recoverability in principle.  I know it is
       difficult to do this by reference to a pleading because
       this hasn't been pleaded out yet, but what types of
       heads of loss?  Give me an example.
   MR GREEN:  So, for example, repayment of shortfalls whilst
       still an SPM, wrongfully.  Damages for harassment, for
   MR JUSTICE FRASER:  Repayment of shortfalls, understood.
       I mean, that is effectively a contractual issue.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  Damages for harassment, that's
       a tortious cause of action.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  Which requires duty, breach etc.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  And none of the judgments that are in
       play already have remotely touched on it.
   MR GREEN:  Absolutely not, but all it would be is a pure
       question of law on the Ferguson v British Gas basis of
       whether or not, in these circumstances, such damages are
   MR JUSTICE FRASER:  In principle on assumed facts.
   MR GREEN:  In principle on assumed facts.  So your Lordship
       is not being invited into any territory that is
       difficult in that respect.
   MR JUSTICE FRASER:  It is not that the territory is
       difficult, it is what we do in the building.
   MR GREEN:  Of course.
   MR JUSTICE FRASER:  It is a question of utility for the
       group litigation.
   MR GREEN:  Yes, but my Lord --
   MR JUSTICE FRASER:  All right, so that is an example.
   MR GREEN:  That is an example.
   MR JUSTICE FRASER:  That would have to be on assumed facts.
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  So it is basically legal findings on
       assumed facts.
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  All right, give me another example.
       This is not to hold you to any of this, it is just for
       the purposes of my understanding.
   MR GREEN:  Shortfalls is one, harassment is one.
   MR JUSTICE FRASER:  We have dealt with those.
   MR GREEN:  Consequences of failure to investigate.  What's
       the right measure of loss in circumstances where there
       is a failure to investigate on assumed facts?
   MR GREEN:  Breach of the implied duty of good faith on the
       relational contract footing.  And that's something that
       doubtless the Post Office will say is novel, and so
   MR GREEN:  Breach of other implied terms which have
       particular bite on what happens --
   MR JUSTICE FRASER:  But they are contractual though, aren't
   MR GREEN:  They are contractual, yes.  So there is a mixture
       of contractual and tortious.  I mean, harassment is
       really probably the only tortious one slightly to arise
       as we see it.  The others will be contractual.
   MR JUSTICE FRASER:  Understood.
   MR GREEN:  It is the approach to those.
   MR JUSTICE FRASER:  All right.  That gives me an idea
       because all that the documents -- I'm not being
       critical -- submitted for today refer to head of loss,
       and it wasn't necessarily clear to me what heads of loss
       one was necessarily contemplating.  Because some of the
       heads that were referred to in the generic particulars
       of claim were effectively dismissed by some of the
       findings in the common issues.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  When I found certain restricted duties
       under the contract.
   MR GREEN:  Of course.
   MR JUSTICE FRASER:  All right.  But damages for harassment
       is the tortious one and you can't necessarily --
   MR GREEN:  Yes, and there's also damages for deceit, which
       is capable of sounding in tort, obviously.
   MR JUSTICE FRASER:  Well, that is --
   MR GREEN:  It is tortious.
   MR JUSTICE FRASER:  All right, okay.  I have got your
       position on September.  But what do you say to what
       Mr Draper sort of points out by reference to his
       timetable in paragraphs 4 and 5, which is that December
       is a good time because it comes sequentially after his
       4.3 and paragraph 5?
   MR GREEN:  My Lord, because of the fact, the difference
       between us, the perhaps misunderstanding on the
       difference between agreed and assumed facts, what we
       have proposed --
   MR JUSTICE FRASER:  Misunderstanding between you two, not
       misunderstanding --
   MR GREEN:  No, not your Lordship.  But I think we were
       approaching that slightly differently.  But I'm very
       clear that we are talking about assumed facts, and
       therefore the timing that we have proposed in our
       paragraph 4, for pleadings, which is 25th October 2019,
       25th November 2019 and 9th December, to the extent that
       there is a need to agree what the assumed facts are at
       all, that for us is a bit of a footnote given our
       approach to what assumed facts are.  Paragraph 5 may not
       even be necessary at all, but to the extent it is, to be
       done by 20th December.
           So because of that difference between us we have got
       at later timetable for the pleadings.  I can tell
       your Lordship --
   MR JUSTICE FRASER:  You are only about a month apart.
