Post Office Trial: Common Issues trial transcript: Day 13

This is the unperfected transcript of the 13th day of the Common Issues trial in the Bates and others v Post Office group litigation.

It was slightly less painful to sit through than day 12, which hurt my brain a great deal.

It is the second day of closing submissions from the claimants' QC Patrick Green, and should be read alongside Mr Green's written closing submission, which you can read on Scrib'd via this link or embedded on this blog here.

This is the menu for the other transcripts and the Common Issues Trial Menu which has links to my write-ups and more documents:
Common Issues trial menu
Day 1 transcript - Wed 7 November - Opening arguments
Day 2 transcript - Thu 8 November - Claimants: Alan Bates, Pam Stubbs part 1
Day 3 transcript - Mon 12 November - Pam Stubbs part 2, Mohammad Sabir
Day 4 transcript - Tue 13 November - Naushad Abdulla, Liz Stockdale
Day 5 transcript - Wed 14 November - Louise Dar
Day 6 transcript - Thu 15 November - Post Office: Nick Beal, Paul Williams
Day 7 transcript - Mon 19 November - Sarah Rimmer, John Breeden, AvdB part 1
Day 8 transcript - Tue 20 November - AvdB part 2
Day 9 transcript - Wed 21 November - AvdB part 3, Timothy Dance, Helen Dickinson, Michael Shields part 1
Day 10 transcript - Thu 22 November - Michael Shields part 2, Elaine Ridge, David Longbottom, Michael Webb
Day 11 transcript - Mon 26 November - Michael Haworth, Andrew Carpenter, Brian Trotter
Day 12 transcript - Mon 3 December - Claimants' closing argument: Patrick Green QC - part 1
Day 14 transcriot - Wed 5 December - Post Office closing argument: David Cavender QC - part 1
Day 15 transcript - Thu 6 December - Post Office closing argument: David Cavender QC - part 2
Day 13 transcript follows:
                                       Tuesday, 4 December 2018

   (10.30 am)

           Closing submissions by MR GREEN (continued)

   MR GREEN:  My Lord, today I propose to deal with some

       particular issues rather than absolutely everything,

       because I hope we have done quite a detailed closing .

           I am going to very briefly deal with Autoclenz and

       the true agreement, which parenthetically your Lordship

       will note your Lordship has to have regard to the

       conduct of the parties throughout to reach a view on

       that.

           Then deal with agency and accounts, and in relation

       to that your Lordship will also appreciate that on the

       case law, the court is entitled to look at what happens

       after the supposed date of creation of the agency

       relationship as well as at inception, and we say that is

       particularly important where your Lordship is being

       asked to look at not just the creation of relationship,

       but the question in Common Issue 13 about whether the

       subpostmasters are bound by the account, so that is

       particularly important, and that is on House of Lords

       authority.  So you have look across the piece of the

       evidence on that in any event.  There is a wrinkle in

       relation to that because of course agency is going the

       other way on our case, with Post Office acting on our

       behalf, and your Lordship can only identify that from

       the evidence across the piece in any event.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  There is a further wrinkle in relation to that

       because it is my learned friend's slightly qualified

       position that the contractual interpretation sits atop,

       in his words, the agency relationship, and that is

       a phrase he uses in opening and closing, and that the

       agency --

   MR JUSTICE FRASER:  Could you give me just one second,

       Mr Green.  Please go on.

   MR GREEN:  And that the common law agency principles which

       are imported from the agency relationship actually

       affect how your Lordship should construe the contract.

           We respectfully say that is not right but, if my

       learned friend is right, he is actually directly arguing

       for your Lordship to have to look across the piece at

       the agency relationship before you can construe the

       contract.  So he is arguing that your Lordship has to

       decide an issue which there is high authority for saying

       you can look at conduct throughout first to determine

       the contractual position at inception, so that is his

       analysis --

   MR CAVENDER:  My Lord, can I say that is not my analysis.

   MR JUSTICE FRASER:  I understand, Mr Cavender.  Even if he

       were trying to get me to do that, that is contrary to

       orthodox interpretation of contracts and I'm not going

       to be doing that.

   MR GREEN:  I am grateful.  What I was about to say was he

       seeks to qualify it by saying the agency can be varied

       by contract and therefore the conduct doesn't matter.

       We respectfully say --

   MR JUSTICE FRASER:  I think the best way of approaching it,

       I have never found it very helpful when somebody tells

       me what someone else's case is, so I think we will

       approach it on the basis that you tell me what your case

       is and I'll let Mr Cavender tell me what his is.

       Because it is unlikely you will be presenting what his

       case is in an entirely unpartisan way.

   MR GREEN:  Indeed.  So agency in any event, both the nature

       and scope of the agency of subpostmasters, where they

       are bound by accounts stated in the branch trading

       statements, and Post Office's agency which I have

       already dealt with.

           Then the third topic is liability for loss

       provisions.

           Then finally responding to a number of key planks

       and key points raised in the submissions -- my learned

       friend's submissions on the evidence and related issues.

   MR JUSTICE FRASER:  Yes.  And you will leave a little bit of

       time at the end, I hope, for me to ask you some

       questions.

   MR GREEN:  My Lord, yes.  If there are any particular points

       your Lordship thinks you might like me to help with, if

       you are able to identify them before lunch I might be

       able to give a --

   MR JUSTICE FRASER:  I keep a running list of them, and only

       the ones that are as yet unanswered will I need to put

       to you at all at the end.

   MR GREEN:  I am most grateful.

           My Lord, can I begin with the Autoclenz point which

       I will deal with quite shortly. {A1.1/39/1}

           As your Lordship knows, the Autoclenz analysis

       depends upon the court, in the light of the imbalance of

       bargaining position between the parties, finding it

       appropriate to look at what the true agreement really

       was.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  That is not an exercise which the court will do

       in an arm's length transaction between genuine

       commercial parties, but the closer you get to

       employment, the more ready the court will be to do so,

       and you have to be -- I will fairly accept -- pretty

       close to employment for the court to embark on the

       exercise and we say we are well in that zone.

           The issue as to Autoclenz and the true agreement

       arises in relation to what the true agreement was as to

       termination.  My Lord, if I can ask your Lordship to

       look in our closing submissions at page 84 to 85 in

       the fact section, the first section {A/6/88},

       your Lordship will see from the top right-hand corner of

       these pages this is in the A(1) generic evidence part of

       section A and under the subheading "Relationship between

       Post Office and SPMs", and it is within the section that

       begins at 82 which is a further subheading "Expectations

       re Termination".  This outlines the evidence about

       pre-contractual expectations of individual

       subpostmasters and the actual practice over time of

       Post Office.

           At 194 and 195 {A/6/88}, my learned friend

       emphasised in his oral opening the degree of reciprocity

       in the notice period as a factor counting against

       an Autoclenz analysis that the true agreement wasn't

       really that Post Office could and would terminate on

       three months' notice for no reason.

           Indeed, it is interesting, my learned friend's

       written opening refers to terminating when something

       goes wrong in the branch.  So we respectfully say that

       looked at across the piece, the reality is that no one

       ever expected Post Office to terminate on three months'

       notice without cause, and when they did terminate when

       the cause was some sort of network change programme --

   MR JUSTICE FRASER:  They paid compensation.

   MR GREEN:  They paid compensation.

           Your Lordship will notice at 195 {A/6/89} we have

       identified the evidence of outgoing SPMs being

       effectively forced to stay in post until Post Office was

       ready to make the transfer.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  That was evidence your Lordship heard and will be

       able to form a view about how it came out.  And it

       was -- it was pretty compelling in that that was assumed

       by the witnesses, defendant's witnesses, to be the norm.

           So your Lordship will see at 195.4 on page 86

       {A/6/90}, just casually Mr Trotter's evidence at the

       end, final witness, and that answer there:

           "Yes, but he could only leave on the condition he

       found a new agent."

           That is nowhere found in the written terms and we

       say, respectfully, that is the reality of the true

       agreement.

           My Lord, pausing there, there are two other quick

       points.  One, we did actually locate the EAT decision

       that appears to be the appeal from the case in which

       Mr Williams gave his evidence which he refers to at page

       {C2/9/9} in his witness statement.  And that authority

       is called Sheehan v Post Office, I do not think anything

       turns on it.

   MR JUSTICE FRASER:  Just in terms of historical development.

   MR GREEN:  It's at {A2/64/1} on Opus, in case --

   MR JUSTICE FRASER:  What is the reference?

   MR GREEN:  It's {A2/64/1}.  So that is 1998 and I think

       Mr Williams thought he was involved in the employment

       tribunal that probably gave rise to this immediately

       before that.

   MR JUSTICE FRASER:  Is that the Weeklies?

   MR GREEN:  That is --

   MR JUSTICE FRASER:  If you go to the next page. {A2/64/2}

   MR GREEN:  I think it might be the -- yes, ICRs.

   MR JUSTICE FRASER:  ICR 735.  Thank you very much.

   MR GREEN:  The only two observations, so your Lordship has

       context for it, it wasn't actually the ordinary

       employment test, it was the DDA test.

   MR JUSTICE FRASER:  I don't need the context.  I will read

       it.

   MR GREEN:  I am grateful.

   MR JUSTICE FRASER:  It is really just -- it is a historical

       footnote, almost, in terms of the way everyone -- well,

       not everyone, in terms of the development of that

       personal service and/or 18 hours and/or not.

   MR GREEN:  Practice or whatever it was.  The only point for

       your Lordship to bear in mind in Autoclenz is that it

       was the practice of requiring -- in Autoclenz it was

       Mr Hassell's witness statement at paragraph 18 which was

       said by the employment tribunal to amount to requiring

       people to notify him if they weren't coming in the next

       day, because they were going to the football or had

       a family event or whatever it was.  And that was said to

       amount to the true agreement that there was

       an obligation to work unless you notified him so that

       was the footing which at the time I opposed.

