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Tuesday, December 4, 2018

Day 12 - live tweets

This a completely GASH copy and paste and attempted tidy-up of my Day 12 live tweets. Do NOT trust any of the figures, they have had numbers removed in the formatting. Do not attribute any quotes, even if they are in direct quotes - they have deteriorated far too much. Go to the originals here:


Okay we are in court   6 of the Rolls Building due to start any moment. Did you read the Daily Mail article over the weekend about this? You really should. It is superbl well-written and very fair to everyone:

Also - I have decided to make this morning’s secret subscriber email public as we only have one week to go of this trial ANY contributers to the tip jar at http://www.postofficetrial.com  will be added to the secret email list.
Please remember that anything I live tweet is a NOTE which PARAPHRASES what is being said here at the #postofficetrial. The judge has ordered that I get the daily transcripts… so direct quotes will be in my daily evening updates. Emailed to all subscribers.

We have just started. Patrick Green QC (PG is on his feet for the claimants). David Cavender QC for the Post Office is in his sear. The Hon. Mr Justice Fraser is presiding.

That tweet will hopefully be the least articulate I send today.
           
David Cavender QC (DC) is in his SEAT.
           
I am told the next four days will feature lots and lots of complicated legal argument. We are already talking about express terms, implied terms and precise terms and I am developing a headache.

PG we don’t say that the mere attaching of a label “relational contract” imports express terms… etc

PG has now referred twice to Yam Seng a piece of case law about “Contractual duties of good faith”(https://www.judiciary.uk/wp-content/uploads/  0  6/  0/mr-justice-leggatt-lecture-contractual-duties-of-faith.pdf …). The precise legal nature of the relationship between Subpostmasters and the PO is extremely important.

Or at least I assume it has to be or both QCs would not have spent so much time on it throughout cross-examination.

I did mention that nothing I write is a direct quote. That is true unless it is in “direct quotes”. There just won’t be many of them throughout the day…

PG suggesting we all have a close reading of Yam Seng. Turning to it now...

Here is the original Yam Seng judgement:

   

PG is drawing a contractual distinction between honesty in all commerical contracts and good faith which he is suggesting is a lower bar.

PG makes the point that it is still the pleaded case by the Post Office that “good faith” is not essential [PG gives example of what he calls the “NFSP wrinkle”] when it comes to the "right to vary" contracts

PG calls this “surprising” the judge seems less bothered because he makes the point that “good faith” has a somewhat contested in the context of this trial.

judge is talking about justice leggatt and justice bingham rulings on fairness. Yam Seng apparently means that you look at the contract and the relationship as a whole and make a decision on that basis. whereas Bingham looks at it    case by case…

… and might expect english law to develop in a    piecemeal manner. Judge asking which “end of the telescope” PG is asking him to look at.

PG says when it comes to contract he wants the judge to look at the asymmetry of power when it comes to bargaining of contract.

PG uses example of Alan Bates being forced by the Post Office to install a lottery terminal in his branch as part of his contract. Bates agreed, built up the lottery income and made it part of his business plan going forward.

A year later the PO took his lottery terminal and put it in a less profitable branch.

Bates had no choice in the matter. PG says this is an example of an unusual asymmetry of power in a contractual relationship.

The QCs sit in the middle of court facing the judge separated by a small gap in the desks. They are about two arms lengths apart. Today they have built two strange towers of files between them. I am sure there is good reason, but am reminded of that scene in The Office.

I have been sent the Claimants’ written closing. It is   77 pages long. Might skim through for some highlights.

PG talking about “the interphoto perspective of piecemeal solutions” and asking his Lordship to look at the parties relative powers, the contractual powers given between the parties and the way that contract is operated…

[we could call this the Bingham approach]
PG how would a SPMR anticipate d a disputed shortfall could be resolved? Would it be by ignoring a patently relevant factor?

Judge - Mr Beal said the provision in the NTC that dealt with losses was intended to have the same intention as the SPMC - yet it was drafted remarkably differently. Yet that is subejctive intention.

PG wrt to the alleged clarity of the [contractual] terms if NONE of the PO employee witnesses [in this trial] knew or understood what they meant, then the court may take a view on how well they were explained to individual SPMRs...
PG now asking the judge to look at the PO’s closing submission “my learned friend really rather finesses the ‘would’ spectrum” - he says the PO’s attempt to suggest their contractual docs are clear is wholly flawed and wrong on the evidence the court has heard.

[It could be the “Wood” spectrum. This is not easy...]

Ah - it looks as if the Post Office are going to argue that the Subpostmasters contract (or at least the NTC version) was negotiated by professional parties. Negotiating for the SPMs? The NFSP, whose income comes from… the Post Office. Read this for more.

From the Claimants’ closing argument (written): Preliminary Observations on the Evidence
1. The trial has been revealing.
  . The Defendant’s evidential edifice has collapsed. The generic picture presented by the Defendant has been shown to be generally unreliable...

[you can quote this btw]… and in parts positively misleading.
3. The Court and the Claimants have had to devote considerable resources to ensure that the Court could consider the Common Issues on a fairer and truer footing.

4. The picture presented by the Defendant’s evidence required a level of scrutiny, by both the Court and the Claimants, which would have been difficult had the Defendant’s application to strike-out much of the Claimants’ evidence been successful.

5. By contrast, such challenges as were actually made to the evidence of the individual Lead Claimants were generally weak. Further  , much of their evidence was later put into context by evidence from the Defendant’s witnesses: see, for example…

…. , Mr Abdulla’s concerns about National Lottery ‘errors’ of £1,09  ; and the basis of Mrs Ridge’s decision to terminate Mr Abdulla’s appointment.

[I’m going to tweet the highlights - not all   77 pages…]
7. The Lead Claimants’ evidence represented a genuine and conscientious attempt to provide the Court with a detailed   of the relevant facts, identifying the documents relied upon both in the body of their…

… witness statements and by exhibiting the documents to which they refer. They sought to identify the source of information, as required by CPR PD3  , paragraph   8.  .
8. By contrast, the Defendant’s evidence took a different approach.

8.   Generic evidence was given at a very high level of abstraction and scarcely any of the relevant policy or operational documents were identified, still less exhibited…

… This left the Claimants to try to find relevant source documents in the largely unstructured disclosure given by the Defendant.

8.   One example was Mrs Angela Van Den Bogerd mentioning the Branch Support Programme in one line in her witness statement, without condescending to even the most general level of detail as to its purpose, content and (obvious) relevance….

… Similarly, nowhere did she refer to any underlying training material or her own co-authored papers in which she detailed user experience with Horizon.

As to why it was left to the Claimants have to find all these documents to correct the impression in her witness statement, her answer begins at {Day8/77:4}:

“I don't ... I suppose the length of my witness statement, it is what information went in there...” When asked by the Court whether it was her understanding that there was a restriction on the length of her witness statement…

Mrs van den Bogerd replied at {Day9/67:  3-  5}: “It was -- the witness statement is quite lengthy in itself anyway and I suppose it was just myself, just how much actually went into that statement in itself” …
… but then confirmed that it was her judgment as to what to include {Day9/68:  -3}: “Yes, what information was relevant to go in there or not.”