   MR GREEN:  Exactly.  I have personally got, as far as
       I know, a unique difficulty leading up to 7th, 8th and
       9th October, which is I have got a part heard case which
       is part heard in the Supreme Court for which all five
       judges have reordered the listings of all other appeals
       and for which the underlying order has evaporated and
       the parties have within tasked with, after the European
       Commission tells us what they are doing at the beginning
       of September --
   MR JUSTICE FRASER:  All you have to tell me is it is
       a commitment in the Supreme Court.  But before I came in
       today it seemed as if, rather traditionally in this
       case, everyone was at daggers drawn and they don't seem
       to be quite as much at daggers drawn.
   MR GREEN:  They are not.
   MR JUSTICE FRASER:  Because I know that one party wanted the
       stay lifting instantly today and everyone to be forced
       straight back to the grindstone.
   MR GREEN:  Consensus has largely broken out.
   MR JUSTICE FRASER:  The consensus is to be encouraged.  So
       it seems therefore to me that you are both agreed
       there's going to have to be another hearing -- well,
       I would order one anyway -- another CMC in respect of
       further issue 2 at some point in order that the assumed
       facts upon which expanded further issue 2 is to be dealt
       with are i's dotted and t's crossed basically if you
       can't agree them.
           Now, that can't be done in September.
   MR GREEN:  No, we made provision for that on 14th January in
       our paragraph 8.
   MR JUSTICE FRASER:  Right.  Given that we are starting that
       trial on, I think, 2nd March, 14th January is too late.
   MR GREEN:  That date was sort of CMC/PTR, but on the basis
       of our understanding of what assumed facts would be
       there really is going to be minute scope for --
   MR JUSTICE FRASER:  If that's right, I'm not saying that
       that's overly optimistic, obviously it would be very
       good if that were the case.  But if it is not the case
       you need to know before 14th January, don't you?
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  Because that's about six weeks before
       the trial starts.
   MR GREEN:  It is.  The parties will have a pretty clear view
       after 25th November on our timetable because we will
       have the defendant's individual defences.
   MR JUSTICE FRASER:  It sounds to me as if Mr Draper's
       position of -- I'm looking where it is -- but I think it
       was 4th December, we should definitely have
       a 4th December CMC.
   MR GREEN:  My Lord, one option is to have a December CMC but
       just after the date for replies, if that were --
   MR JUSTICE FRASER:  Well, just after the date for replies
       wouldn't be in December, would it, because -- I see you
       are going off your pleading.
   MR GREEN:  Off our one, 9th December, if we had it on the
       12th.  We will know the shape of the difference of views
       from the -- there's not going to be that much in the
       reply as well.  If we serve one.
   MR JUSTICE FRASER:  Well, replies is if so advised anyway.
       You don't necessarily need --
   MR GREEN:  Exactly.  We would be perfectly content with
       4th December if that were more convenient for the court.
   MR JUSTICE FRASER:  It is not convenient for the court.
       Well, I mean, it is not being fixed by convenience to
       the court.
   MR GREEN:  No, of course.
   MR JUSTICE FRASER:  There are two reasons.  One is it gives
       enough time for everyone this side of Christmas, because
       however many sophisticated advisers each party has,
       productivity and efficiency tends to dip off in
       mid-December for obvious reasons.
           In a case of this size I think 4th December is about
       as close as one would sensibly want to put it.
   MR GREEN:  I'm grateful.
   MR JUSTICE FRASER:  We are going to come onto in a moment
       what's going to happen at that CMC, but Mr Draper's date
       of the 4th seems sensible.
           The only issue then in terms of dates is whether it
       is necessary and/or worth it and/or likely to be
       productive to have another hearing prior to
       4th December, whether it is September or whenever, to
       deal with anything else in terms of the group litigation
           Now, I imagine you are broadly neutral about that.
   MR GREEN:  My Lord, we are.
   MR JUSTICE FRASER:  I will hear from Mr Draper then.
           Mr Draper.
   MR DRAPER:  Same position, my Lord.
   MR JUSTICE FRASER:  You are broadly neutral.
   MR DRAPER:  Nothing very interesting to say.
   MR JUSTICE FRASER:  Then this brings me to my main headline
       point to ask each of you, and I will ask Mr Green first.
       I said it late July and I also said it in judgment
       number 5: at some point cost management is going to have
       to be grappled with.
   MR GREEN:  We provided for that in paragraph 10 of our draft
       order.  So a CCMC just on cost management to be listed
       after 25th October because that date gives the parties
       the proper run-up to a CCMC after everyone gets back
       from the long vacation.