           But what is interesting in this case is there is

       actually a clause in the contract --

   MR JUSTICE FRASER:  "In this case" being --

   MR GREEN:  The Post Office case.  There is the obligation to

       notify if you are going to be away for three days or

       more from the branch.  So there is a contractual express

       term in this case in relation to absence of three days

       or more in circumstances where, in Autoclenz, there was

       nothing more than a practice that on one view was

       capable of being characterised as just a practical

       necessity to know who was showing up the next day, it

       could be one argument, but the Supreme Court was

       satisfied that that was enough to say that effectively

       the true agreement was --

   MR JUSTICE FRASER:  That is fine so far as individual

       postmasters are concerned.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  But they are not all individuals, are

       they?

   MR GREEN:  My Lord, they are not all individuals.

   MR JUSTICE FRASER:  Some are companies.

   MR GREEN:  The massive majority of them are individuals.

   MR JUSTICE FRASER:  I know that.  But they are not all

       individuals.

   MR GREEN:  They are not all.  Indeed.

   MR JUSTICE FRASER:  So what is the situation vis-a-vis the

       corporate subpostmasters?

   MR GREEN:  The clause in the SPMC, which we can just locate,

       doesn't appear to distinguish --

   MR JUSTICE FRASER:  That is rather why I am asking the

       question.

   MR GREEN:  -- between the two.

   MR JUSTICE FRASER:  That is why I am asking the question.

   MR GREEN:  So there is perhaps unusually a provision there

       that appears to be directed at requiring whoever the

       appointed subpostmaster is, presumably --

   MR JUSTICE FRASER:  But a company cannot perform personal

       services.

   MR GREEN:  Quite.  So the true agreement really is where the

       person sets up, that clause appears to be directed at

       the actual person behind a company unless -- multiples

       are different, have different terms, which we are not

       dealing with, but it appears to be directed at the

       individual person who set up the company to be the

       contracting party --

   MR JUSTICE FRASER:  Could that be right?  Because the

       individual person in that situation wouldn't be the

       contracting party, would it?

   MR GREEN:  My Lord, I agree that --

   MR JUSTICE FRASER:  Are there any claimants who are

       corporates, not multiples, on the SPMC, not the NTC?

   MR GREEN:  I will give your Lordship an answer.

       I don't know the answer.

   MR JUSTICE FRASER:  You will have to check.

   MR GREEN:  I will check that.  What that point really goes

       to is --

   MR JUSTICE FRASER:  "That point" meaning my point or your

       point?

   MR GREEN:  My point.  What it goes to is this very close

       proximity in the nature of the relationship created to

       an employment situation.

   MR JUSTICE FRASER:  You argue that, and you argue as

       a result of that the Autoclenz process should be

       applied.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  As I understand it.  And your main

       feature is the nature of or requirement for personal

       service and its closeness -- you don't argue they are

       employees, but its closeness to an employer/employee

       relationship.

   MR GREEN:  Indeed, and it has all the indicia, control, all

       these other indicia.  It is right to note that it is not

       merely close to an employment relationship because

       I think as Mr Abdulla said in response to my learned

       friend, "Yes, but hold on a second" -- when the

       employment analogy was put to Mr Abdulla, he said "Hold

       on a second, I have invested a huge sum of money in

       this".

           So it is not merely the situation of employee, but

       the relationship in terms of the proximity and control

       and the nature of the relationship created is very close

       to an employment relationship, which is why there is

       such sensitivity about not using the word and so forth.

           So that is the background to that.

           My Lord, furthermore, one can think of two clear

       examples where, if we look at {D2.1/3/85}, this is an

       express term in the SPMC which is "Non-Observance of

       Rules: Appeals Procedure".  Clause 1 recognises there

       may be times where it is not appropriate, but the normal

       rule is:

           "... any subpostmaster will be afforded

       an opportunity of giving a written explanation of

       allegations of non-compliance or non-observance of rules

       ..."

           And then 2:

           "At the discretion of the retail network manager

       which will not normally be withheld, the subpostmaster

       may, if he wishes, meet the retail network manager to

       discuss the allegations, he may be accompanied by

       a friend while doing so."

           Et cetera.

           And then 3, this is important:

           "As repeated breaches of the rules, even if minor in

       themselves, may lead to the determination, without

       further warning or appeal, of the contract by the means

       of giving of three months' notice, it is strongly

       recommended that subpostmasters take the opportunity to

       make such written and verbal explanations ..."

           You just can't reconcile that even on the express

       terms, before you get into the wider Autoclenz

       consideration, it is absolutely plain from the express

       terms of the contract that it would not be open to

       Post Office to say, "Yes, he is trying to appeal, but we

       will just dismiss him anyway on three months' notice

       because we can".  You can't reconcile that with even the

       express terms --

   MR JUSTICE FRASER:  Sorry, what can't you reconcile with

       what?  You can't reconcile 18.3 with what?

   MR GREEN:  You can't reconcile 18 as a whole with

       an unfettered right to terminate on three months'

       notice.  And the whole language -- so the first point is

       you can't reconcile it.  It cannot be -- as pure

       contractual construction it cannot be right that,

       for example, when someone says they want to meet the

       retail network manager, at 2, he goes, "Actually I will

       just dismiss him on three months' notice, because

       I can".  It just cannot be right.  Not available.

           And secondly the whole language of this, and one

       sees it elsewhere in the contracts as well, is in

       reality focused on dismissing even on three months'

       notice for cause and not for no reason.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  So my Lord, those are the key points in relation

       to Autoclenz.

           Now turning to agency and accounts.  My Lord,

       can I begin with the witness statement of

       Angela Van Den Bogerd at paragraph 142.

   MR JUSTICE FRASER:  142.  Yes.

   MR GREEN:  If I could locate my copy it would be easy for me

       to refer to.  It's {C2/1/39}.  Your Lordship will see

       the words at the beginning of that paragraph.

   MR JUSTICE FRASER:  "Solely responsible".

   MR GREEN:  Yes.  There are a few points in this passage from

       142 to 145 which merit noting:

           "Subpostmasters are solely responsible for their

       branch accounts."

           Then second sentence:

           "There is no transaction that enters their accounts

       without their consent (or their consent by proxy through

       their assistants)."

           And two points in relation to that.  Your Lordship

       already has the "accept now" point and forced rollover

       which I will go to in a little more detail.  But there

       is also the other points of transactions entered by,

       for example, Mrs Guthrie on branch transfer day or by

       an auditor when a subpostmaster is not in the branch.

           There is also the training to enter fake

       transactions for the stamps that have not been sold, or

       transactions that may be fake, in order to --

   MR JUSTICE FRASER:  Balance the books.

   MR GREEN:  Balance the books in the way that Post Office

       requires.

   MR JUSTICE FRASER:  That was on -- I know it was explored

       a little bit with one or two of the witnesses -- the

       direction on the laminate or the two-page laminate.

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  Is that what you are referring to as

       a fake transaction?

   MR GREEN:  Yes, the --

   MR JUSTICE FRASER:  Because "fake" I think is your word.

   MR GREEN:  Sorry, we refer to it in that sense, in the sense

       that --

   MR JUSTICE FRASER:  I know that is your case.  But that is

       your word.

   MR GREEN:  It is my word, but it is --

   MR JUSTICE FRASER:  The --

   MR GREEN:  It is a transaction that may not have happened.

   MR JUSTICE FRASER:  Well, it's probably best to explore it

       with the document on the screen.

   MR GREEN:  {F4/18/1}.

   MR JUSTICE FRASER:  It's the amendment of stock

       discrepancies at item 5, isn't it?

   MR GREEN:  Indeed, it is.

   MR JUSTICE FRASER:  That is what you are referring to as

       a fake transaction.

   MR GREEN:  Indeed.  It may not be of, coincidentally, the

       stamps were sold and money wasn't taken, for example, or

       vice versa.

   MR JUSTICE FRASER:  I don't understand what you mean.

   MR GREEN:  When --

   MR JUSTICE FRASER:  What do you mean, it may not be?  Sorry,

       you mean it may not be a fake?

   MR GREEN:  If it coincides --

   MR JUSTICE FRASER:  No, is that what you mean, it may not be

       a fake?

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  That is rather why I was exploring the

       origin of the word "fake".

   MR GREEN:  It could be a stock shortage sent through which

       a subpostmaster hasn't spotted.

   MR JUSTICE FRASER:  What this is, this is a direction,

       instruction or advice, however one wants to describe it,

       of how a subpostmaster or postmistress, following the

       balance procedure, should deal with a stock discrepancy,

       isn't it?

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Right.

   MR GREEN:  If we can go back to Angela Van Den Bogerd's --

   MR JUSTICE FRASER:  You are characterising it as fake

       because it is as if Mr Smith has come in and bought the

       book of stamps even though he hasn't.

   MR GREEN:  Precisely.  That is the meaning of fake.

   MR JUSTICE FRASER:  It is dealt with in stock terms as

       though there was a person there.

   MR GREEN:  Precisely, yes.  So the actual status of what is

       in fact in the branch is changed in the accounts to make

       Horizon then match the previous stock deficit to now

       being a cash deficit, when in fact that is not what

       happened in real life, or may not be.

   MR JUSTICE FRASER:  So you are saying the effect of that is

       what was a stock deficit would become a cash deficit.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Because Mr Bloggs with his £2.88 at the

       desk doesn't actually appear, and he doesn't have £2.88,

       and he doesn't give it to the subpostmaster.

   MR GREEN:  Precisely.  And if we look at {Day8/143:9}.

   MR JUSTICE FRASER:  Yes.  Cross-examination of ...

   MR GREEN:  This is cross-examination of Mrs Van Den Bogerd.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  And if we look at page 143, she ...

   MR JUSTICE FRASER:  She agrees, what, the point you put to

       her at line 9?