8.3 Some witnesses had simply not even seen the primary documents about which they were purporting to give ‘would have’ evidence.

8.4 Others had seen key documents but simply not referred to them: Mr Webb had been shown Mr Sabir’s transfer documents while preparing his witness statement but had not referred to them in the statement {Day 10/  64: 18}.

8.5 [Post Office] Witnesses were surprisingly unfamiliar with documents that their statements suggested they knew or would be  likely to understand.

8.6 Some witnesses could not explain why certain matters had even been included in their witness statement (e.g. Mr Haworth’s reference to an interview at Sandsacre, when they were always carried out in Leeds).

8.7 No conscientious consideration had been given to correcting witness statements, even when the witness had pointed out the error a week earlier; and despite a direction from the Court that corrections should be provided in writing in advance of a witness being sworn:

a. Mr Shields unexpectedly corrected his witness statement orally;
b. Mr Haworth did not correct the location of the interview, despite having
realised it was wrong before he gave evidence

c. Mr Trotter completely reversed his evidence, without warning – after he had made his witness statement, explaining the structure that he “always” followed, someone had realised that the recording of the interview proved that he had not gone through the checklist...

... Mr Trotter’s reversal was introduced orally by reference to “the format of the structure that you normally ran through in interviews” {Day    /  35:  7} and {C  /  3/  }
[This is powerful stuff this - the Post Office response will come on Wednesday. So read this in the context of it being the claimants’ QC’s summary ie necessarily one-sided. but also very reportable]

8.8 The relationship between policy and reality on the ground was often tenuous at best; see e.g. the ‘would have’ evidence of Sarah Rimmer

Q. So there is a difference, isn't it, there between what should happen in the policy and real life, what happened on the ground?
A. Yes.
Q. And that is fairly common in work life, isn't it?
 A. Yes.

1 . The forced acceptance of ‘debts’ lies at the heart of this case. The Defendant has approached this with Nelsonian blindness, in dealing with SPMs and at trial.

  3. There never was an option to dispute a discrepancy or a TC on Horizon itself: GDef §46(  ) {B3/  /  8}. When introducing a ‘Dispute’ button was expressly raised, it was rejected {F3/7  /  }….

… It can fairly be said to be deliberate. This distorted the relationship and the so-called ‘ ’ recorded on the Horizon system.
 



  4. The Defendant also recognised the unreliability of the overall system accurately to reflect the true state of   at a given moment, in other ways: by issuing compensating TCs, in the express promise of such TCs and in Helpline telling SPMs to use workarounds.


  5. Nonetheless, ‘debts’ were collected by misleading letters from the Debt Recovery Team.

  6. When SPMs could not pay these debts, the Defendant might agree to take regular instalments from their remuneration over a period, on condition that all further losses must be made good immediately. This created an impossible situation.
         s  


 




 




 







   
 



  8. Unfortunately, the dispute process was also flawed, particularly by placing the burden to investigate on the SPM and by requiring precise details including the time, date and cause of the loss, effectively as a pre-condition to raising a dispute. In those cases...
         s  


 




 




 







   
 



…  (typified in this litigation) in which the SPM was unable to identify the cause of the loss, it was inapplicable, ineffectual or ineffective. What disputing meant in practice was opaque.
         s  


 




 




 







   
 



  0. A SPM without the funds to meet the ‘debt’ might face the option of committing a criminal offence by writing a cheque, well knowing that they could not honour it...


… especially in a case where they had been allowed to pay a previous discrepancy by instalments, on condition that they had to make good all further losses immediately.




    . SPMs had no idea of the debt trap or disputes process – nor could they have ever expected the contract would operate in that way. They certainly were not told.


    . The construction and fairness of terms as to  s and liabilities (and whether they were onerous and unusual) fall to be considered against that background.

[PG and judge having a discussion about dishonest and honest in the context of good faith and bad faith and how gf and bf fall into a spectrum of honesty and dishonesty. PG argues in the context of Yam Seng that the

… law requires both parties in a contract to apply
propriety, conscionability and commercially acceptable conduct at all times. I think that PO will argue that is not the law.]

We’ve just come from a break. We are still on Yam Seng case law wrt to good faith. PG wants to draw our attention to p  39 "Another aspect of good faith which overlaps with the first is what may be described as fidelity to the parties' bargain."

"The central idea here is that contracts can never be complete in the sense of expressly providing for every event that may happen. "

…. In any situation it is dishonest to deceive another person by making a statement of fact intending that other person to rely on it while knowing the statement to be untrue. Frequently, however, the requirements of honesty go further."

"For example, if A gives information to B knowing that B is  ly to rely on the information and A believes the information to be true at the time...

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

And p  4   "In some contractual contexts the relevant background expectations may extend further to an expectation that the parties will share information relevant to...



… the performance of the contract such that a deliberate omission to disclose such information may amount to bad faith."


"English law has traditionally drawn a sharp distinction between certain relationships – such as partnership, trusteeship and other fiduciary relationships – on the one hand, in which the parties owe onerous obligations...

… of disclosure to each other, and other contractual relationships in which no duty of disclosure is supposed to operate."

"Arguably at least, that dichotomy is too simplistic. While it seems un ly that any duty to disclose information in performance of the contract would be implied where the contract involves a simple exchange...

many contracts do not fit this model and involve a longer term relationship between the parties which they make a substantial commitment.”
PG says “we say beyond ‘arguably’"

PG “that dichotomy is too simplistic and it is basically wrong, we say."

PG goes back to p  4   "While it seems un ly that any duty to disclose information in performance of the contract would be implied where the contract involves a simple exchange...
...many contracts do not fit this model and involve a longer term relationship between the parties which they make a substantial commitment.” [this is p  4   of Yam Seng btw - not his own closing argument]
PG the law historically catered for broad contractual relationships on a  piecemeal business

PG but over the last 30 or so years, detailed framework contracts etc have developed and PG says that the common law approach is now out of date.


[It is evident to me, if nothing else, that this case may well have a bearing on contract law going forward as the judge makes his findings]

[We are long way away from the drama of the cross examinations a couple of weeks ago - we are into detailed legal argument about what the judge should and shouldn’t consider when making his findings and why]

Let’s go back to the written closing submission which has just been released to the press. I am picking at the interesting lines. I’ve already tweeted a few. Here is par   7.   "As Angela Van Den Bogerd makes clear at §80.   of her witness statement  in relation to transactions...

…  and transaction data, “Post Office handles this on behalf of the Subpostmaster”.
  8. There can be no doubt that, once the Defendant insists that SPMs are not its employees and are in business on their own  ...
           

… it is clearly carrying out the Admitted Functions, including recording and reconciling transaction data on behalf of SPMs (even if also on its own behalf). Any doubt which the Defendant might seek to conjure up evaporates on reading Angela Van Den Bogerd’s own evidence."

  9. Of course, the Defendant’s agency is a limited and confined one, but agency it is. And the Defendant is under a duty to provide full information to a SPM in relation to any transaction which the Defendant has “handled on behalf of the Subpostmaster”.

3  . Although there are a large number of Common Issues, their resolution may be    straightforward than the Defendant’s references to the kitchen sink might suggest.