   MR JUSTICE FRASER:  Where are we?
   MR GREEN:  That's our paragraph 10, my Lord.  Under the
       heading "Costs and costs management".
   MR JUSTICE FRASER:  Now, the costs consent order of
       April 2018, can we call that up on the screen, please?
   MR GREEN:  Yes.  It may be in the common issues workspace,
       my Lord.
           My learned friend Mr Warwick is a bit of an expert
       on this so I will let him tell me where it is.
   MR JUSTICE FRASER:  Until we get to Mr Warwick finding where
       it is, if it is on there, your proposal is CCMC prior to
       4th December, some time late October onwards, to review
       the cost budgets?
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  But at the moment I do not think --
       I can't remember, and Mr Draper or Mr Warwick will
       remind me, don't cost budgets only go up to -- no, it is
       only the order goes in respect of common issues and
       Horizon issues.
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  I haven't made any orders in respect
       of --
   MR GREEN:  It is that next phase which the parties will be
       quite well-informed about.
   MR JUSTICE FRASER:  That phase being for expanded further
       issue 2.
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  All right.  So you say that should be
       late October?
   MR GREEN:  And the parties will be well placed to see --
   MR JUSTICE FRASER:  In other words, further cost management
       orders in respect of further issue 2, etc?
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  I will hear from Mr Draper.
           Right Mr Draper.  Forgive me for not being able to
       go immediately to your draft order where that's dealt
       with but do you agree that there has to be a hearing of
       that nature?
   MR DRAPER:  We agree that there has to be cost management.
       We had it in our draft order, my Lord, at paragraph 7 as
       forming part of the CMC on 4th December.
           If you turn my Lord --
   MR JUSTICE FRASER:  I have got that --
   MR DRAPER:  -- to the next page at paragraphs 12 to 14,
       those are the directions made in respect of that element
       of the CMC.
   MR JUSTICE FRASER:  But you will have incurred probably six
       or seven weeks' worth of relatively heavy costs, won't
       you, before you get to a costs management order?
   MR DRAPER:  That is right, my Lord.  There is a balance to
       be struck between knowledge of the costs and doing it so
       late that many of them will have been incurred.  So for
       that reason we don't propose separating out the cost
       management element and having it earlier, we see the
       sense in that.
   MR JUSTICE FRASER:  All right.  Well, I think that's what
       I'm going to do.  This date which I'm going to give you
       is just subject to checking when I go back to my desk
       because I don't have the full court electronic diary in
       court, but I have a pretty good idea.
           Now, Mr Green, you have said the first date after
       the 25th?
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  Because of other things that are likely
       to be happening in society generally at the end of
       October, or may be happening, I would like to -- I think
       22nd or 23rd October is a better date.
   MR GREEN:  Very good.
   MR JUSTICE FRASER:  Mr Draper, any observations on that?
   MR DRAPER:  No, my Lord.
   MR JUSTICE FRASER:  That will be for half a day.  You will
       get an email from my clerk within 30 minutes of this
       finishing just to tell you which date to put in the
       order, and that will be for the cost budgeting.
           Is there much between you on what needs to be done
       in terms of preliminary steps?  I don't think so.
   MR GREEN:  No, it is the same as before, following the same
       phase-based approach.
   MR JUSTICE FRASER:  If, therefore, we are going to have
       a hearing on 22nd or 23rd October and we're going to
       have a hearing on 4th December, it seems to me it would
       be better to put all the parties out of their misery so
       far as September is concerned because any information I
       can pass on at that hearing you can get in an email.
   MR GREEN:  Quite.
   MR JUSTICE FRASER:  And neither of you will be asking me for
       anything, I don't think.
   MR GREEN:  No.
   MR JUSTICE FRASER:  So I will vacate that CMC as well in
       this order, please.
           So then it is just, I think -- you are both agreed
       that you are going to do your stage 4 disclosure of
       further issues by 30th August.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  It is really just timetabling for
       pleadings, isn't it?
   MR GREEN:  That's it.
   MR JUSTICE FRASER:  All right.  Why don't you sit down.
       I will hear from Mr Draper, then I'll hear from you.
           Right, Mr Draper.  Timetabling for pleadings.
   MR DRAPER:  Yes, my Lord.  You will have seen from the sort
       of tenor of the submissions in relation to the original
       argument over a trial of further issues 1 and 2 that
       there was a lot of concern on this side of the court
       about putting off the pleadings to very late in the day,
       until October effectively.