   MR GREEN:  Precisely.  And she has agreed, I hope it is not

       unfair to call it a fake transaction in that sense.

   MR JUSTICE FRASER:  I don't think --

   MR GREEN:  It may not be helpful.

   MR JUSTICE FRASER:  I don't think it takes it any further.

       It is not a sort of enormous forensic breakthrough that

       you used the word "fake" in the question and she said

       yes.

   MR GREEN:  Indeed.  But the point is that the possibility

       that it doesn't represent a real transaction ...

   MR JUSTICE FRASER:  Well, it plainly doesn't.  If "real

       transaction" is interpreted as meaning Mr Miggins

       turning up with his £2.88, then it plainly doesn't.  But

       it represents a real transaction in the sense of how

       in fact the Horizon system is instructed by use of the

       different functions.

   MR GREEN:  It does.

   MR JUSTICE FRASER:  Because that is what is supposed to be

       done to amend a stock discrepancy.

   MR GREEN:  Indeed.  So it is a real transaction in the sense

       required by Post Office.

   MR JUSTICE FRASER:  In those circumstances.

   MR GREEN:  In those circumstances, precisely.

   MR JUSTICE FRASER:  What Mr Cavender is likely to say, and

       I'm not going to put words into his mouth, is the reason

       for that discrepancy is something that has arisen as

       a result of the fault of the subpostmaster or

       assistants.

   MR GREEN:  Yes.  And your Lordship will appreciate that we

       have identified that there may well be --

   MR JUSTICE FRASER:  Other causes.

   MR GREEN:  -- other causes.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  So that is our case.

           But the reason for, if we can go back to

       Angela Van Den Bogerd at paragraph 142 on page

       {C2/1/39}, this is the case as advanced more broadly by

       the defendant that subpostmasters are solely responsible

       for their branch accounts and there is no transaction

       that enters their accounts without their consent:

           "This includes transaction corrections issued by

       Post Office which must be accepted by the subpostmasters

       before they form part of the branch accounts."

           Pausing there, that is not correct on the evidence.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Your Lordship has heard the evidence of why it is

       not correct.  The requirement that the "accept now"

       button is selected first.  We have dealt with this at

       pages 18 to 23 in our closing submissions at {A/6/22} to

       {A/6/27}.

   MR JUSTICE FRASER:  Do you mean in a sense 142, 143 and the

       footnote {C2/1/39} encapsulates, in summary terms, the

       difference between the parties in the litigation,

       doesn't it?

   MR GREEN:  My Lord, yes.  Subject to the fact that the

       defendant is keen to say that the only possible errors

       are Horizon-generated errors, keen to frame it as

       subpostmaster's fault or a Horizon-generated error,

       closing one eye to all the other potential sources of

       error.  So that is quite an important part of the piece,

       because the subpostmaster being notified of a

       transaction correction, which they don't know the cause

       of and can't readily identify the cause of, doesn't know

       why it is wrong.  That is the whole vice of their

       position in that situation.  So they don't know whether

       it is client data or someone making a decision on

       reconciliation who has accidentally put minus where it

       should be plus because they are the wrong way round.

       See Mr Abdulla, the credit.  Or a duplicate entry of

       lottery TC for £1,092, which has either been

       automatically generated by some glitch or manually

       repeatedly entered month after month.  It looks

       automatic, we don't know.  But the subpostmaster doesn't

       know either.

           So the subpostmaster, when they don't know what the

       cause of a transaction correction or a discrepancy is,

       is not well placed to identify whether it is

       a Horizon-generated error per se or an error presented

       to them on Horizon, the Horizon system.

   MR JUSTICE FRASER:  But the final sentence of paragraph 143

       also summarises the gulf between the parties because of

       the part "and not disputed", because what Post Office's

       case is, take Mrs Stubbs as an example, Post Office's

       case is whatever the mechanism by means of how one

       enters the data, presses the buttons, if you settle

       centrally you can dispute it.

   MR GREEN:  Yes, after it has crystallised as a debt in your

       customer account.

   MR JUSTICE FRASER:  That is your characterisation of it.

       I am not making any findings at all at the moment on it

       because at the moment --

   MR GREEN:  It is at large --

   MR JUSTICE FRASER:  -- nothing has been decided.  You say

       even if you settle it centrally, you crystallise it as

       a debt, and the evidence shows that it goes straight

       into the debt collection procedure and is pursued as

       though it were a debt.

   MR GREEN:  Indeed, and that is the defendant's evidence.

   MR JUSTICE FRASER:  In terms of letters that make no

       reference to fault and simply demand it as a debt.

   MR GREEN:  Precisely.

   MR JUSTICE FRASER:  The Post Office's case is that when

       something is disputed, it is then looked into to

       a greater or lesser extent, but because of the inference

       that one can draw from the robustness of the system, it

       is for the subpostmaster or postmistress to -- they are

       uniquely placed to identify if it genuinely is.

   MR GREEN:  Indeed.  And that is the point at 145, as

       your Lordship has pointed out, that encapsulates one of

       the limbs of the defendant's case as to how the

       liability loss provision should be construed.  Because

       93 and 94 obviously pray in aid that these matters are

       peculiarly within the knowledge of the subpostmaster.

   MR JUSTICE FRASER:  Sorry, 93 and 94 of what?

   MR GREEN:  In the Generic Defence, the famous 93 and 94

       {B2/2/42}, which I will briefly show you again but not

       for long because I think you have seen it probably more

       than enough.

           But the "peculiarly within the knowledge" point is

       closely adjacent to the suggestion that the

       subpostmaster is best placed to investigate shortfalls,

       and Post Office generally cannot find the root cause of

       a shortfall without the subpostmaster's co-operation.

           It is quite a careful sentence, that, because whilst

       it may be difficult for Post Office to find the

       shortfall without the postmaster's co-operation, the

       care taken in drafting that reveals the fact that, as we

       know from, for example, looking at a simple Excel

       spreadsheet in Mr Abdulla's case, it is much easier to

       understand the significance of a particular entry when

       you see them all in context.  And when the narrative of

       the transaction correction is there and you can compare

       them all easily and they are, for example, in date order

       which, when presented from the documents we were shown

       at the termination meeting, the items weren't even in

       date order.

           So it is absolutely obvious that Post Office is able

       to investigate.  They are able to get ARQ data from

       Fujitsu although they are not wildly keen to do it

       because there is a cost of £400 to £500 every time they

       ask.  That is because of how they have procured their IT

       system, not because of any innate ability of

       subpostmasters to guess at what that data might reveal.

           There are other systems which allow Post Office to

       investigate and even in advance to monitor matters

       remotely away from the post office as to what is

       happening as we see at {Day7/166:6} onwards.

   MR JUSTICE FRASER:  Is this --

   MR GREEN:  This is Mrs Van Den Bogerd.

   MR JUSTICE FRASER:  When you say "monitor matters remotely

       away from the post office", do you mean the branch post

       office?

   MR GREEN:  Away from the branch, I should have said.

           We can see that for example at page 166 -- sorry,

       let me just check that.  Sorry, it's actually the bottom

       of ... It's in the context of asking about a shortfall

       of 9,000 for example having suddenly appeared.  At the

       bottom at line 21 {Day7/166:21}:

           "Can I just say, in the scenario you have just

       described there, what you have said is that the £9,000

       loss would --"

   MR JUSTICE FRASER:  Where are you reading from?

   MR GREEN:  At line 21.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  "... have to have arisen on that particular day

       they were doing the balancing because had they done

       their cash declaration the night before --"

   MR JUSTICE FRASER:  And you say:

           "Let's assume it did".

   MR GREEN:  Indeed.  And then if we go down to the reference

       to the call to the NBSC {Day7/167:4}:

           "... so it would -- audits -- to do an audit on

       a branch it usually isn't -- it is usually because we

       can see something in the account that doesn't look quite

       right, so there is usually a lead time in going in to do

       an audit.  So it would be very unlikely, I am not saying

       it is impossible because it does potentially happen, but

       it would be very unlikely that that scenario would

       present itself."

           So that and following and re-examination in relation

       to that is the section of evidence which

       Angela Van Den Bogerd gives.  We have other examples

       for example, in the Detica report at {G/5/8}.

   MR JUSTICE FRASER:  These are examples of ...

   MR GREEN:  Ability remotely to monitor.  That is referring

       to the Credence database:

           "The Credence database was designed to support

       non-compliance and fraud detection work of ... P&BA

       team.  Should a branch ... have unusual activity

       Credence would be used to investigate transactions."

           There is a table on pages 11 to 13 {G/5/11}, and

       then there is on page {G/5/14} bespoke databases which

       include P&BA POLSAP, tracking unusual behaviour,

       Credence in network architecture, 30 billion records

       used for branch profiling purposes and so forth.

           We have then at {F3/168/3} spotting anomalies in

       branch accounts, the ability to flag potential issues in

       a branch remotely at an early stage.  Various examples,

       overnight cash holdings, P&BA.  Movement of cash out of

       the ordinary, high level of transaction corrections,

       et cetera.

           We have {G/33/37} which is the HORIce system which

       I think came out of the branch support programme.

       Paragraph 7.1:

           "The pilot has proved that HORIce is an effective

       and an efficient tool - and an improvement on anything

       we have had to date - for focusing on any one particular

       branch ..."

           And so forth.

           And then {G/41/1}.

   MR JUSTICE FRASER:  Have you gone off G ...

   MR GREEN:  There is quite a lot more on {G/33/37}.

   MR JUSTICE FRASER:  Sorry, we are on {G/41/1} now, are we?

   MR GREEN:  Does your Lordship want to go back to {G/33/37}?

       I am trying not to take up too much time, I'm just

       giving examples.  This document was put to

       Angela Van Den Bogerd on Day 8 at 167 {Day8/167:1} and

       Day 9 at 160 {Day9/160:1} if that's helpful.