3  . As the Claimants have made clear, the real target of their case on these Common Issues is the extreme construction advanced by the Defendant in almost every aspect of the relationship with SPMs.
34. ... these contracts between the Defendant and SPMs are relational contracts (as understood in Yam Seng) and the Defendant was subject to duties of good faith, fair dealing, transparency, cooperation, and trust and confidence.

36. Whether one approaches the question on the basis of shared norms of behaviour or the value judgment to be made as to commercial and practical coherence,     all roads lead to Rome….
           

…  It is not clear what an organisation such as the Defendant ought properly have to fear from the implication of essentially uncontroversial norms of commercial behaviour.
38. Section      Clause      of the SPMC is straightforward. It does not require the re-writing reflected in the Generic Defence. It plainly concerns cash and stock (as the heading of Section      makes clear)….

…  There can be little doubt that the legal burden of proof is properly a matter of construction of the clause; that burden (to show a loss of cash or stock caused by the fault of a Subpostmaster or assistant) is on the Defendant.

40. Capturing the vice of the debt trap within the loss provisions in the contracts would be  ly to render those clauses (or the related  ing provisions) ...

… ‘onerous and unusual’ and/or unfair – so the Defendant must elect in its arguments, between the difficulties which these issues present.

… Those difficulties arise because no reasonable notional party would ever expect the forced acceptance (as debts) of disputed sums, in the way that the Court has heard in evidence….
… Subpostmasters were never told of this and could never have anticipated that it would work in this way – particularly with large sums whose root cause it was impossible for Subpostmasters to trace.

44. What does matter is whether the Defendant’s extreme position as to the parties legal relationship (only qualified by two high level terms whose application is said to be fact specific in every case) should stand.
           
46. Post Office introduced Horizon in   1999/ 2000. This was a major change for SPMs who had previously been using the paper-based system, with no interface between their  s and Post Office’s

... Post Office required SPMs to use Horizon – it was a mandatory change imposed by Post Office on all SPMs.
           

47. From the date of introduction of Horizon, SPMs were required by Post Office to enter all transactions onto Horizon, to perform balancing with Horizon, and to submit  s at the end of each trading period to Post Office using Horizon.

48. Post Office required SPMs to produce branch  s, initially weekly, and then, from   005, at the end of each Post Office specified “Branch Trading Period”, being a 4 or 5 week period

49. Horizon significantly changed the process by which the branch  s were generated and SPM control over those  s. As described by Mrs Van Den Bogerd in her witness statement , Horizon “automatically generates the branch  s”.

5  . SPMs were able to use a branch suspense   on Horizon during the currency of each trading period. Initially it was possible for SPMs who had received authority from their Retail Network Manager to hold a loss or a gain in the suspense   and still “roll over” ...

… i.e. enter the next trading period and be able to trade the following day (e.g. see   00   Horizon User Guide) – this reflected the pre-Horizon position.
           

However, in   005 this process changed, such that all suspense  s had to be cleared at the end of each trading period in order for the SPM to roll over. ...

… By reference to this   006 document, Mrs Van Den Bogerd stated in re- examination “in   006 when this was issued it was – we’d just moved from the old system where they could hold things and they were forced in   005 to settle at the end of the month”...

... The Claimants adopt Mrs Van Den Bogerd’s characterisation of this change.

5  . As admitted in the Defendant’s Generic Defence,  “there is “no option within Horizon” to dispute a shortfall, in the sense that the process of raising and resolving a dispute requires the dispute to be lodged by calling the Helpline”.

54. As with other apparent shortfalls, the only way a SPM could dispute a TC was to call the Helpline and specifically say that they wished to raise a dispute ...

…. (noting here the evidence of Pam Stubbs, where she had not specifically said the word “dispute” so had been treated as not having disputed a TC for £9,033).

55. Post Office had considered introducing a dispute button in   008 but had rejected it on the basis that “The use of a dispute button simply provides a delaying mechanism and requires P&BA to resupply the evidence”...

…  The introduction of a dispute button would have allowed SPMs not to accept TCs which they believed to be incorrect (as put to Mrs Van Den Bogerd, which she initially conceded “possibly” and when pressed agreed “I take the point)”

58. Post Office’s position in the GDEF [generic defence] that “A Transaction Correction notification sent by Post Office to a branch is a proposal, not an instruction” is wholly false given the way in which Horizon operated as above, and described further below.
60. It was a theme amongst Post Office’s witnesses that they did not know about the actual Horizon screen layout as available to SPMs: Mrs Van Den Bogerd  “Q. Is there an “Accept now” button on the screen – A. Not that I can recall but I would need to see the screenshot.”...



... See also Mr Haworth, who, despite him having been trained himself on Horizon and having been engaged in the roll out programme of Horizon was not familiar with the layout of the Horizon screen or what buttons a SPM had to press...

…. Mrs Dickinson – despite the scope of her role and involvement in criminal cases - was unaware of the fact there was no dispute button
           
6  . Selecting “Settle Centrally” transferred the amount to the SPM’s  , where it was treated by Post Office as a debt, unless the debt recovery process was suspended by Post Office.
[point 6   then adds the transcript from earlier on in the trial]...

"MR JUSTICE FRASER: So far as your evidence is concerned then, does it make a difference to how Post Office pursues what it perceives to be a debt whether an amount is settled centrally or not?
A. I think in settling the debt centrally we then know what the amount is….
           

….  There is a record then at -- as in this case, as at 9 January, that there is a debt of £9,033.78. And that would be at that point in time. So that then -- they can do the investigation…

… into that amount and then subsequent amounts.
MR JUSTICE FRASER: I am not necessarily sure I understand that so I will just ask you the question again. Is there a difference to how Post Office pursues...
           

…  what it perceives to be a debt whether the amount is settled centrally or not?
A. No.
MR JUSTICE FRASER: Thank you. That is what I thought."
           

The effect of the system as introduced by Post Office as explained further below, is that SPMs were “forced to accept debts they do not agree with at branch trading”...

– a point recorded in the internal Post Office memo, TC/Debt recovery review dated   4 November   009.

[I have asked for this document]

Skipping forward a bit, let’s talk about Transaction Corrections issued via Horizon:

Par 73: The unexplained and wildly varying volumes of TCs processed each year is striking, The table produced by Post Office shows that e.g. from   005 to   006...
             

… the volume of TCs increases from approximately     k to   08k; and following the years   009-  4 with total values of £    m, £    m, £4.5m, -£975k, -£  .5m, and £7.5m….

…  In   0  5 the total value was -£4  m (this negative value reflecting £53m of TC credits having been issued that year). This table was produced pursuant to the third CMC Order and was specifically described by covering letter dated...
           
               
…   8 May   0  8 to have a margin of error of “around   %”, and that “our client believes that the information produced is broadly reflective of the scale and volume of TCs processed each year, which was the purpose being paragraph      of the Third CMC Order”….
           
               

…  By reference to this table, Mrs Van Den Bogerd accepted the obvious proposition that “Subpostmasters don’t become wildly    negligent or careless one month to another. There may be slight variations but they don’t suddenly all become wildly negligent overnight...
           