           Those concerns are, my Lord, somewhat less acute if
       we are only having further issue 2.  And that's because
       it is simply less -- vastly less fact heavy, so there is
       not a concern about vast amounts of disclosure on
       witness evidence.  Nonetheless, there is no good reason
       to put it off for three months until, on my learned
       friend's suggestion, end of October before they plead in
       relation to the expanded further issue 2.
           It will have been apparent from some of the
       discussion that we are at a very early stage in
       understanding precisely what expanded further issue 2 is
       going to involve.  We will be much better informed when
       we get the claimants' pleading, and in my respectful
       submission, my Lord, this really ought not to be
       a question of why it has to be brought forward into
       September, but why it should wait until October.
           This litigation is a tight ship, my Lord, and
       putting us into stasis for two or three months is not
       the kind of litigation culture we have had thus far, and
       there is no good reason to depart from the court's
       practice in that regard.
   MR JUSTICE FRASER:  All right.  But you say that it should
       be done by the end of September or late September?
   MR DRAPER:  20th September, my Lord, is the date in the
       draft order.
   MR GREEN:  My Lord, it is going to put me in acute
       difficulties that I have already mentioned.
   MR JUSTICE FRASER:  You are in the Supreme Court, you have
       already told me that.  But so far as the litigation is
       concerned, the group litigation, generally.
   MR GREEN:  Well, the litigation has proceeded at pace,
       subject to being derailed, which was not the court's
       fault at all, but we respectfully say for the listing
       that has been made, there's really no good reason to put
       the claimants into difficulties when the dates that we
       have proposed are achievable and sensible.
   MR JUSTICE FRASER:  Well, the only date by which -- well,
       there are two dates now, aren't there, or two interim
       dates against which the court should work the procedural
       timetable?  One is the costs CCMC on 22nd/23rd October.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  That's not going to be affected by the
       pleadings at all.
   MR GREEN:  No.
   MR JUSTICE FRASER:  The other is the hearing on
       4th December.
   MR GREEN:  And on our timetable the defence would already
       have come in on 25th November so the parties would
       already have had pretty much the 11 days we had in
       mind --
   MR JUSTICE FRASER:  You are both expecting a month for the
       defendant to respond to the individual particulars of
   MR GREEN:  Yes, and we think that is quite generous but
       perfectly fair.
   MR JUSTICE FRASER:  Well, I mean, Mr Draper is suggesting
       a month anyway so I doubt he wants shorter than a month.
       And I think you have got 14 days for replies and so
       does he.
   MR GREEN:  If so advised, yes.  There is no difference.
   MR JUSTICE FRASER:  Really the only difference is
       20th September on the one hand and 25th October on the
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  Is there anything you would like to add,
       Mr Draper, about that?
   MR DRAPER:  Just this, my Lord.  That the closer one pushes
       the pleading process particularly into October, one then
       has the individual defences on my learned friend's
       directions in November, we are then almost straight into
       the December CMC.  That's in circumstances, my Lord,
       where the logic of the December CMC is that one has had
       the pleadings, including the replies, and has had the
       process in paragraph 5 of my draft order, my Lord, of
       seeking to agree the assumed facts coming out of those
           There is, my Lord, a short point on that, which is
       my learned friend is right to say that the assumed facts
       will be those contended by the claimants and assumed for
       the purposes of the trial.  But one can well imagine
       pleading disputes about how those facts are put and in
       particular the level of generality.
   MR JUSTICE FRASER:  I do hope not.
   MR DRAPER:  Perhaps I could take --
   MR JUSTICE FRASER:  Give me an example.
   MR DRAPER:  To take the harassment example, my Lord, that my
       learned friend mentions.  The question over harassment
       will essentially be whether the acts pleaded are
       sufficient to amount to harassment.
   MR DRAPER:  There is, unlike most of the other issues on
       loss, some pleading on this, and Post Office has
       essentially said the acts that you complain of are by
       their nature not harassment.  They are ordinary
       commercial interactions.
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  They are the ordinary pursuit of commercial
       debts, for example.  So the claimants will have to
       identify, in my submission, something about the conduct
       that by type puts it over the line into harassment.
   MR JUSTICE FRASER:  In order to succeed?
   MR DRAPER:  Yes.  And in order to disclose a sufficiently
       clear legal point that it can be resolved in a useful
       way for the group.  If, for example, they just plead
       a number of acts and don't say what it is about those
       acts that makes them capable of amounting to harassment,
       Post Office can sensibly respond by saying: that isn't
       harassment.  But more worryingly, in terms of utility of
       this trial, it doesn't help us distinguish between
       conduct amounting to harassment and conduct not
       amounting to harassment.