   MR JUSTICE FRASER:  You were sort of doing a slightly

       wandering meander through and while I was reading you

       were jumping ahead.

   MR GREEN:  I'm sorry, my Lord.  I am taking it too fast.

   MR JUSTICE FRASER:  No, it's all right.  So {G/33/37}, you

       were reading some of the bullet points under item 7, is

       that right?

   MR GREEN:  My Lord, yes, that is right.

   MR JUSTICE FRASER:  The second bullet point.

   MR GREEN:  Yes.  There is also the third -- yes, the second

       bullet point was accessing branch data ...

   MR JUSTICE FRASER:  The second bullet point demonstrates

       that NBSC can access branch data and assist a branch

       with an accounting problem:

           "... so that they establish exactly what the branch

       has done rather than relying on what they say they have

       done."

   MR GREEN:  Indeed.  So that is the ability to I think

       monitor the actual key strokes rather than have to match

       what the branch believes they have done with a request

       for ARQ data.

   MR JUSTICE FRASER:  But that is for -- this document is --

   MR GREEN:  2015.

   MR JUSTICE FRASER:  Well, it is referring to something that

       was imposed in 2014 I think.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Is that right?

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  So it doesn't much help you in terms of

       pre-2014, does it?

   MR GREEN:  No, it doesn't.  The HORIce system is a later

       point than the other points.

   MR JUSTICE FRASER:  I know.  But certainly, so far as this

       document is concerned, 2014.  I think Mrs Stockdale is

       2014, isn't she?

   MR GREEN:  Yes.  The point that -- my Lord, there are two

       facets to this.  There is the historical ability.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  And then the possibility of gaining insight into

       it in general in the relationship.  Because the pleading

       is based on you just can't know, you can't ever know.

       And your Lordship is absolutely right that there is

       obviously a chronological significance to changes that

       are made that explain that you now can do something you

       couldn't do in that way before.  But the pure ability to

       do something or not do it -- it is like whether you take

       out insurance or not, for example -- might be relevant

       on an UCTA point, for example.

           If Post Office doesn't -- if it is very expensive

       for them to get ARQ data or if they don't have the

       system in place, it doesn't mean they couldn't do it.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  That is the second layer.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  Just very briefly, just go back to {Day9/44:18}:

           "Question: Can you explain to me why it is you're

       saying that."

           This is my learned friend's re-examination of

       Angela Van Den Bogerd.

           Her answer line 24 is:

           "Answer: On a daily basis the branch would have been

       making their cash declaration ... if there had been

       a 9,000 loss that would have been evident at the time so

       it would be highly unlikely that would happen on the

       day.  It could happen on the day, but what I am saying

       is in an audit situation then we have had insight into

       the trading of the branch in advance so it would be very

       unusual for us to turn up randomly and find

       a £9,000 loss that we weren't expecting to see from the

       information we would have seen previously."

   MR JUSTICE FRASER:  In a way that doesn't advance it one way

       or the other, does it?

   MR GREEN:  My Lord, all it does --

   MR JUSTICE FRASER:  Your scenario was predicated on the fact

       that that £9,000 had occurred that day.  What

       Mrs Van Den Bogerd has made clear was that activity or

       unusual situations which were monitored by Post Office,

       the Post Office, could lead to an audit being

       instituted.  So it is not necessary for the audit to

       happen on the same day as the £9,000, though that was

       the scenario you put to her, because when you take her

       evidence as a whole that might have happened last

       Friday.

   MR GREEN:  Quite.

   MR JUSTICE FRASER:  They realise it, and they might send

       an audit team in next Tuesday.

   MR GREEN:  Indeed.  But my Lord, the point is, it is not

       really the timing point I was seeking to make.  It is

       a fair point of context.

   MR JUSTICE FRASER:  You constructed the timing point in your

       questioning.

   MR GREEN:  I did.

   MR JUSTICE FRASER:  As part of your scenario.

   MR GREEN:  Indeed.  That is quite right.  But the point I am

       trying to take out from the answer is that

       Angela Van Den Bogerd, viewed fairly, her evidence

       as a whole, was saying, well, actually when we go into

       an audit we tend to have noticed remotely, in advance,

       some anomalies.

   MR JUSTICE FRASER:  I see.  And you are relying on the

       noticing in advance remotely as underpinning your other

       point.

   MR GREEN:  Yes.  She is not the subpostmaster, nor is the

       person going in with the audit with prior knowledge.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  So if one -- so against that background, it is

       quite important to focus on what Post Office's case has

       been hitherto and what it suddenly now is in closing.

           We begin by looking quickly at paragraph 39 of the

       Generic Defence at {B3/2/13}.  Paragraph 39 refers to

       transaction corrections and pleads that:

           "One of the safeguards against errors by

       subpostmasters ... is a process by which Post Office

       proposes corrections to a branch's accounts."

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Your Lordship will remember the table which

       showed about 20 per cent, even on Post Office's

       allocation of responsibility, weren't branch's fault.

       And then the significant -- key significant words are

       firstly "by which Post Office proposes corrections", in

       that second line, "to a branch's accounts".  Which then

       finds expression in subparagraph (4) on the next page

       {B3/2/14}, and it says there:

           "A transaction correction notification sent by

       Post Office to a branch is a proposal, not

       an instruction, and it does not take effect unless

       accepted by the subpostmaster concerned."

           So that is the pleading point which

       Angela Van Den Bogerd's evidence supported in that

       respect which we say on our case is demonstrably wrong.

   MR JUSTICE FRASER:  Wrong because of what?

   MR GREEN:  Because the implication is that -- from the next

       sentence, and from the words "proposal", and from her

       evidence that it is based on consent, the clear picture

       the court is invited to take from the pleading and her

       evidence is that it is based on the subpostmaster's

       genuine consent to the content of what is alleged to be

       an account by which an agent is bound in the traditional

       sense, and we say it is no such thing.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  If your Lordship looks at the second sentence of

       this paragraph, it says:

           "On receiving a transaction correction notification,

       the subpostmaster can either accept the correction or

       dispute it."

           That is not correct.  The "accept now" button has to

       be pressed, and then you get the three options: make

       good by cheque, make good by cash or settle centrally.

       The defendant well knows that there is no dispute option

       on Horizon, and that when a dispute button was suggested

       it was rejected.  So we have said in our closing

       submissions that that can fairly be described as

       a deliberate choice by the defendant, by Post Office, to

       exclude from the account on the Horizon system and the

       information which it produces the existence of a dispute

       in relation to transaction correction or, as I will come

       to in a moment, a discrepancy.

           Then that is bedded in further by subparagraph (5).

       It says:

           "On the Horizon screen, there are two ways for

       a subpostmaster to accept a transaction correction.  He

       or she may 'accept' the transaction correction: this

       immediately increases or decreases the cash or stock

       position ..."

   MR JUSTICE FRASER:  Is that a make good for cash or make

       good for cheque?

   MR GREEN:  Indeed.  And then:

           "Alternatively, if the amount of the transaction

       correction is £150 or more, he or she may 'settle it

       centrally': this causes the amount of the transaction

       correction to be transferred to his or her personal

       account with Post Office.  Unless a dispute is lodged

       with Post Office ... he or she thereby accepts the

       validity of the transaction correction and Post Office

       will in due course pay or collect the relevant amount to

       or from the subpostmaster."

           Pausing there.  Any sum under £150 cannot be settled

       centrally in any event, so all of those sums are out.

       And even this description makes no provision for

       circumstances which your Lordship has heard evidence

       about where, for example, someone is told to expect

       a transaction correction going the other way, like

       Pam Stubbs.  She pays her £388 on the footing that it

       will be then corrected the next month.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  So there is a record on the Horizon system which

       does not reflect the account to which to the

       subpostmaster would freely consent.

           Furthermore, it is not actually regarded as settled.

       Your Lordship will remember Angela Van Den Bogerd's

       evidence when I said if someone has a gain on their

       statement that they don't agree with, is it right for

       them to take the money out?  Because they know it is

       a gain to them if they take the money, they know they

       don't agree with it, they accept it subject to this

       dispute process of calling the Helpline.  Is it right

       for them to take the money out?  She said yes, but they

       have to be ready to put it back in again if it goes the

       other way.  So albeit framed in the context of gain, the

       defendant clearly doesn't regard it as a settled account

       even after the "accept" has been pressed at that stage.

           But the focus of the defendant's case is on the

       Horizon system itself.  And I think I have already given

       your Lordship the reference to where we have dealt with

       the process for accepting TCs at {A/6/22} to {A/6/27} in

       our closing submissions which we have done in some

       detail.

   MR JUSTICE FRASER:  But if you look at subparagraph (5) on

       that screen, on the common screen {B3/2/14}, where it

       says on the Horizon screen there are two ways for

       a subpostmaster to accept a transaction correction,

       there are actually three ways but two of them are make

       good for cash and make good for cheque so they must be

       rolled up.

   MR GREEN:  1(a) and 1(b) as it were.

   MR JUSTICE FRASER:  And other than one is a cheque and one

       is just petty cash, there is no real difference between

       those two, is there?

   MR GREEN:  No.

   MR JUSTICE FRASER:  That involves the person deciding,

       yes -- let's say it is £111, I will put the £111 in and

       I will balance the books.

   MR GREEN:  They don't have a choice about that because

       they can't settle it centrally.

   MR JUSTICE FRASER:  They do have a choice in the sense they

       might decide, I am going to put £111 in out of my

       wallet, I am going to put £111 in by writing a cheque

       but I must have funds to cover it otherwise I contravene

       certain rules.  In those circumstances, they can't

       settle it centrally because it is only £111.

   MR GREEN:  Exactly.

   MR JUSTICE FRASER:  If it is £180 or £1,000, they could put

       £1,000 in in cash.