… , and then wildly diligent the next morning or the following month, do they?”,
A: “I wouldn’t imagine so”, but was unable to explain what happened in   0  5 to cause the -£4  m of TCs to appear that year.

74. The supposed infallibility of Post Office, and TCs being needed only to correct errors made by SPMs in branch is worthy of note. Whereas Mrs Van Den Bogerd accepted in cross examination by reference to the Post Office table of TC volumes...
           

…  for   0  3/  4, above) separated by “caused by branch” and “not caused by branch”, that even on Post Office’s figures those “not caused by branch” were around   0% of the total...

… later in re-examination, when she was asked, in simple terms what is the purpose of a TC, she answered “To correct something that has been transacted incorrectly in the branch.”

This has been a feature of Post Office’s case in relation to TCs e.g. GDEF “One of the safeguards against errors by Subpostmasters (or their staff) is a process by which Post Office proposes corrections to a branch's  s ("Transaction Corrections")”.

75. Post Office’s documentation disclosed    generally for the purposes of this litigation has been awash with errors and mistakes, from which it is reasonable to infer that Post Office’s processes and procedures were anything but fool proof e.g...
           
… 75.   Letter sent to Mrs Dar, beginning “Dear Flat   ”

75.   Letter sent to Mr Abdulla dated 7 April   005, put by Mr Cavender QC to Mr Abdulla on the basis it was sent in the early part of December   006….


75.3 Email sent to Mrs Stockdale re induction training {E6/64/  }, stating branch opening on 8 May, following which there will be on-site support until 6 May.

[We are still listening to legal argument by the claimants’ QC. Whether a ruling by a judge is persuasive or binding and how that judgement might be legally affected if the judge is promoted whilst considering a case]
[I contend we’re going to get    out of looking at the...
           
… written closing submissions than you reading me trying to document too much of the oral arguments.]
 

So “Product Process and Horizon Design” from the closing submission:

"76. Post Office’s control over the Horizon system included the requirements as described above in respect of:...

76.   No dispute button for TCs.
76.   Forcing SPMs to accept TCs in order to roll over.
76.3 Forcing SPMs to clear suspense   in order to roll over."
           
77. Post Office further controlled the functionality and layout of the system in relation to the potential for errors to be made in branch by a SPM or an assistant for which the SPM would ultimately be held liable...
           
…  This included e.g. the interface between lottery sales and Horizon (described by Mrs Van Den Bogerd as “the ping fix” introduced in   0    ).
           
               
78. In   0  6 Mrs Van Den Bogerd recognised Post Office’s control of such matters in an internal document (the focus of which was avoiding losses to Post Office), as follows...
               

“Product and process design: Contractually postmasters are liable for any losses caused by them or their staff. However we should be avoiding this situation in the first place. Some products and customer journeys are overly complicated...

…. or currently designed in such a way as to make fraud possible, as acutely demonstrated by the BCV fraud. Equally, some in-branch processes are    complicated than they could be….
… , and then wildly diligent the next morning or the following month, do they?”,
A: “I wouldn’t imagine so”, but was unable to explain what happened in   0  5 to cause the -£4  m of TCs to appear that year.
 

74. The supposed infallibility of Post Office, and TCs being needed only to correct errors made by SPMs in branch is worthy of note. Whereas Mrs Van Den Bogerd accepted in cross examination by reference to the Post Office table of TC volumes...
…  for   0  3/  4, above) separated by “caused by branch” and “not caused by branch”, that even on Post Office’s figures those “not caused by branch” were around   0% of the total...
           
                … later in re-examination, when she was asked, in simple terms what is the purpose of a TC, she answered “To correct something that has been transacted incorrectly in the branch.”
           
This has been a feature of Post Office’s case in relation to TCs e.g. GDEF “One of the safeguards against errors by Subpostmasters (or their staff) is a process by which Post Office proposes corrections to a branch's  s ("Transaction Corrections")”.
           
               
 

75. Post Office’s documentation disclosed    generally for the purposes of this litigation has been awash with errors and mistakes, from which it is reasonable to infer that Post Office’s processes and procedures were anything but fool proof e.g...
           

… 75.   Letter sent to Mrs Dar, beginning “Dear Flat   ”

75.   Letter sent to Mr Abdulla dated 7 April   005, put by Mr Cavender QC to Mr Abdulla on the basis it was sent in the early part of December   006….


75.3 Email sent to Mrs Stockdale re induction training {E6/64/  }, stating branch opening on 8 May, following which there will be on-site support until 6 May.
           
               

[We are still listening to legal argument by the claimants’ QC. Whether a ruling by a judge is persuasive or binding and how that judgement might be legally affected if the judge is promoted whilst considering a case]
[I contend we’re going to get    out of looking at the...

… written closing submissions than you reading me trying to document too much of the oral arguments.]
           
               
So “Product Process and Horizon Design” from the closing submission:

"76. Post Office’s control over the Horizon system included the requirements as described above in respect of:...

76.   No dispute button for TCs.
76.   Forcing SPMs to accept TCs in order to roll over.
76.3 Forcing SPMs to clear suspense   in order to roll over."
           
                 

77. Post Office further controlled the functionality and layout of the system in relation to the potential for errors to be made in branch by a SPM or an assistant for which the SPM would ultimately be held liable...
 

…  This included e.g. the interface between lottery sales and Horizon (described by Mrs Van Den Bogerd as “the ping fix” introduced in   0    ).
           

78. In   0  6 Mrs Van Den Bogerd recognised Post Office’s control of such matters in an internal document (the focus of which was avoiding losses to Post Office), as follows...
           
               

“Product and process design: Contractually postmasters are liable for any losses caused by them or their staff. However we should be avoiding this situation in the first place. Some products and customer journeys are overly complicated...

…. or currently designed in such a way as to make fraud possible, as acutely demonstrated by the BCV fraud. Equally, some in-branch processes are    complicated than they could be….
           
               

… This, coupled with sub-standard Horizon Help, makes it     ly postmasters and their staff could make mistakes leading to losses.”

79. Importantly, Post Office’s control included potentially introducing measures to prevent miskeying.
           
80. The fact that Mrs Van Den Bogerd could not say whether those recommendations were implemented, together with the existence...
           
               

…  of the   0     Mis-Keyed Project Feasibility Study (to which Mr Haworth contributed), clearly evidence that Post Office did not introduce the recommendations in the   008 report.
           
8  . These matters put into context Mrs Van Den Bogerd’s reliance on mis-keying as a cause of shortfalls in her witness statement}, her position that Post Office does not have first hand knowledge of whether a SPM has entered a transaction correctly...

…  on Horizon, and Mr Cavender putting to Mrs Stubbs in cross examination that “it is the sort of thing that could easily happen, isn’t it, putting in the wrong number of noughts”….
           
               
… The fact that this could easily happen – and very significantly do so to the detriment of SPMs - was precisely because Post Office had chosen not to introduce double entry and cross validation processes to prevent miskeying.
           
               

Okay. Now the written closing submission moves on to “Bugs” in the Horizon system.
           