   MR JUSTICE FRASER:  I entirely understand that, but for
       example, and this is just a purely hypothetical exchange
       without having looked at the pleadings on this point at
       all, following on just from what Mr Green said, if, for
       example, it consists of letters that have been sent
       which the Post Office sends in the ordinary course of
       business "Dear Mr X or Mrs Y, you owe us sums," whatever
       it is, and the Post Office, as you say, pleaded that
       those are normal commercial acts, if that's as far as it
       goes and they are normal commercial acts and one applies
       the law in the conventional way, isn't the answer rather
       obvious, what the answer to that part of further issue 2
       is going to be in respect of that claimant?
   MR DRAPER:  Yes.  So, say one -- I think there are probably
       two different hypotheses.  One is that in pleading the
       lead claims the claimants draw out points of principle
       about the nature of the conduct.  Taking your Lordship's
       example of a letter, it would be that letters of this
       kind, however one defines "of this kind" --
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  -- are capable of amounting to harassment.
           So the kind of dispute that I imagine may arise, and
       I hope it doesn't, is whether the claimants have pleaded
       their case in such a way that enables one to identify
       those kind of points of principle.
   MR JUSTICE FRASER:  Understood.  And they will have to do
       that in their individual Points of Claim, won't they?
       Because if they don't, they certainly -- well, I'm not
       saying certainly, because that would suggest I have
       prejudged something, but they would have difficulties in
       adding those by way of reply, wouldn't they, as
       substantive ingredients of the cause of action if they
       weren't in their particulars of claim?  So you will know
       that when you get the particulars of claim, won't you?
   MR DRAPER:  Yes, my Lord, but the process of paragraph 5 of
       trying to agree the assumed facts and, indeed, any sort
       of squabbling one has over the pleadings before that,
       all of this leading into the CMC, the purpose of that is
       to make sure that the issues are defined with sufficient
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  Sufficient generality/sufficient particularity,
       striking the right balance, that resolving them would be
       of utility to the group.
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  We need a clear mechanism to funnel the parties
       towards agreement or have the court resolve any issues
       of that kind.
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  That's why, in my submission, we have to have
       time for the full pleading process and the process in
       paragraph 5 to be complete before the CMC.
   MR JUSTICE FRASER:  I understand.  But you agree with me,
       I think, because it is fairly conventional that
       ingredients of the causes of action will have to be
       pleaded by them in their particulars of claim, won't
   MR DRAPER:  My Lord, yes.
   MR JUSTICE FRASER:  Thank you very much.
           This is what I'm going to do.  I'm going to adopt
       the timetable suggested by the Claimant for their
       pleadings in paragraph 4, but I'm going to add a further
       CMC, which if it is not needed it can be just be
       vacated, which is going to be on a date which will be
       notified to you, again, within 30 minutes, but it will
       be much earlier in November, which is going to be put in
       there to deal with any difficulties that the Post Office
       envisage, or the Post Office can identify on the face of
       your pleadings before they plead their defence so that
       if those sorts of problems are obvious on the face of
       your pleadings, Mr Draper can address it with me then.
       If necessary you will be ordered to do something else or
       he will be given more time.
           All right?  How you weave that into the order in
       terms of direct wording I will leave to the three of you
       because you're sensible enough to achieve it without
       difficulty, I'm sure.  And that's another date you are
       going to have to be given, but it is going to be some
       time in the early part of November.
           Right.  In terms of principle, subject to anything
       either of you have to say to try and correct me, I don't
       believe the stay can remain in place but just be lifted
       to the extent provided in the order.  An action is
       either stayed or it isn't.  I do not think it is going
       to make any difference to the procedural steps because
       you are both agreed there should be a wide range of
       detail, substantive steps in the action as of now.  But
       for some reason you seem to want the rubble of a stay
       hanging around.
   MR GREEN:  My Lord, it was only because there was quite
       a lot of procedural steps going into further issue 1.
   MR JUSTICE FRASER:  We just need to --
   MR GREEN:  Just to say -- we can vary it to say for the
       moment those --
   MR JUSTICE FRASER:  I think this order has to say that that
       seventh CMC order is superseded so far as this one is
       concerned.  But I do not think formally one can actually
       have an action that's stayed yet also make such
       a detailed directions order at the same time.
   MR GREEN:  My Lord, we will reflect that in the order.