   MR GREEN:  Exactly.

   MR JUSTICE FRASER:  They could write a cheque for 1,000,

       they could settle it centrally.  They could settle it

       centrally whether they disputed it or not.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  And part of the function of settling

       centrally is effectively to get time to pay.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  But if they dispute it, they still have

       to settle it centrally but they also have to dispute it

       by phoning into the Helpline.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  And saying "I dispute it".

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  What then happens to it after that is

       probably -- well, the evidence is -- there is quite

       a lot of evidence about what happens then.

   MR GREEN:  Precisely.  If we look at the basis upon which

       Mr Abdulla was cross-examined on {Day4/86:1}.

   MR CAVENDER:  My Lord, before you do that, can you read,

       please, paragraph 6 of the pleading.  My learned friend

       is making a point that somehow we have moved away from

       our pleading and it's all wrong.  Please read

       paragraph 6 while we're there. {B3/2/14}

   MR JUSTICE FRASER:  I have read it already but I will read

       it again.  Yes.

   MR GREEN:  While we are there, there is no automatic block.

       There has to be a dispute recognised by the Helpline as

       a dispute.  Just as a point of clarity, if we just go to

       paragraph (6) and if we look at the bottom:

           "If, having discussed the matter and reviewed any

       further information provided by the person identified,

       the subpostmaster wishes to dispute the proposed

       transaction correction ..."

           Pause there.  Your Lordship saw those badly formed

       TCs where -- that were reported, where no person was

       identified for them to call.  It was an example of

       poorly constructed transaction corrections.  So there

       are a whole load of dependencies in relation to the

       dispute process.

           And then the last four lines:

           "Where it is settled centrally, the amount of the

       transaction correction is transferred to the

       subpostmaster's personal account with Post Office and

       a block is placed of the amount transferred to the

       personal account whilst the dispute is resolved."

           There is no automatic block in relation to that.  It

       is only a block when the Helpline recognises what has

       been said to them as a dispute and feeds that back and

       this is correctly acted upon by Post Office even when an

       express insurance has been given that it should be acted

       upon.

           My Lord, can I look now at --

   MR JUSTICE FRASER:  The middle of paragraph (6), six lines

       down, if you want to dispute it -- if an SPM wants to

       dispute it, he or she should accept it or settle it

       centrally.  As I understand the evidence you actually

       settle it centrally and then lodge a dispute, because

       accepting it in those terms is making good for cash or

       making good by cheque.

   MR GREEN:  You have to press "accept" first and then and

       only then do the three options appear.

   MR JUSTICE FRASER:  I know, that is rather my point, because

       that says "he or she should accept it or settle it

       centrally".

   MR GREEN:  And they are not alternatives.

   MR JUSTICE FRASER:  Well, I know that is your explanation,

       or that is the submission you are making to me in terms

       of inviting my findings on the evidence of how that

       works.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  If you are using "accept" in line 6 of

       subparagraph (6) in that way {B3/2/14}, I think that is

       different to how "accept" is used -- it must be

       different to how "accept" is used in line 2 of

       subparagraph (5).

   MR CAVENDER:  My Lord, I am not sure it is, because I think

       it is referring to the below £150, you have to accept

       that.  That's what that is referring to, I think.

   MR JUSTICE FRASER:  So subparagraph (6) should be --

   MR CAVENDER:  Brackets, in relation to £150 or less.

   MR JUSTICE FRASER:  I see.

   MR CAVENDER:  Because then you can't settle centrally.

   MR JUSTICE FRASER:  But you still can dispute it.

   MR CAVENDER:  Correct.

   MR JUSTICE FRASER:  So really -- and it is useful to make

       this observation now to Mr Cavender because he is on his

       feet and it has just arisen -- really the dispute aspect

       of Horizon, if we are going to include amounts below

       150, is phoning the Helpline.

   MR CAVENDER:  Yes.

   MR JUSTICE FRASER:  Whichever button you have pressed

       between make good for cash, make good by cheque or

       settle centrally.

   MR CAVENDER:  Indeed.  And it also applies, to test the

       point, you could put your cash or your cheque in

       your Lordship's examples and still dispute.  Just by

       paying the amount it doesn't prevent you, you might

       prefer to do that to settle the balance of the accounts,

       but you could still dispute it.

   MR JUSTICE FRASER:  But if that is right, Mr Cavender,

       doesn't that have an impact on how you seek to have the

       Horizon account dealt with as a settled account for

       agency purposes?

   MR CAVENDER:  My Lord, no, because it is very simple.  The

       account is an account stated in its full terms subject

       to any disputes you've raised upon it, whether they are

       disputes -- deficits on a rollover or whether they are

       disputes over TCs that precede a rollover and, if you

       like, feed into a deficit at rollover.  So it is very

       simple: the account is the account as stated subject to

       any disputes the postmaster has registered with the

       Helpline.

   MR JUSTICE FRASER:  All right.

           Mr Green.

   MR GREEN:  My Lord, the point I am going to make about that

       case, which I am tracing through with some care, is that

       is a completely new case in closing, it is not

       consistent with what the auditors presented people with

       at the time because no auditor ever showed up with

       copies of the Helpline logs, it is not consistent with

       my learned friend's cross-examination of the witnesses

       which I am going to show you, it's positively contrary

       to that case, and it is not consistent with the opening.

       And when we did the compare docs --

   MR JUSTICE FRASER:  But apart from the pleading, the opening

       and how the case was put to the witnesses.

   MR GREEN:  And the evidence.

   MR JUSTICE FRASER:  And the evidence.

   MR GREEN:  Apart from that, it is in the closing.

   MR JUSTICE FRASER:  Apart from that, that is their case at

       the moment.

   MR GREEN:  Indeed.  So the way it was put first of all to

       Mr Abdulla on {Day4/93:1}.  Just in relation to

       transaction corrections first, if I can.  I just want to

       take transaction corrections as a separate topic and

       then deal with discrepancies.

   MR JUSTICE FRASER:  So we are still on transaction

       corrections, are we?

   MR GREEN:  Yes.  There are two subtopics within this.  One

       is transaction corrections, the other is discrepancies.

       I am going to show your Lordship Mr Abdulla on TCs, and

       I am going to show your Lordship Mr Sabir, the very

       clear cross-examination of Mr Sabir in relation to

       discrepancies.

   MR JUSTICE FRASER:  Right.

   MR GREEN:  So --

   MR JUSTICE FRASER:  Where are we here?

   MR GREEN:  Mr Abdulla at page 86.

   MR JUSTICE FRASER:  Of his cross-examination?

   MR GREEN:  Of the cross-examination of Mr Abdulla by my

       learned friend.

   MR JUSTICE FRASER:  What day was that?

   MR GREEN:  This is Day 4, page 86, and it comes just below

       the phrase "potted views on transaction corrections" at

       the foot of the page 84.

   MR JUSTICE FRASER:  At the foot of page 84?  You said 86.

   MR GREEN:  Sorry, at the foot of page 85.  I apologise.

       {Day4/85:20}

   MR JUSTICE FRASER:  "Potted view of the transaction

       corrections", yes.

   MR GREEN:  Your Lordship may remember that point.

           Then at line 2 {Day4/86:1}:

           "Question: Can we establish one thing first.  You

       accept that you don't have to accept transaction

       corrections, do you?  They are suggested to you."

           So the case has been run throughout evidence on the

       footing that they are a suggestion.

           "Answer: You have to accept one way or the other.

       You have to accept it straightaway and pay the cash as a

       deficit or you accept it centrally and then by branch

       transfer day you have to make good the loss."

           And then line 16 again:

           "There are two options."

           Well, my learned friend asked the question at

       line 12:

           "Question: Let's go to the manual, shall we, because

       that isn't true --"

   MR JUSTICE FRASER:  You have to look at the question as

       well:

           "You can either accept it as you say and, if the

       amount needs to be paid, pay it, or you settle it

       centrally and dispute it."

           And Mr Abdulla then says:

           "There are two options."

   MR GREEN:  Exactly.  You accept it straight away or you

       accept it centrally.

   MR JUSTICE FRASER:  He is using the phrase both there and in

       the previous answer "accept centrally" as being

       equivalent to settling centrally, isn't he?

   MR GREEN:  Indeed, because of the way the system presents it

       to the subpostmaster.

   MR JUSTICE FRASER:  No, it may not matter, but just in terms

       of his answer he never uses the phrase "settle

       centrally", he calls it "accept centrally":

           "You have to accept it in the end ..."

           Et cetera, et cetera:

           "... and you can't open your office until it has

       been rolled over."

   MR GREEN:  Yes.  I think it goes ... His understanding,

       your Lordship is right, is if we go over the page.

   MR JUSTICE FRASER:  To 87?

   MR GREEN:  To page 89, line 7 {Day4/89:7}.

           "Question: But what you do, don't you, if you want

       to accept a transaction correction, you settle it

       centrally and then ring to dispute it?

           "Answer: You dispute it if you want to dispute it.

           "Question: Yes.

           "Answer: But there is not an option when you are

       accepting it.  So you accept it straight away and you

       accept it centrally, there is not an option for

       accepting it centrally and disputing."

   MR JUSTICE FRASER:  Mr Cavender says.

           "Question: You don't accept centrally, you settle

       centrally."

           Which is an obvious point on the wording of the

       system, and he says that is what he means.

   MR GREEN:  Yes, he says that is what he means.

           And he says -- this is the key question at 19 and

       the key words are at 21:

           "Question: So you settle it centrally, don't accept

       it, and you then ring to dispute it."

           And he presses on:

           "That enables you to roll over."

   MR JUSTICE FRASER:  Before he does that, Mr Abdulla says

       that is not correct.