               

8  . It was part of Mrs Van Den Bogerd’s witness statement that:
8  .   Horizon is a “robust” system, and that “No-one truly expects an IT system to be perfect...
           
               
… but they would expect it to be robust and for Post Office to have in place reasonable processes for detecting and correcting any problems”...
           
                … and..
8  .   “Subpostmasters are solely responsible for their branch  s. There is no transaction that enters their  s without their consent (or their consent by proxy through their assistants)”
           
83. The Claimants dispute this evidence. For the purposes of this trial the Claimants rely in particular on the disclosed documents relating to the Receipts / Payments Mismatch issue at and the Local Suspense Problem.
           
               

[These are now well-documented bugs which materially impacted branch  s and it is interesting to note that the claimants wholly reject AvdB’s evidence on this point - I’ll pick this up in my write up.]

Sorry - I forgot to say - we’ve broken for lunch and now we are back for the afternoon session of Day      of the Bates and others v Post Office trial at the High Court Rolls Building
#postofficetrial
           
         
Patrick Green QC is on his feet for the claimants. We are   .5 hours into his   0 hour closing argument. The Post Office QC will be on his feet on Wednesday to start his closing argument.

For some background to this trial, please go to #postofficetrial. For an excellent primer, please read the Daily Mail’s breathless (and brilliant) write up here:

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This morning, and I suspect most of the next four days will be taken up with legal argument about the correct interpretation of case law when it comes to this trial. Particularly contract law which has taken up a very large chunk of this trial.

Judge has just said “are we going to crush some cars?” in reference to a case law ruling on Globe Motors. It raised a smile in the courtroom in what has been a dry day so far...

We are now indeed looking at Globe Motors. Full transcript of that ruling here: https://www.bailii.org/ew/cases/EWCA/Civ/  0  6/396.html …
Summary by @AllenOvery here:
http://www.allenovery.com/publications/en-gb/Pages/No-variation-clauses-weakened-by-Court-of-Appeal.aspx …

The phrase “summer sizzlers” has just been mentioned. Am going to listen for a bit to see why PG QC thinks Globe Motors v TRW is relevant to Bates v Post Office.

Right - it is that relational contract in this case (“the instant case”) is being used as a shorthand term for a duty of good faith and co-operation. I think the judge and PG QC are agreed. Whether the Post Office is or not will become clear. On Wednesday, maybe.
           
               

The Globe Motors case is important because it’s a court of appeal ruling made by 3 law lords and is therefore binding on this court.
Here are a few examples of Globe motors which have just been discussed for a while: "One manifestation of the flexible approach referred to by McKendrick and Lord Steyn is that, in certain categories of long-term contract...
           
               

   
   

… the court may be    willing to imply a duty to co-operate or, in the language used by Leggatt J in Yam Seng... a duty of good faith."
    0   s  
             

   
   

Leggatt J had in mind contracts between those whose relationship is characterised as a fiduciary one and those involving a longer-term relationship between parties who make a substantial commitment. The contracts in question involved a high degree of ...
           
               

   
   

… communication, co-operation and predictable performance based on mutual trust and confidence and expectations of loyalty….
           
               

   
   

…  "which are not legislated for in the express terms of the contract but are implicit in the parties' understanding and necessary to give business efficacy to the arrangements".
           
               

   
   

68. This is not the occasion to consider the potential for implied duties of good faith in English law because the question in this case is one of interpretation or construction, and not one of implication. It suffices to make two observations.
           
               

   
   

…  The first is to reiterate Lord Neuberger's statement in Marks and Spencer PLC v BNP Paribas Security Services Trust Co (Jersey) Ltd (see [58] above) that, whatever the broad similarities between them, the two are "different processes governed by different rules”...
           
               

   
   

… The second is that, as seen from the Carewatch Care Services case, an implication of a duty of good faith will only be possible where the language of the contract, viewed against its context, permits it….
           
               

   
   

…  It is thus not a reflection of a special rule of interpretation for this category of contract.
           
               

   
   

I think it might be better if I go back to the written closing statement as basically the judge is either going to accept a nuanced interpretation of the meaning of the language within a specific clause in a specific piece of case law...
           
               

   
   

… or he isn’t.
           
               

   
   

And he will rule on this next year.
           
               

   
   

Okay earlier in this thread I got as far as par 83 in the written closing submission. Here are some    selected highlights:
           
               

   
   

85. The Local Suspense problem further undermines Post Office’s position as to the “robustness” of Horizon. This problem had been identified by Post Office but not reported to Fujitsu in   0    /    ...
           
               

   
   

…. and Fujitsu was not asked to investigate further - the same problem then occurred in   0    /  0  3 and this time one of the branches reported the problem to Fujitsu on   5 February   0  3, it was only following this notification by the branch that the root cause was identified...
           
               

   
   

As put to Mrs Van Den Bogerd:

...So the short point is that, if you don't actually bother to investigate, things can recur again, can't they?
A. Yes...
           
               

   
   

Q. And that rather supports the evidence you have fairly accepted; that it is essential to have a robust system to investigate the root causes of problems?
A. Yes.
           
               

   
   

86. The Court may also take into   when considering Post Office’s position as to the “robustness” of Horizon for the purposes of this...
           
               

   
   

… Common Issues trial the failure by Post
Office to act on the recommendations in the “REDACTED Action Summary” dated  
June   0  4. That document recommended:...
86.   The creation of a Horizon Management Council §4.   {G/40/  -3} “Since Horizon is a critical business function of the Post Office estate a management council should be created in order to ensure the ongoing oversight...
           
               

   
   

… management and support of this business critical infrastructure going forward, this is in addition to the current Information Security Management Forum.
           
               

   
   

... This group should meet quarterly, as a minimum, or after any significant change or issue.” Mrs Van Den Bogerd was unaware that any Horizon Management Council had been created...
           
               

   
   

…. which, given her position (and involvement in the Second Sight process and Branch Support Programme) clearly indicates that it was not.
           
               

   
   

86.   The creation of a complete document pack outlining at least a list of defined items, including a risk register. Mrs Van Den Bogerd could not recall ever having seen a risk register for Horizon ...
           
               

   
   

86.3 And under the heading “Financial Reviews”

“REDACTED Technical issues and connectivity issues will always be a risk within any technical environment and it is strongly advised that a program is put in place to undertake auditable controls..
           
               

   
   

… ongoing training, spot checks and regular reviews from Post Office's Audit department to make sure that errors in processing are kept to a minimum, and quickly identified.
             s
               

   
   

Recommended remediation: The creation of an audit program by Post Office's Finance department in order to review samples of data from sub- postmasters. ...
           
               

   
   

…. This would ensure consistency of  s and enable a higher chance of detecting errors in  s due to problems with Horizon.
             s
               

   
   

...Reports should be generated after each audit and used to improve the Horizon product, as well as provide auditable records of assurance; this should feed into the Horizon Management Council for considered remediation.”
           
               

   
   

86.4 Mrs Van Den Bogerd’s evidence was that she was not aware that was done – again given her position, this is consistent only with it not having been done.
           
               

   
   

87. The Court will also note in this June   0  4 document that Post Office internally recognised the possibility and risks of remote privileged access to data, which Mrs Van Den Bogerd agreed...
           