   MR JUSTICE FRASER:  But I mean, that's just a technical
           Right, Mr Draper, you want to --
   MR DRAPER:  There's one further point.  I apprehend from my
       learned friend's submissions that we are agreed on this,
       but I want to make it clear.
           If your Lordship looks at paragraphs 15 and 16 of my
       draft order, my Lord.
   MR DRAPER:  The purpose of those paragraphs is to retain
       from the seventh CMC order, albeit with varied dates,
       the mechanism for selecting test claimants for stage 4.
       We just wanted to make sure that wasn't lost in the
   MR JUSTICE FRASER:  Is that in Mr Green's order as well?
   MR DRAPER:  It wasn't, my Lord.
   MR JUSTICE FRASER:  So you would like that in today's order.
   MR DRAPER:  We would.
   MR JUSTICE FRASER:  Okay, Mr Green?
   MR GREEN:  My Lord, we don't want the mechanism for stage 4
       to begin until we have got clarity on the Horizon issues
       judgment and the outcome of the common issues.
   MR JUSTICE FRASER:  Understood.
   MR GREEN:  So we thought given that there are likely to be
       other CMCs in the autumn, the sensible time to review
       the timing on that is then.
   MR JUSTICE FRASER:  Well, but if one puts a date in now,
       regardless of what the date is, if one puts a date in
       now where one is confident that you will by then know
       the Horizon issues outcome, although I can't see how
       that will affect the selection criteria but you will
       possibly know more than I do, there is no problem with
       putting it in the order now, is there?  Whether it is
       20th November or whether it is a later date, it still
       imposes a framework, doesn't it, for the action going
   MR GREEN:  Yes, my Lord.  Just in terms of getting the
       selection criteria to fit over the -- I agree with
       your Lordship --
   MR JUSTICE FRASER:  This is for round 4 though, isn't it?
   MR GREEN:  Exactly, it's for round 4.  So it's further down
       the line, so there actually isn't an imperative to do it
       before we have got clarity on both Horizon issues and
       particularly on common issues.  So we can look at what
       the categories of people are to select who the people
       for round 4 should be on an informed footing.
           So we don't object in principle to having a date for
       that, but it could just as easily be at the beginning of
       2020 or end of --
   MR JUSTICE FRASER:  I think what has to be done is the
       question of directions and timing for the selection
       criteria has to be addressed at one of the subsequent
       CMCs that I have identified.  Each of you just tell me
       which CMC you think of the three --
   MR GREEN:  I think probably the November possibly, or the
   MR JUSTICE FRASER:  What happens if the November one isn't
   MR GREEN:  Let's say the December one because then we will
       be able to do it with confidence.
   MR DRAPER:  Our concern is essentially that this process of
       identifying selection criteria and then arguing and
       agreeing those claims that meet the criteria is quite
       a slow one.  That was anticipated in the seventh CMC
       order, and we say essentially nothing has changed.  One
       doesn't need to reinvent the wheel in relation to the
       selection process.  There's no reason to put it off
           My learned friend says that they will be in a better
       position after the Horizon issue judgment.  I'm afraid
       I don't follow that.  The claimants know what the
       complaints are of the group, they are in a position to
       be able to co-operate with Post Office in order to put
       people essentially into baskets -- I don't mean that
       with any rudeness -- and say what characteristics there
       are within different subsections of the group.
   MR JUSTICE FRASER:  What's going to happen in round 4 so far
       as you are concerned?
   MR DRAPER:  Not yet been determined, my Lord.  You will be
       aware that Post Office's longstanding position is that
       once one has got through these initial stages, the most
       useful thing to do is identify fairly representative
       test claimants.  I don't mean in a strict sense, but
       claimants who are fairly similar to many other claimants
       in the type of complaint that they raise.
   MR JUSTICE FRASER:  But that won't be known by November,
       will it?  If you are right about that, and that does
       match my general understanding, how would you be able to
       do that in terms of agreeing a selection criteria or
       asking me to determine it if, for example, you have got
       permission to appeal from the Court of Appeal on the
       common issues judgment on some of the grounds only,
           Obviously if you get permission to appeal denied on
       everything, it is simpler.  If you get permission on
       some but not other grounds, that would make it
       difficult.  If you get permission on all of them it
       would make it more difficult.  And if you have only just
       had the Horizon issues trial judgment, depending on what
       that says, you won't necessarily know, will you?
           Mr Green, whether I make one or not is obviously
       a moot point, but he has invited factual findings on
       specific bugs, hasn't he, in the Horizon issue?
