Saturday 20 October 2018

Judgment No 2: Extremely Aggressive Litigation Tactics

The Royal Courts of Justice, recently.
The judge in the Post Office group litigation has issued an interesting ruling ahead of next month's trial.

For the last five weeks the Post Office has been trying to get sections of the Justice for Subpostmasters Alliance (JFSA)'s witness statements struck out before the trial starts. 

That ended on 15 October with Mr Justice Fraser's ruling, which comprehensively dismisses the Post Office's application along with a suggestion that it was only made to stop some very dirty linen being washed in public. 

In judgey-speak:
"I [...] suspect that in the background to this application the defendant is simply attempting to restrict evidence for public relations reasons.... Whether this “generates adverse publicity” for the defendant is not a concern of the court, as long as the evidence is properly admissible... which I have found it is. The court is not a marketing or PR department for any litigant, and the principle of open justice is an important one."
The judge also reveals that the combined costs accrued by both sets of lawyers so far has now topped £10,000,000. Ten million quid! The JFSA are funded by Therium Capital Management. Therium will take a cut of any damages the Subpostmasters are awarded, and shoulder their costs if they lose. The Post Office is funded by you. And me. Assuming they are burning through cash at the same rate as the claimants that's £5m of your money they've spent defending this class action. And the trials have yet to start.

One of the most striking things about the 20 page, 11,000 word document is not the ruling itself, but the world weary, exasperated tone the judge adopts throughout.

Here a flavour:
"The legal advisers for the parties regularly give the appearance of taking turns to outdo their opponents in terms of lack of cooperation... it appears to me that extremely aggressive litigation tactics are being used in these proceedings. This simply must stop. It is both very expensive, and entirely counter-productive, to proper resolution of what is so far an intractable dispute. I made similar comments in judgment No.1. These must have fallen on deaf ears, at least for some of those involved in this case."
If this epic saga is new to you, here's some background: the first trial in the Bates v Post Office class action (more correctly known as a Group Litigation Order or GLO) is due to begin on 5 November this year. 

Bates is Alan Bates, a former Subpostmaster at the Craig-y-Don branch in Llandudno who was sacked by the Post Office in 2003. After his sacking, Alan formed the Justice for Subpostmasters' Alliance, and it was under the JFSA banner that Alan rallied similarly aggrieved Subpostmasters to his cause. 

There are at least 561 claimants now signed up to the GLO by the JFSA's lawyers Freeths, and the first trial in November will feature evidence from six witnesses drawn from among the claimants. The trial will focus on the contractual relationship between the Post Office and its Subpostmasters and the judge is calling it the Common Issues trial. The second trial in March will deal with what might have gone wrong with the Post Office's Horizon IT system and that is being referred to as the Horizon Issues trial. 

The six "Lead Claimants" for the first trial have been chosen because what happened to them appears to be representative of what happened to many of the claimant Subpostmasters, with particular reference to the ways their contracts were handled (I suspect when it comes to the next trial on Horizon-related issues, a similar number of different "Lead Claimants" will be selected because their Horizon problems are representative of many of the problems wider numbers of claimants experienced).

On 10 August this year the JFSA made the witness statements it intended to use at the first trial available to the Post Office (the defendant). On 5 September the Post Office made a formal application to strike out 160 paragraphs of evidence from those six witnesses and suggested to the judge that this could be dealt with during an already scheduled costs hearing on the 19 September. The judge refused, saying he thought there would be too much to get through on one day, and so scheduled a hearing to discuss the strike-out application on 10 October.

Having proposed to deal with it on 19 September, the Post Office decided the 10 October date was too soon, and asked to have its strike-out hearing put back to the start of the trial on 5 November. The judge refused, saying:
"Extensive time at the trial... should not be spent arguing about what evidence should be admitted at that very trial." He notes the Post Office had relied "as one of the grounds justifying its strike out application, upon lack of time at trial. It would be rather circular to hear such an application relying upon such grounds at the very trial for which it was argued there was insufficient time."
But why did the Post Office say it didn't like large chunks of the claimants' witness statements? To paraphrase, the Post Office claimed the offending paragraphs:

a) weren't relevant to the first trial, because they related to events which had nothing to do with the witnesses' contracts.
b) were too subjective
c) weren't relevant to the area of law which the trial was examining

The Post Office said the offending parts of the witness statements should be struck out for five reasons:

1) the court had ordered evidence for the trial be restricted to contractual issues
2) there wasn't enough time to deal with the size of the witness statements at trial
3) the Post Office did not have enough evidence to respond to the claims made in the offending paragraphs
4) there was no benefit to the court in accepting the paragraphs
5) the trial was not set up to make findings on issues outside the area of law under examination

Before examining these arguments in his ruling the judge makes two pointed comments:
"The application by the defendant to strike out this evidence appears to be an attempt to hollow out the Lead Claimants’ case to the very barest of bones (to mix metaphors), if not beyond." 
"[Mr Green QC - the JFSA's barrister] submitted in his written skeleton [argument] that the [strike-out] application “appears to be an attempt by Post Office to secure an advantage at the Common Issues Trial by selectively tailoring the evidence which the Court is to consider.” I accept that submission too; the application certainly gives that appearance." 
Over several thousand words the judge concludes the Post Office's application is essentially a load of piffle. He rules the evidence in the paragraphs which the Post Office wants struck out is indeed relevant to the GLO. He also notes the point made by the JFSA's barrister that the subjects and themes which the Post Office has taken legal exception to in the JFSA's evidence are remarkably similar to those relied on (at length) by the Post Office in its own defence.

He then swiftly dismisses the rest of the Post Office's arguments, seeming particularly annoyed by the Post Office's suggestion that if the offending paragraphs were not removed the forthcoming trial:
"would simply become unmanageable, and cross-examination would be constantly interrupted by regular repetitive objections by Leading Counsel for the defendant on the same grounds, again and again."
"I find that submission surprising" notes the judge, with a hint of understatement:
"These submissions by the defendant could, on an uncharitable view, appear to be made almost as vague threats to disrupt the Common Issues trial."
Finally, the Post Office has often been accused by aggrieved Subpostmasters of being arrogant and belittling in its dealings with them. During the parliamentary debate I attended in December 2014 Andrew Bridgen MP said:
"The way in which Post Office senior management have dealt with our working group of MPs has been extremely high-handed. I share my right hon. Friend’s concerns: if Post Office management speak to Cabinet members and senior Members of Parliament in the way they do, the way they treat their sub-postmasters must be feudal."
These are the comments the judge makes on the subject in his 15 October 2018 ruling:
"Some passages of the Lead Claimants’ evidence relate to the circumstances in which their engagement with the defendant was terminated... The Lead Claimants complain that such terminations were abrupt, came out of the blue, accused them of falsifying accounts and made other statements that were not factually accurate, and also that the defendant’s approach (and that of its solicitors) was generally heavy handed. I have read some of this correspondence, as it was exhibited to the witness statements. The tone of some of it is undoubtedly aggressive and, literally, dismissive. I make no findings about any of this at this stage, nor do I even consider whether such an approach was, or was not, justified in any particular individual case at the time. However, regardless of any rights and wrongs of such an approach then, with the Lead Claimants individually in that correspondence, I wish to make one point entirely clear, so that this cannot be misunderstood. An aggressive and dismissive approach to such major Group Litigation (or indeed any litigation) is entirely misplaced." [my italics]
I wonder why he felt the need to say that?

You can read the judgement in full here. As I say, it's quite interesting.