   MR GREEN:  Yes, exactly, and --

   MR JUSTICE FRASER:  And on the basis that you only get to

       the 'settle centrally' button after you've pressed

       accept, that might well reflect his greater familiarity

       with the system.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  And then --

   MR GREEN:  Mr Cavender asks:

           "Question: Can I finish just to put to you what

       I suggest the system is, then that enables you to roll

       over?

           "Answer: No, you need to accept it centrally.  You

       settle it centrally.  What that really means is you are

       accepting it centrally.  It's the same thing --

           "Question: I suggest to you that it is not --"

   MR JUSTICE FRASER:  And then says at line 7 of page 90

       {Day4/90:7}:

           "So say a transaction correction pops up, you have

       two options, two boxes.  So you have either one is to

       accept it now straightaway and put whatever it is, put

       the money in or take the money out, whatever, and then

       the other box says 'settle centrally'."

           And I ask him what he thinks that means.

   MR GREEN:  Indeed.  Then you get the passage that

       your Lordship sees for example at 91, at the end of

       that:

           "Question: You have dealt with it but you have

       settled --"

   MR JUSTICE FRASER:  Where are we now?

   MR GREEN:  Sorry, page 92, line 4 {Day4/92:4}:

           "Question: You have dealt with it but you have

       settled it in a way that keeps open your possibility of

       arguing about it?

           "Answer: No, no.  Even if it is open, even if it is

       in dispute, you can't roll over until you have sorted it

       out before branch transfer period.

           "Question: I suggest you are wrong about that.

           "Answer: I suggest I am right."

           Then at the top of page 93 {Day4/93:1}, Mr Cavender:

           "Question: But the simple point is, Mr Abdulla, you

       knew on that that there is no particular pressure on you

       to accept something you didn't want to accept simply

       because you were coming up to a rollover period.

       Because you settle it centrally and dispute it?

           "Answer: No, you -- I just explained it to you.  You

       have to accept it whether you like it or not.  Whether

       you -- it is still in dispute if you have disputed it.

       Whether you agree with it or not you have to accept it.

       It is not that you have a choice.  On transfer rollover

       period you have to accept it."

           The reason for that, my Lord, your Lordship will

       remember, is that the "defer decision" button only takes

       you up -- you can only delay dealing with TC up to the

       end of the branch trading period.

   MR JUSTICE FRASER:  And that is at four weeks, isn't it?

   MR GREEN:  It is four or five.  Sometimes five weeks.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Then when we look at shortfalls and

       discrepancies --

   MR JUSTICE FRASER:  So we are done with TCs now?

   MR GREEN:  We are done with TCs.

   MR CAVENDER:  I hesitate to interrupt.  My learned friend

       said I put the questions on a false basis, I have

       changed my case and he's shown the cross-examination to

       display that.  Could I ask him, through your Lordship,

       to tell me where the case I have put to this witness is

       different to what we have pleaded and put.

   MR JUSTICE FRASER:  Mr Cavender, you can by all means submit

       to me that it is consistent, and I understand that you

       will be doing that.  Mr Green says it is different.  But

       we will -- all will become clear in due course.

   MR GREEN:  This is -- we then have to look at the Generic

       Defence at paragraph 69.3 which is at {B3/2/33}.  It

       says:

           "As indicated at paragraphs 184 and 185 below,

       Post Office may hold subpostmasters who signed branch

       trading statements to the accounts that they signed

       off."

   MR JUSTICE FRASER:  Where are you reading from?

   MR GREEN:  From subparagraph (3).

   MR JUSTICE FRASER:  Which paragraph of the Defence?  69?

   MR GREEN:  Paragraph 69(3).  That should fairly be read with

       paragraph 183.

   MR JUSTICE FRASER:  Hold on a second before you get to 183.

       (Pause)

           Yes.  Now where are we going?

   MR GREEN:  This rather mirrors your Lordship's point to my

       learned friend.  Paragraph 183 on {B3/2/71} which says:

           "If and insofar as claimants are alleging that

       branch accounts that they have rendered to Post Office

       are incorrect, they bear the burden of proving those

       allegations."

           That is on the settled account footing.  And

       my Lord, what has changed is that --

   MR JUSTICE FRASER:  That is the same as the last line of

       69(3).

   MR GREEN:  It is.  Exactly.  They go together.  What has

       changed is that the premise for all of this up until

       closing was actually that the account is what is on

       Horizon.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  And what has changed is the account, and this is

       now reflected in the closing submissions -- I will show

       you -- the account is now Horizon and it is not

       including things that are disputed.

   MR JUSTICE FRASER:  Yes, do you want to show me where that

       is?

   MR GREEN:  Before I do, can I show your Lordship what the

       Common Issues actually say.  It slightly gives the game

       away.

   MR JUSTICE FRASER:  What the Common Issues say?

   MR GREEN:  Yes.  This is the Common Issues at {B1/1/3}, and

       it is clear that what was regarded as the account was

       confined to the branch trading statement and not what --

   MR JUSTICE FRASER:  Which number are we talking about?

   MR GREEN:  So we look at (13), and there is not a whiff of

       wriggle room outside the Horizon-generated branch

       trading statement that they were being held to.  So it

       is totally new, we respectfully submit.

   MR JUSTICE FRASER:  That is what the Common Issues says.

       Where were you going to show me the most useful place

       where you say the Post Office now says that the account

       is something different?

   MR GREEN:  My Lord, it's quite easy to show you what the

       change is.

   MR JUSTICE FRASER:  Well, just show me where it is.

   MR GREEN:  Can I just show you the written opening and then

       the written closing so you can compare them.

   MR JUSTICE FRASER:  Actually, I'd rather you showed me the

       written closings, because I've now asked you three

       times, and if I ask you to show me where something is,

       it is really because I want to look at it.  So show me

       where that is first.

   MR GREEN:  Paragraph 98(a) at {A/8/42}.

   MR JUSTICE FRASER:  It's that last sentence:

           "An amount that is in dispute does not form part of

       the account ..."

           Yes.

   MR GREEN:  So just taking it in stages so your Lordship --

       we don't have to look at the opening --

   MR JUSTICE FRASER:  I don't mind looking at the opening,

       Mr Green, it is just if I ask you where something is, it

       is because I want to see where it is and what it says.

           Right, where are we going now?

   MR GREEN:  I just want to tell your Lordship what in the

       closing is new so you can see how it has developed.

           The key passages which on a comparison are new are

       the part in 104(a), the last line in 104(a).

   MR JUSTICE FRASER:  I was in 98(a).

   MR GREEN:  Sorry, we should go forward to 104(a) at

       {A/8/44}.  It's the last line of (a) on 104 that says --

   MR JUSTICE FRASER:  Just let me read the whole subparagraph.

       It's common ground that the SPM must settle the amount

       centrally to roll over, so that is now common ground.

       It is common ground the dispute is notified by a

       telephone call.  The amount is taken out of the branch

       trading account.  Well, I don't know if that is common

       ground or not.  But it goes into what is effectively the

       settle centrally account which is described in other

       places as the personal account.

   MR GREEN:  Yes.  The reason it settles -- my Lord, it

       doesn't actually go out of the branch trading account.

   MR JUSTICE FRASER:  No.  That is Mr Cavender's submission,

       though.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  But if the branch -- yes, I understand.

       All right.

   MR GREEN:  Then the final line in particular:

           "It does not form part of the account stated.

       Post Office has not contended otherwise in these

       proceedings."

   MR JUSTICE FRASER:  And you say they have.

   MR GREEN:  Yes.

           If we go back to 98, paragraph 98 {A/8/42}, it is

       actually from the words:

           "It is of course right that a particular entry or

       amount may not form part of the accounting party's

       account for the purposes of the principles on which

       Post Office relies."

           It is from there, not just the bottom lines, if

       I misled you.

   MR JUSTICE FRASER:  Sorry, "it is from there", meaning that

       is the part which you say represents the new case.

   MR GREEN:  The new part is in the third line:

           "It is of course right ..."

           That is the new part.

   MR JUSTICE FRASER:  That is what you say is the new part.

   MR GREEN:  Exactly.

   MR JUSTICE FRASER:  So I need to look with particular care,

       you say, at 98(a) and 104(a) because you say it is new.

   MR GREEN:  Yes.  And then other key points in the closing

       which develop the new case are 108 on page 46, {A/8/46},

       110 --

   MR JUSTICE FRASER:  Sorry, where in 108?  Or the whole of

       it?

   MR GREEN:  The whole of 108.  This whole passage in our

       compare, all of this is -- my Lord, lots of this is new

       on the compare.

   MR JUSTICE FRASER:  I understand.

   MR GREEN:  I am trying to pick out the key points.

   MR JUSTICE FRASER:  I understand.

   MR GREEN:  108, and then particularly 110.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Over the page.

   MR JUSTICE FRASER:  Where are we now?

   MR GREEN:  Page {A/8/47}, paragraph 110.

   MR JUSTICE FRASER:  Yes, I have that one.

   MR GREEN:  And the footing:

           "Cs seem to argue --"

   MR JUSTICE FRASER:  Why are the pages different on there?

           It is not a different version, is it, Mr Cavender?

       I am just slightly worried.

   MR GREEN:  I think it is the contents pages, my Lord, are

       unnumbered.

   MR CAVENDER:  There was only ever one version.

   MR JUSTICE FRASER:  I have got the right version.  It is

       just the pages, is it?

   MR GREEN:  It is the contents pages.

   MR JUSTICE FRASER:  That cheers me on.

           So I have looked at paragraph 110.

   MR GREEN:  Paragraph 111 particularly.  Then if we go to 118

       {A/8/49} where it says:

           "This of course ... do not form part of the account

       stated: see above."

           And then the conclusion on this point seems to be at

       132 {A/8/53} which is:

           "Yes, subject to any dispute that was raised at the

       time."

           So what is the account to which they are being held

       now appears to include Helpline logs or conversation,

       they may have rung up the person who sent the TC, or any

       of those things.  So your Lordship's question about what

       the definition of the account is is a live issue, at its

       lowest.