   MR DRAPER:  In relation to the claimants at that trial,
       my Lord, yes.
   MR JUSTICE FRASER:  So one of his selection criteria might,
       might potentially, I don't know and I'm not -- but might
       be done by reference to some of the detailed aspects of
       the Horizon issues' trial subject matter.
   MR DRAPER:  I appreciate that as a matter of principle it is
       possible that some selection criteria might be
       influenced by the Horizon issues judgment.  I'm not
       going to disagree with that.
           But what we are principally dealing with here is the
       factual circumstances of claim.  To give you an example,
       my Lord, it might be that one group of claimants are
       those who complain about what they say are erroneous
       transaction corrections, or to give another clear
       example those who complain about problems with lottery
       transactions.  They complain about the operation of the
       processes in that regard.
           Or there might be claimants whose essence of their
       complaint is that they were trained insufficiently so
       they made a lot of mistakes and those mistakes led to
       losses for which they were held responsible.
           Those kind of primary factual distinctions between
       the claimants don't turn on either of the judgements
       that your Lordship will have produced by the end of this
       year.  They essentially turn on what is it that these
       claimants say happened, what is the core of their
       complaint about what happened in their branch.  Those
       are, my Lord, factual matters within the claimants'
       knowledge rather than matters that are going to be
       influenced greatly by either the determination of the
       legal duties under the common issues judgment or in
       relation to essentially the reliability of Horizon.
           There is a caveat to that, my Lord.  I take your
       point that if you were, for example, to say, my Lord,
       that there was some particular bug affecting a type of
       transaction, that might assist the claimants in saying,
       well, here is a claimant who is representative because
       he is one of 50 who had a similar problem.  That can be
   MR JUSTICE FRASER:  But when you said the Post Office's
       longstanding position is once one has got through the
       initial stages, the most useful thing to do is identify
       fairly representative test claimants, though not in
       a strict sense, is your submission that we have got
       through these initial stages already, then?
   MR DRAPER:  We will have done, my Lord.
   MR JUSTICE FRASER:  How, though?  What's going to happen
       between now and November that means you will have got
       through, or we, not you, the Post Office, the
       claimants --
   MR DRAPER:  I see your Lordship's point is that we haven't
       got through those stages until we have had
       your Lordship's judgment.
   MR JUSTICE FRASER:  No, my point is a rather wider one,
       which is whatever is going to happen between now and the
       point at which we agree the selection criteria, which is
       obviously an important step, I mean, could it be done
       today?  Probably not.  Do both the parties want to wait
       and see the Horizon judgment?
           You say the Post Office aren't necessarily convinced
       they need to, but the claimants say they do.  What else
       is there between now and late autumn that's going to
       happen in the litigation in terms of resolution of
       substantive issues?
   MR DRAPER:  Nothing, my Lord.
   MR JUSTICE FRASER:  In other words, we probably could do
       it now.
   MR DRAPER:  We could make a good start.  As you will see
       from the order, the agreed selection criteria, the
       filing of the agreed selection criteria doesn't take
       place on our proposal until 20th November.  Our point is
       if we have that direction now the parties can get on
       with it.
           It may well be that they can get 4/5 of the way and
       then they get the Horizon issues judgment and they can
       filter in any effect that that has on the selection
       process.  But the selection process is a long one, it
       requires essentially the claimants to inform Post Office
       about the nature of many of the claims and to argue
       about what is and is not a proper category of claimant,
       to use loose language, that process can start now.  It
       may be informed by the Horizon issues judgment but,
       my Lord, that was the logic of the seventh CMC order.
   MR JUSTICE FRASER:  The timing of everything has slipped
       because of what happened with the Horizon issues trial.
   MR DRAPER:  It did, my Lord, the timing but not the
   MR JUSTICE FRASER:  No, I understand that.
   MR DRAPER:  The logic of the CMC order was never one has to
       wait for the Horizon issues judgment before getting on
       with the rest of it.
   MR JUSTICE FRASER:  No, but the logic of the seventh CMC
       order also didn't take account -- because Mr Green asked
       for a three-month stay and I would not give him one --
       didn't take account of any events of this autumn at all.
           Both parties have told me now that they have
       a mediation planned at some point, which I'm not
       interested in in the least but I have to take account of
       ordering cost proportionate steps, don't I, at a
       suitable cost-effective stage?
   MR DRAPER:  Yes, my Lord.