               

   
   

… (albeit commenting that she could not see what was being referred to in the redacted bit  – of course a problem the Claimants have also had with this document).
           
               

   
   

...The timing of this internal recognition is an important issue as to Post Office’s statements made about the ability to remotely access and edit branch  s, albeit not one directly arising in the Common Issues trial, hence the Claimants not pursing it further here.
           
               

   
   

The written submission by the claimants QC now turns its attention to “Investigation of apparent shortfalls”.
           
               

   
   

88. When Horizon was first introduced, transaction data was available to SPMs in branch for only 4   days. From   0  0 (being the date of introduction of Horizon online), transaction data is available for 60 days
           
               

   
   

89. The shortcomings of such a short period were expressly identified and considered by Post Office (in the context of considering Post Office’s own access to data otherwise held by Fujitsu)...
           
               

   
   

…  in a document with a disclosure date   6 June   0  3 entitled “Benefits of extending life of transaction data”, which included under the heading “business benefits”
           
               

   
   

“The business, in particular the Security and P&BA departments suffer from the inability to interrogate its data due to the short periods of retention. If we were to keep data for longer and for that data to be interrogatable the following areas should benefit:...
           
               

   
   

POca Claims and Disputes
Banking
Other product Claims and Disputes
Flag cases
Fraud and Conformance investigations
Proactive fraud identification (obviates the complexity costs of the Detica project…
           
               

   
   

… which if goes ahead will need to take inputs from multiple sources instead of just one single database)
Security investigations
Criminal investigations
SPMR Contract advisors – re non-conformance suspension hearings”
           
               

   
   

90. A SPM seeking data beyond the period of branch data would need to be provided with it by Post Office, who in turn would need to request it from Fujitsu.
             s
               

   
   

...The document above records that the cost of each request is £450 – giving rise to a commercial incentive on the part of Post Office not to routinely request this data.
             s
               

   
   

9  . It is clearly the case that TCs were issued outside of the 4   and 60 day branch retention periods, as illustrated by e.g. the provisions in the Working Agreement for e.g. 95% of stock TCs to be issued within 3 months and 95% of automated payment / personal ...
             s
               

   
   

… banking payments to be issued within    years, and specific provisions for TCs issued outside of the timescales in the document where they affect    than   0% of the network.
             s
               

   
   

9  . However, even when in branch data was available for the period which required consideration, diligent SPMs remained unable to identify the root cause of discrepancies in their  s using data available to them in branch.
             s
               

   
   

…. The most striking examples of this are:
9  .   Mr Bates’ experience of having been unable to ascertain the root cause of an alleged shortfall of £  ,  8  .8  , despite having printed all available reports and carried out all available investigations in branch...
           
               

   
   

… Post Office employees Selwyn Berry and Ki Barnes who attended the branch were also unable to provide any answers using the information available in branch.
             s
               

   
   

9  .   Mrs Stubbs’ efforts to find the cause of the apparent shortfall for £9,033, and in particular her evidence as to the attendance by Mr Gihir, a Post Office auditor, on   9 May   0  0, who observed Mrs Stubbs all day...
           
               

   
   

…. and carried out two cash declarations at 9am and   pm, which identified an apparent shortfall of £  90 had arisen during that time, the cause of which he could not identify...


   


   

9  .3 Mrs Stockdale’s efforts, including establishing parallel manual  ing, and CCTV.
               s
                       



   


   

95. There was certainly no facility for SPMs to print a spreadsheet of TCs equivalent to the TC spreadsheet which – when disclosed for this litigation – enabled Mr Abdulla to find significant issues with the TCs he had been issued in the period prior to his termination...
             
                       



   


   

Post Office could give no explanation as to why such a spreadsheet was not available to SPMs as a matter of course, Mrs Van Den Bogerd:
               s
                       



   


   

Q. Why can't you produce spreadsheets   this for subpostmasters in Excel for them to go through?
A. What we send is the actual transaction correction with the evidence that supports it. This is the internal   of the log, of what we keep.
             
                       



   


   

Q. Yes, but why can't you send an Excel spreadsheet so people get a chance to look at the piece as a whole and put it in context? So they have a better chance of finding out if something is going wrong, haven't they?
             
                       



   


   

A. We have not considered that before. We could look at something   that. It looks   -- you are referring to something   a monthly statement or even    than that ...
             
                       



   


   

96. The Court will note that this information was not even made available to Mr Abdulla during his final interview prior to termination – the document(s) he was shown during that meeting (and notably not before) were not even in date order, and did not contain the text of the TCs
             
                       



   


   

97. The ability of SPMs to investigate and resolve discrepancies was further hampered by the inadequacy of the training and support provided to them in these respects, addressed further below in the section Training and Support.
               s
                       



   


   

Let’s have a look at Training and Support then, shall we…?
             
                       



   


   

[NB this is from the claimants’ QC closing submission to the judge. The Post Office will be putting its case for   0 hours on Wed and Thu]

  08. Post Office’s evidence in relation to training was provided by Mrs Van Den Bogerd in her witness statement
             
                       



   


   

      . Notably Mrs Van Den Bogerd’s statement did not reference any of the training documentation which had been disclosed, nor in any respect acknowledge a...
             
                       



   


   

...ny deficiency at any time in the provision of training to SPMs. The Court may consider both of these matters to be surprising. When asked about the absence of any exhibits, her evidence was as follows:
             
                       



   


   

Q. I am just curious. In writing paragraph   04, you didn't go back to the underlying training materials, did you? Otherwise you would have done something a bit      in the claimants' witness statements where they identify the document as the source of each statement?
             
                       



   


   

A. So in terms of -- I didn't go back to every single stage
of that training, no.
             
                       



   


   

Q. Did you go to any of them?
A. Some of them, yes, and some of them -- I have got a very good knowledge of this anyway from myself being in
the classroom and actually being involved in some of those training documents over the years.
             
                       



   


   

Q. Since   00  , for example?
A. Since   00  , yes.
          s  
                       



   


   

      . As to the content of classroom training in   00  :
             
                       



   


   

      .   A document written by Sue Richardson (who Mrs Van Den Bogerd confirmed had a management / oversight role in respect of training), with a disclosure date of      May   0     explained the position she had found as to   00   training as follows:
             
                       



   


   

"I have managed to pull together an outline of the training support offered to new agents around   00  .
 This information has been provided by a number of people from across the business who have a background in training but don't necessarily still form part of our team….
             
                       



   


   

Detailed here is what I have found to be
 consistent across each of those conversations and we have managed to find some supporting documentation, however I can't substantiate any of this as all records
for individual agents are only held for 7 years
...
             
                       



   


   

… In   00   new agents didn’t have any formal classroom training but were invited in for two days ‘pre transfer training’ to go through some basics….
                s
                       



   


   

…  This really just involved some business awareness, customer care and use of the datestamp etc. We have no specific details of what was covered...
               s
                       



   


   

… This was followed by on site training for circa two weeks and a follow up balance...but we cannot find details of what was included… I don’t believe there was a record kept of what was and wasn’t covered – although I think there were action plans left at the office.”
             