           My Lord, can I show you very quickly the

       cross-examination of Mr Sabir and that is the end of

       this point.

   MR JUSTICE FRASER:  Were you going to show me something in

       opening that I distracted you from doing?

   MR GREEN:  It was only so your Lordship had them side by

       side.

   MR JUSTICE FRASER:  Just give me the reference.

   MR GREEN:  The written opening starts at paragraph 62

       {A/2/20}, and if your Lordship wants to compare 64(a)

       with 98(a) in the closing it is quite a good way of -- a

       good litmus test for the sort of changes that have been

       made.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  So, my Lord, just to finish this piece, if

       your Lordship looks -- and I promise to make it good on

       Mr Sabir's cross-examination which I can do quite

       quickly.  It's {Day3/151:8}.

           The short point that I am seeking to demonstrate by

       these passages is that Mr Sabir was cross-examined on

       the express footing that the account was limited

       basically to what was on Horizon.

   MR JUSTICE FRASER:  Where am I looking here?

   MR GREEN:  It's page 151, line 8 {Day3/151:8}.  It begins

       with:

           "Question: Do you accept in principle the deficit of

       £4,878, if one is found in your accounts, is a serious

       matter?  Just generally?

           "Answer: If that was due to my mistake that is

       acceptable, I've done the fraud that is not acceptable.

       So when auditors came there, when they found out this

       discrepancy, I showed them in my notebook this is the

       reference number, I spoke with the Helpline, and I also

       showed the receipts in which she was doing the

       mistakes."

           Then he explains what happened.

           If we go to 152, line 12 {Day3/152:12}, he says:

           "Answer: When I found that, and after that suddenly

       the Post Office showed in their system that I am short

       so much stock, I rang the Helpline.  I requested that

       'This is the problem I have and can you please let me

       know -- I have got the money in the safe written on

       those that this is spare cash, and if somebody can

       please help me from lottery side so I can balance the

       stock'."

           And then at 22 {Day3/152:22}:

           "Answer: So when they came I showed the details, the

       receipts in which she was used to rem out instead of

       remming in.  I said that this was the problem.  I could

       not find how many scratch cards I am under so can you

       please ask somebody."

           Over the page, 153, line 1 {Day3/153:1}:

           "Answer: I told the Helpline to ring me and if they

       tell me the money already in the safe and I can balance

       my stock, but no one rang me after that.  Then suddenly

       they came and they suspend me."

           He is then invited to concentrate on the accounting.

       You will notice this is the passage in which

       your Lordship, at the top of 155 {Day3/155:1}, requests

       precision in the middle of this passage from my learned

       friend because he is asking about the accounts.

           So what leads up to that is at 153 at line 5

       {Day3/153:5}:

           "Question: Mr Sabir, what I want to do is

       concentrate on the accounting.  How you accounted for

       this difficulty.  Yes?  You are an assistant accountant,

       you must have realised the importance to account for

       this matter properly.  Do you agree with that?

           "Answer: I was accounting every day properly.

           "Question: As at 10 August when the auditors came

       in, you were telling the Post Office through your signed

       accounts that you had £4,878 more in stock at your

       Cottingley branch than in fact you did have.  Do you

       accept that?

           "Answer: Can you repeat the question, please?

           "Question: Yes.  As at 10 August you were [telling]

       Post Office through your signed accounts that you had

       4,878 more in stock at your Cottingley branch in

       relation to scratch cards than in fact you did have?

           "Answer: I have spare cash in the --

           "Question: In terms of your accounting to

       Post Office ... It was a net figure.  The gross figure

       in terms of stock obviously is the 5,117.40, but you

       were significantly in your signed accounts inaccurately

       accounting for the stock you actually had.  You were

       telling them you had 4,000 plus more in stock than

       in fact you did.

           "Answer: I have already raised this complaint before

       signing the accounts, and if we don't sign the accounts

       and don't roll over you can't clear the next day ..."

           My Lord, I don't want to delay the transcript

       writers' break, but this section goes all the way on

       to -- all the way through -- very clearly all way

       through to the end at 167, 4 to 6 {Day3/167:4-6}.

           For example, it includes at 161, line 16

       {Day3/161:16}:

           "Question: Because there was no need to falsify your

       accounts in this way and mis-state your stock, was

       there?  All you had to do was put the cash in and in

       fact that is what happened.  Look at the bottom of

       {E3/123/2}, part of this audit report.  Cash was

       in fact -- actually a balancing cheque was put in to

       make good the error.  So you didn't need to mis-state

       your accounts in this way, did you?

           "Answer: Which I requested before.  I did not

       falsify anything."

           And so forth.

           So the entire piece --

   MR JUSTICE FRASER:  Whose cross-examination is this?

   MR GREEN:  This is cross-examination of Mr Sabir by my

       learned friend on Day 3.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  So the entire premise is that the --

   MR JUSTICE FRASER:  You say the premise of the way the case

       was put is different because it was not including

       amounts disputed as being within an account.

   MR GREEN:  Precisely.

   MR JUSTICE FRASER:  I have that point.  That is in dispute.

       Mr Cavender will explain to me the reason.

   MR GREEN:  Your Lordship may -- if your Lordship wants to

       look at two audit documents {E3/123/1} and {E3/124/1},

       they are relevant documents to that point.  I shall not

       delay the break any further.

   MR JUSTICE FRASER:  I can look at those in at my leisure.

           We will have a short break until 12.10 pm.

       Thank you very much.

   (12.01 pm)

                         (A short break)

   (12.11 pm)

   MR GREEN:  My Lord, there are three quick final points in

       relation to that piece, not to do with new case but just

       for clarity.

           The first is visible on {B1/1/3}, which is the

       version of the Common Issues which included the pleading

       references.  I just invite your Lordship to note the two

       paragraphs of the Generic Defence which I took you to in

       particular at the foot of the page, 69(3) and 183, are

       the two paragraphs that were referenced by the parties

       in the definition of the Common Issues in relation to

       branch trading statements.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  The second point is that the audit documents that

       I gave your Lordship the references for, just a short

       point on those: factually what is now being said is just

       not what happened on the ground at the time.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  And the third point is a short reference to the

       evidence of Mrs Stockdale on {Day4/201:5}.

           Let's start at the top.  My learned friend is

       putting to Mrs Stockdale:

           "Question: And you knew that that statement was

       false?"

   MR JUSTICE FRASER:  "I actually have a reason for this."

   MR GREEN:  Then your Lordship sees line 10 --

   MR JUSTICE FRASER:  Hold on.  (Pause)

           Yes:

           "Question: You could have settled centrally and

       disputed it, if that is what you wanted to do?"

           And she says she was told she couldn't do that.

   MR GREEN:  Yes.  She'd been told in writing, at line 10

       {Day4/201:10}, by a member of staff.

           At the bottom, line 22 {Day4/201:22}:

           "You could have settled centrally and disputed ...

           "Answer: I was told that I couldn't do that within a

       year --

           "Question: By whom?

           "Answer: It was written somewhere -- I have a letter

       actually with it written on.

           "Question: Perhaps my learned friend can show me

       that.  I don't think I have seen that."

           That, your Lordship will remember, is {E6/128.1/1}.

       In the middle:

           "Dear Liz.  If you're able to tell me what product

       caused your loss I would be able to chase that

       particular team for you."

           The context of this is her agreeing to repay the

       money assuming that the investigation that was going on

       has now been done, hence the letter, because she hadn't

       heard anything about it.

   MR JUSTICE FRASER:  The letter is a letter of demand,

       I think.

   MR GREEN:  Indeed.

           Mr Kellett responds with the asterisk:

           "On the understanding that you're not allowed to

       settle any further losses until a year after this has

       been repaid."

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Precisely her evidence.  And your Lordship will

       note that 20 months from 5 November 2014 expires

       in July 2016, and she was of course dealing with

       May 2016 so she was still in the period --

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  -- of the 20 months specified in that document.

           And the short point is, my Lord, it wasn't just my

       learned friend who hadn't seen that document, it was

       everyone involved in her case at the time in

       the decision to terminate her, my instructing solicitors

       who asked for correspondence -- do you remember my

       learned friend's re-examination?  It was in the hands of

       solicitors.  Correspondence requested, we didn't get it.

       We are the only party who have disclosed that

       correspondence in this litigation.

   MR JUSTICE FRASER:  That has not been disclosed by

       Post Office?

   MR GREEN:  No.  So it wasn't provided at the time in

       response to requests for correspondence.

   MR JUSTICE FRASER:  All right.  You have just added

       something onto the little list of things -- but I will

       tell you what it is now.  I just want the references in

       Opus to the solicitors' correspondence, both to and fro,

       in relation to this.  Just a list of the references.

   MR GREEN:  I am grateful.  If your Lordship wants the note

       of where --

   MR JUSTICE FRASER:  By "in relation to this", I mean in

       relation to Mrs Stockdale's specific situation.

   MR GREEN:  For your Lordship's note, at {Day4/209:24}, that

       is where I re-examined Mrs Stockdale and showed her --

   MR JUSTICE FRASER:  Give me the reference for the

       re-examination.

   MR GREEN:  Day 4, page 209.  I showed her the document at

       line 25 {E6/128.1/1}.  And on the following page at

       {Day4/210:21}, she says:

           "Answer: It was, yes.  Yes, it was.

   MR JUSTICE FRASER:  Okay.

   MR GREEN:  My Lord, now I would like to turn to the issue of

       liability for loss.

   MR JUSTICE FRASER:  We are done with agency and accounts

       now?

   MR GREEN:  We are done with agency and accounts.