   MR JUSTICE FRASER:  You say it should be if not entirely
       finalised, the court needs to be in a much better
       position as at 4th December; is that right?
   MR DRAPER:  Yes, my Lord.
   MR DRAPER:  Having that deadline now means that the parties
       can make what progress they can in the coming months.
   MR JUSTICE FRASER:  All right.
           Mr Green, what do you have to say about that?
   MR GREEN:  My Lord, in a group action you never select
       claimants on the basis of general primary fact
       categories.  You always do it on a matrix of fact
       categories and legal issues to get a representative
       thing, not just because, oh, they both did something
       that sounds similar on training, one looks with
       precision to see what the greatest effect on the
       group is.
           So it is never done at that high level of generality
       ever.  And the whole point of having the common issues
       determined and the Horizon trial is so that those things
       are clarified and those stages are got through.  So with
       the benefit of that we can do it.
   MR JUSTICE FRASER:  But those, as I understand it, neither
       of that depends on the outcome of further expanded
       issue 2, does it?
   MR GREEN:  My Lord, it doesn't actually because that is
       a free-standing matrix which we can overlay over it,
       which is why we say it is the end of the year and
       address it at that point.
   MR JUSTICE FRASER:  What I'm going to do is I'm going to
       order that each party should lodge their proposed draft
       selection criteria, or should serve it on the other
       party and lodge it with the court, seven days before the
       CMC on 4th December.
           So that this can be revisited at that point.
   MR GREEN:  I'm grateful.
   MR JUSTICE FRASER:  So that is effectively a hybrid version
       of what Mr Draper is asking me to do, but I'm not going
       to order any intermediate or intervening steps.
           I don't, from my knowledge of this case and other
       cases, see the drafting and agreeing of selection
       criteria, it shouldn't really be particularly difficult.
       It might be lengthy depending on how many criteria you
       have got, but it really shouldn't be controversial.  But
       if you each lodge your drafts, it can be revisited on
       the 4th.
           The other thing you are going to need -- you will
       tell me if you think you will not -- is a pre-trial
       review for further issues for the third trial.
   MR GREEN:  Yes.  That could be the January date that we
       proposed potentially in our draft order.
   MR JUSTICE FRASER:  That was mid-January, was it?
   MR GREEN:  I think the 14th.
   MR JUSTICE FRASER:  Mr Draper, got anything to say about
   MR DRAPER:  No problem with that.
   MR JUSTICE FRASER:  I think I will make it a week later than
       that actually because you will be here on 4th December,
       and delightful though it is to see each other I do not
       think we need to see each other every four weeks.
           So that can be 23rd January, subject again, that is
       to be confirmed in the same email about dates.
           The only other point is is there anything to be
       gained in this order from setting down the dates for
       trial number 4?
   MR GREEN:  My Lord, I think given that we have got the
       opportunity in the autumn, we would say not at this
       stage.  Much better to do it when we have got more
       information on it.
   MR JUSTICE FRASER:  Let me see what Mr Draper has to say.
           Mr Draper, do you want me to do that?
   MR DRAPER:  No, my Lord, I agree we can revisit it in the
   MR JUSTICE FRASER:  I still remain, and it is not going to
       last forever I am sure, I still have a relatively free
       hand in terms of doing that, so that will be -- we don't
       even know what we would be trying in trial number 4 yet.
           All right.  So there's going to be liberty to apply.
       I assume it is agreed costs in case?
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  So you are waiting for a confirmatory
   MR GREEN:  Only on two dates, I think.
   MR JUSTICE FRASER:  I think it is on more than that,
       actually.  I think it is -- this is in reverse --
   MR GREEN:  Sorry, you are right.
   MR JUSTICE FRASER:  There is a PTR which I said was going to
       be on or around 23rd January for a half a day.  That's
       January 20.  There is 4th December, which just needs
       formally checking.  There is 7th November which may or
       may not be needed.
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  And 22nd/23rd October.  Is that right,
       Mr Warwick, does that match your note?
   MR WARWICK:  My Lord, yes.
   MR JUSTICE FRASER:  So if you would draft the order.  I am
       sure between you there won't be any disagreements, but
       if in drafting it up you find there is, given the time
       of year, send an email to my clerk asap and I will fit
       you in for half an hour.
           Mr Draper, is there anything else?
   MR DRAPER:  No, my Lord.
   MR JUSTICE FRASER:  Right, thank you very much.  We should
       formally vacate, I think, 18th September as well.
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  Have a lovely summer.
   (3.12 pm)
                      (The court adjourned)