                       



   


   

      .   When asked how Mrs Van Den Bogerd had been able to cover such matters in her witness statement, it became clear she had not had regard to any   00   documents, and amounted to Mrs Van Den Bogerd relying on her alleged but unsourced “experience” and “knowledge”.
             
                       



   


   

[The QC quotes his and AvdB’s exchange in court]
Q. How were you able to form a view, at the time of writing your witness statement, about what had been covered back then if she --
A. So the same in terms of my experience of what was in place from my knowledge…
             
                       



   


   

… but also talking to other people that were around at that point. But Sue would be right, there isn't anything -- and that is the problem
 with going back so far. We don't have any documentation to say what was in place.
             
                       



   


   

    3. In fact, documentation relating to   00   training had been disclosed. A fair reading of this documentation supports the Claimants’ case as to deficiencies...
             
                       



   


   

…  in training, and the absence of any training in relation to e.g. resolving problems with balancing or investigating discrepancies.
             
                       



   


   

    5. It further became apparent that Post Office as an organisation – and Mrs Van Den Bogerd personally, had recognised internally inadequacies in training provided to SPMs, including on this very issue of investigating discrepancies...
             
                       



   


   

… This was something which had been omitted from Mrs Van Den Bogerd’s witness statement, and something she was unwilling to volunteer before being taken to the documents


[back to their exchange in court]

Q. Can you tell his Lordship whether or not you were aware of inadequacies in training by   0  3?
             
                       



   


   

A. Not generally. There had been some -- from my involvement with the initial mediation scheme there had been some issues raised, and there would be some requests for follow-up training from NBSC into the Helpline….
             
                       



   


   

… But    broadly I can't recall that there was a wholesale problem with training.
             
                       



   


   

    6. The internal documents which the Claimants had been required to piece together painted a very different picture, and one which led to significant concessions by Mrs Van Den Bogerd:
             
                       



   


   

    6.   The “Branch Support Programme – Terms of Reference”, dated   9 July   0  3, which recorded that the Second Sight interim report “did raise questions about the training and support we have offered some subpostmasters….
             
                       



   


   

….  It has been acknowledged that this needs to be investigated further and improvements need to be made” and the scope of the Programme to include:...
             
                       



   


   

Post Office’s attitude to subpostmasters which is often defensive and unsympathetic, with a focus to recover assets rather than to identify the root cause of the problem. There is a lack of a subpostmaster “voice” or opportunities for them to raise their concerns.
               s
                       



   


   

Inadequate Helpdesk support with responses that are script based, coupled with a decrease in overall branch support

[this is an internal Post Office document btw]
             
Lack of timely, accurate and complete information provided to subpostmasters to support them in resolving issues.

Inexperienced trainers and gaps in training coverage...
… Lack of centralised data or files specific to each branch which hinders a
quality investigation from taking place. “
Point     6.   finishes with the statement:

"Mrs Van Den Bogerd was the Branch Support Programme lead."
             
    6.   A document headed “Operation Board Action – Training Approaches into the Network” with a disclosure date 7 August   0  3, stated that “the quality and quantity of training materials being launched in the network is an issue currently” and recommended...
             
…  “A new sign off board to be established to ensure quality and user friendliness going forward without risking the reputational brand of the Post Office”.
             
Mrs Van Den Bogerd stated she did not believe such a board was established (although suggested some of the training teams had been amalgamated into a    central team)    

The Court may reasonably infer from her position and involvement in the Branch Support Programme that the recommended sign off board was not established.
    6.3 A document headed “Camelot losses” with a disclosure date   0 August   0  4 recorded that whereas 78% of new offices scored Camelot training on the lottery to be good and only 0.8% saying they required further training… [but]
             
… 65.87% of new offices stated that they needed    training on Horizon and only   5.38% scored the training they received on Horizon as good.    

    6.4 The Second Sight report (Part Two) dated 9 April   0  5 recorded that concerns relating to training and support were raised by over   30 of the   50 applicants
             
Okay let’s move onto the Helpline and Support.

    8. The LCs’ individual evidence as to the problems they encountered when balancing or seeking to resolve shortfalls, and the absence of effective assistance from the Helpline was compelling….
             
Their evidence was consistently that the Helpline did not provide them assistance when it was most needed, and that responses were script based and unhelpful.    

    9. Post Office’s position throughout this litigation (and the wider narrative e.g. in response to Second Sight) has been to the effect that the Helpline is an effective means of support to SPMs, and that it does not provide script based responses.
      . The Court is invited to find that contrary to GDEF “Helpline operators do not give script-based responses” (and the narrative on this issue consistently adopted over time e.g. in Post Office’s response to Second Sight the Helpline clearly did use scripts….
             
                         … The Claimants’ rely on:

      .   The LC [lead claimant] evidence to that effect:
“It seemed   very much a generalisation, the response I was getting,   it had been read off a script, off a screen, as simple as that. It didn't particularly relate to my circumstances at the time."
             
"There was very limited I could do. I would just have to wait for transaction corrections to be reversed. There was the Helpline that I mentioned before was absolutely -- not very helpful. It just seemed   they were going through a flow diagram or step-by-step guide."  

      .   The fact that Post Office’s position as e.g. explained in the Letter of Response amounts to a distinction without a difference. Reading from an article is to all intents and purposes giving a script based response.
[letter of response:]
"(“Script based responses. The allegation that responses from the NBSC were “script-based” is not correct. NBSC call handlers listen to the question or questions posed by postmasters and categorise the call on an online system called Dynamics….    

… This allows them to access articles on the Post Office Knowledge Base – an online “bible” containing information on how to deal with Horizon queries – relevant to the precise query raised. ...
             

   

… The call handler then uses the relevant article or articles to inform the advice they give to the caller.”)
      .3 The email from Sharon Merryweather (PA to George Thompson, NFSP) dated 3 May   0     refers to scripts (emphasis added) ”Just had another chat to Sarah Barnett. She did receive a call from...


… a Susan Ellis who did her best, but her   was that they were waiting for new scripts to read to people in her situation who did not register their wish to sell before    April, but now want to.”

      .4 Mr Beal’s evidence provided further clarity on this issue:
Q. That is because scripts were provided to people on the Helpline in order to give them some standard wording to answer certain enquiries?    

A. Scripts were provided in order for them to be able to answer the questions that were being asked of them. That would be in order to make sure the answers they were providing were consistent.
MR JUSTICE FRASER: Were they scripts provided by the Post Office -- A. Yes.

Let’s have a look at what the claimants’ QC has to say about Business Plans. Business Plans are what prospective SPMRs have to submit to the Post Office in order to win their approval...
                4  . Mr Dance was a wholly unsatisfactory witness. Despite giving evidence in respect of business plans and their financial assessment generically, his witness statement dealt only with the business plans for ...
             
… Mrs Stockdale and Mrs Dar – apparently these having been provided to him by Post Office’s solicitors...
             
– although Mr Dance knew that earlier versions were very different. Mr Dance’s oral evidence was also confused and contradictory as to whether he had looked at the business plans of earlier LCs [lead cliamants] prior to preparing his witness statement.
             
… Mr Dance had chosen to give no meaningful evidence about the financial assessment of business plans (even for Mrs Stockdale and Mrs Dar) – and the documents he exhibited were all but meaningless.

… Evidence he gave in his statement about Post Office practices was also flatly contradicted by Post Office’s other documents and witnesses.    

…   44.   Post Office required SPMs to sign a declaration that the information provided by them in these business plans was true and accurate and had been prepared with reasonable care  - and...
…  Mr Dance ‘s position was providing untrue or inaccurate information would be a potential breach of contact, and that Post Office included the declaration “very much” with a view to relying on it as against the applicant...
  44.   In contrast. Post Office itself adopted a policy of ever increasing disclaimers in the standard form business plans it sent to SPMs for them to complete and – for reasons above – on which they expected them to rely.
             
  44.3 The version of the business plan sent to Mr Sabir for his Crossflatts application on the one hand expressly described the business plan as “a monitoring tool for you”, and provided all cosy guidance and basic explanations...    

… yet on the other, included a disclaimer of liability “for any act or omission, negligent or otherwise and for any negligent mis-statement, on the part of itself, its employees or agents in connection with this business plan”
  45. Mr Dance stated that he was unaware of any particular sensitivity around this time which led to the introduction of a disclaimer by Post Office, but the introduction of such a disclaimer and its ever increasing evolution...
….   45. Mr Dance stated that he was unaware of any particular sensitivity around this time which led to the introduction of a disclaimer by Post Office, but the introduction of such a disclaimer and its ever increasing evolution...    

… and... certainly indicates a defensiveness on the part of Post Office.
             
  46. A clue to this defensiveness may lie in the fact that, unbeknownst to SPMs, Post Office, in its own financial assessment of business plans, as a matter of policy included…

… provision for £  ,500 of “losses“ being incurred in the first year. The degree of secrecy surrounding this policy, and the work required on the Claimants’ part to reveal it, is itself significant:    

  46.   This policy has never previously been explained by Post Office, and was not explained in Mr Dance’s witness statement.
                       
  46.   The Claimants only became aware of this as an issue when reviewing the disclosed financial assessments for Mr Sabir and Mr Abdulla, both of which on careful review, made provision for “Other Cash Impacts” of £  500 losses...
…. – but without explanation in the version of those documents as disclosed.
  46.3 On further detailed review, it became apparent that both of the financial assessments disclosed for Mr Sabir and Mr Abdulla were in fact missing an internal p  , which the Claimants were able to track down in order to discover…

[NB in this written statement the QC refers to “Claimants", which seems to be conventional shorthand for "Claimants’ solicitors”]
…. (by reference to another individual’s financial assessment) Post Office’s policy that “The provision is based on 5% of first year salary up to a maximum of £  ,500. Discussions with retail network managers indicate that this is a reasonable allowance in the first year.”
  47. The internal Post Office policy to make provision for losses is to be contrasted with the content of the standard form business plans in fact provided to SPMs, which:    

  47.   In the versions sent to Mr Bates and both versions sent to Mr Sabir, there was no line for losses in the pro forma versions sent. Their absence is important given the guidance given to applicants to study the pro formas….

  47.   When asked as to the thinking about whether there should be a line for losses in the versions sent to Mrs Dar and Mrs Stockdale, Mr Dance took personal credit for the initiative to include lines...
             
                       



   


   

... for losses and retail shrinkage as they appear in the version sent to Mrs Stockdale:
[doc now goes back to transcript]
Q. So what was the thinking as to whether there should be a line for losses in these plans?    

A. Sorry. Basically it is a key part of a business. The thought was that a pro forma that didn't include losses, it would be useful for an applicant to at least consider that as a possibility. And it had both losses and also retail shrinkage was introduced….    

...Q. So here, as I understand your earlier answer, you thought it was important to include a line for losses, so that they at least considered that has a possibility?
   A: Yes. In part of running a business, when I came to this I thought, actually, it is a cash business. In any retail business there is always a risk of losses of some sort. …

… Not just cash, losses could include losses on disposal, so if you sell an asset you might lose money. It is something to factor into managing a business.    

MR JUSTICE FRASER: So was it your initiative or idea to include a line for losses?
A. Losses and retail shrinkage was something I said we should definitely have going forwards.
             
  47.3 However what Mr Dance could not explain, was why, the later version sent to Mrs Dar, the line for losses had been removed.

Back in Court   6, the legal discussion between the Judge and the Claimants’ QC continues. They are essentially talking around the permissability of certain judgements with regards to case law and then whether or not they can be applied to Bates v Post Office.    

They’ve been doing this all day. The claimants’ QC Patrick Green has suggested that he hopes to be done with “Authorities” before the end of the day save some on “Agency” which he will deal with tomorrow.
             
It is dry, but very necessary. This is a wide-ranging case and it touches on a huge number of different areas. Judging by the sheer amount of time expended on it by both QCs, his Lordship’s interpretation of contract law is going to have the biggest bearing on the outcome…

… of this trial. So the JFSA QC is busy trying to explain his perspective on the meaning of certain rulings and where they leave areas still open to further interpretation. ie the tramlines within which the judge can make a ruling.
I have no idea what the Post Office defence closing submission will be, but I expect that Mr Cavender QC will have very different ideas as to how the judge should interpret the existing case law and apply it to this trial.
                       

You’ll hopefully forgive me if I dive back into the Claimants QC’s closing submission. I’m about a third of the way through, picking and choosing the interesting bits to tweet… funnily enough, we are onto "Contractual Terms"
             

No Notice of Terms in Context
  49. SPMs were committed to and did contract with Post Office well before they had any chance to know or understand Post ...
… Office’s practices or procedures in relation to branch  s, transaction corrections, or ways in which they may be held to be liable for apparent shortfalls in  s on Horizon….

… Although the appointment processes have changed over time, these elements have remained constant. To the extent SPMs were informed about contractual clauses re: liability for losses, this notice was in no way effective in giving notice of what those clauses meant in reality.

  50. None of the precontractual information provided to SPMs included information to them to enable them to understand the content of what they were actually agreeing to in respect of Post Office’s procedures for balancing and  s, particularly …

… as to forced rollover, the absence of a means within Horizon to dispute at TC or an apparent shortfall, and the restricted options available to a SPM to accept and pay by cash, cheque or settle centrally.
             
The Claimants rely on the absence of this information from all pre- contractual documents before the Court, and the evidence of Mrs Rimmer [PO witness] that she was unaware of any such notice having been given…

… nd her necessary acceptance that absent such notice, any advice about the significance of those matters in the context of the contacts in advance of contacting could not have been obtained.
[Claimants QC has just said tomorrow he is going to address Agency and  s, a small amount of law and quite a lot of Fact and a response to the defence. I suspect therefore it will be a lot    interesting than today.]


I think we are finished for the day. We are onto housekeeping.

The housekeeping is minor mistakes submitted in his lordships bundle of authorities.

                       

We are going to start at   10.30am again tomorrow.

I’m going to post up my live tweets and the Claimants closing submission (which is very much worth reading) on http://www.postofficetrial.com  tonight, plus a write-up. But honestly, today was dry as dust. Thanks for the support and thanks for the donations.

Bye now!

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