           Sorry, my Lord, there was one thing I meant to

       mention which is that -- on agency and accounts, I have

       just realised I didn't mention it.  It is not correct to

       say that the amount comes out of the branch accounts,

       just like that.  What in fact happens is the branch

       accounts balance, because as a matter of double entry

       book-keeping there is a credit or a debt owed into the

       branch accounts from the customer account.  So that is

       the first point.

           The second point is your Lordship will also remember

       the evidence of Mr Bates who felt uncomfortable about

       randomly making things good in cash and stating that

       that is the account, because actually as a matter of

       double entry book-keeping if someone puts cash into the

       accounts of a business there should be an amount owed

       back to them, from the business to them.  And so

       Mr Bates' evidence on that was he felt uncomfortable

       with that aspect of it.  So a number of facets of the

       point about what happens to those disputed sums which go

       to the question of the account.

           I am sorry, I hadn't wrapped those up.

           Now in relation to losses, the construction of

       clause 12(12) in the context of section 12, clause 4 and

       5.

           The short point, as your Lordship knows, is we say

       the words of 12(12) are straightforward.

   MR JUSTICE FRASER:  This is the pure construction point.

   MR GREEN:  The pure construction point.

   MR JUSTICE FRASER:  On the SPMC --

   MR GREEN:  It is clearer than the NTC.

   MR JUSTICE FRASER:  I have to say the NTC -- now might be

       a good time to call up the NTC.

   MR GREEN:  The relevant provision of the NTC is on

       {E5/137/39}.  It's really -- I don't know which parts

       your Lordship finds more difficult than others but --

   MR JUSTICE FRASER:  I'm not sure I find any of it

       particularly difficult.  But in terms of wording, the

       first sentence of 4.1 is very similar to 12 -- the one

       in the SPMC.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Although there is a little bit of change

       of terminology, et cetera.  I don't think from memory,

       without looking at it again, SPMC uses "operator" but

       I might be wrong.

   MR GREEN:  Indeed.  My Lord, the only slight change in

       the brackets there is that it does make clear what we

       say is an obvious point of construction, that if the

       personnel are at fault that is the same as the operator

       being at fault.  That is made clearer in this than it is

       in the express words of clause 12(12).

   MR JUSTICE FRASER:  What, it's clearer that the personnel

       are also covered, do you mean?

   MR GREEN:  My Lord, in 12(12) --

   MR JUSTICE FRASER:  Let's start with 12(12).

   MR GREEN:  It may be worth looking quickly at 12(12).

       I don't know whether it is seriously pursued by my

       learned friend, because -- but if we look at 12(12) in

       {D2.1/3/53}.  My Lord, if it is helpful, in our closing,

       section B of our closing, we actually set out the two

       clauses side by side.  It may be a convenient place to

       find them.  That is page 185 {A/6/189}.

   MR JUSTICE FRASER:  Paragraph number?

   MR GREEN:  379.  So internal page 185 is Opus 189.

   MR JUSTICE FRASER:  Your page breaks are in the same

       position but your page numbers are different.  Yes.

   MR GREEN:  My Lord, I think it is a lesson learned by both

       of us for Opus next time: don't have unnumbered contents

       pages at the beginning.

   MR JUSTICE FRASER:  One of the lessons.

   MR GREEN:  One of a number.

   MR JUSTICE FRASER:  And don't put Opus references in your

       written closing and then decide to take them all out

       again and think it is not going to be a lengthy task,

       might be another lesson.

   MR GREEN:  I think it was actually the internal references,

       but yes.  That is a lesson learned.

           So the SPMC section 12, clause (12) is:

           "The subpostmaster is responsible for all losses

       caused through his own negligence, carelessness or

       error, and also for losses of all kinds caused by his

       assistants."

           That is the point of the operator goes to the

       till --

   MR JUSTICE FRASER:  I have that point.

   MR GREEN:  I don't know if it is seriously pursued but we

       say it is obvious what it really means.  And then the

       NTC in those brackets appears to actually make that

       point clearer, slightly, because it doesn't say the same

       provision relates to negligence by the operator, its

       personnel or otherwise or as a result of breach of

       the agreement by the operator.

   MR JUSTICE FRASER:  Yes.  But what the NTC does is it rolls

       the cash and stock provision of the SPMC together with

       12(12) and it puts them in one clause.  So actually what

       you really need to do is you need to look at the cash

       and stock provision of the SPMC and 12(12) next to this,

       but we don't have to bother with that now.

           The wording is different because 12(12) says:

           "... all losses caused through his own negligence,

       carelessness or error ..."

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  The first part of the NTC deals with

       cash and stock.  And we only get to the provisions of

       other types of losses in the final sentence which says

       {A/6/189}:

           "Any deficiencies in stocks of products and/or any

       resulting shortfall ..."

           It doesn't have the same wording or a derivative of

       the same wording in respect to other losses.

   MR GREEN:  Precisely.  There is a gap.

   MR JUSTICE FRASER:  According to one of the Post Office

       witnesses, and I think it was Mr Beal, who gave me the

       benefit of his views on the intention of the drafter, he

       said he thought the intention was that they were to be

       exactly the same.

   MR GREEN:  But the express words plainly don't cover that

       undistributed middle.

   MR JUSTICE FRASER:  The express words what, sorry?

   MR GREEN:  The express words don't cover -- don't deal with

       the point that your Lordship identified between the cash

       and stock on one hand --

   MR JUSTICE FRASER:  But I understand, and I'm not going to

       ask Mr Cavender about this now, but I understand

       Post Office's case, because Mr Cavender was quite open

       and frank about this in opening, is that they are -- the

       nature of the liability is the same whether it is the

       SPMC or whether it's the NTC.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  But whether that is right or not as

       a matter of wording.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Do you contend for different results on

       the two different versions?

   MR GREEN:  My Lord, we have adopted the position that it is

       very unclear but it appears to be aiming at the same

       target.

   MR JUSTICE FRASER:  Which may or may not -- so you do

       contend for different results?

   MR GREEN:  I think we accept -- we would accept

       a construction which imposed liability based on fault.

   MR JUSTICE FRASER:  That is again a different point, really.

       That is a forensic point.  In terms of your case on

       construction, do you contend for the same construction

       for both of those two differently worded passages?

   MR GREEN:  My Lord, yes.

   MR JUSTICE FRASER:  The same construction.

   MR GREEN:  Yes, notwithstanding that there are -- there

       might be available points on the express wording.

   MR JUSTICE FRASER:  There obviously are, aren't there,

       because the wording is rather different.

   MR GREEN:  There plainly are.  One of the things that is

       interesting about clause 12(12) is it pre-dates, and

       this may be the reason why they can be construed the

       same way, it pre-dates -- the SPMC pre-dates Horizon.

   MR JUSTICE FRASER:  I know.

   MR GREEN:  So what it is contemplating is really, as you can

       see from the heading of that section, responsibility for

       Post Office stock and cash.

   MR JUSTICE FRASER:  Well, I'm not sure that is necessarily

       right because the previous clause of the SPMC says

       "strictly liable", doesn't it?

   MR GREEN:  In 5, yes:

           "... strictly responsible for the safe custody ...

       and should keep them in a place of security, especially

       at night."

           But that is headed "Security of Cash". {D2.1/3/52}

   MR JUSTICE FRASER:  I know.  But it pre-dates everything

       else -- sorry, it pre-dates Horizon.  It is in the days

       of paper accounting, I think.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Let me just find section 12 in my magic

       bundle.

   MR GREEN:  It's on internal page 48 of the document,

       {D2.1/3/52}.

   MR JUSTICE FRASER:  Yes, it's number 5:

           "The subpostmaster is held strictly responsible for

       the safe custody of cash, stock of all kinds and other

       ... property ..."

           There is also a rather quaint little appendix buried

       in here which deals with the type of equipment,

       including things like scales and other things.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  That is in the custody of the

       subpostmaster, it belongs to the Post Office, and he or

       she is strictly responsible for looking after it safely,

       including the money.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  12(12) is about losses.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Which could arise other than simply

       safely looking after the money and the stock.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  So it's not aimed just at cash and

       stock.

   MR GREEN:  Well, indeed, that is true.

   MR JUSTICE FRASER:  Because as a function of the business

       being operated, there is the potential for losses.  If

       they are caused by negligence, carelessness or fault the

       subpostmaster or postmistress has to accept

       responsibility for them.

   MR GREEN:  Precisely.

   MR JUSTICE FRASER:  And that is not controversial at all.

   MR GREEN:  Precisely.

   MR JUSTICE FRASER:  In fact even Mr Bates -- when I say

       "even", I don't mean it pejoratively.  Mr Bates, who

       didn't get a full copy of the contract, said actually

       that is what he would have expected anyway and that was

       reasonable.

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  But when one goes to the NTC and the

       wrapping together of those two quite separate

       provisions, which on the SPMC there are different levels

       of responsibility, there is strict responsibility for

       cash and stock and there is a fault-based responsibility

       for losses.  But the NTC words it all very differently,

       doesn't it?

   MR GREEN:  It does.

   MR JUSTICE FRASER:  But you contend for the same

       construction of both, is that right?

   MR GREEN:  In results, yes.

   MR JUSTICE FRASER:  The same construction in result.  You

       mean the same construction?

   MR GREEN:  The same construction.

   MR JUSTICE FRASER:  Right.  So on your case it doesn't

       matter because the NTC imposes fault-based liability for

       losses in the same way as the SPMC did even though there

       is different wording, is that right?

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Now, do you reach that by taking account

       of the fact that the NTC is an evolution of the SPMC, or

       do you say that as a stand-alone point based on the

       wording of the NTC?

   MR GREEN:  I don't think it is very easy on the wording of

       the NTC.

   MR JUSTICE FRASER:  So you do rely on an evolutionary

       type --

   MR GREEN:  It is an evolutionary --

   MR JUSTICE FRASER:  -- iteration.

   MR GREEN:  Iteration.

   MR JUSTICE FRASER:  Absent -- it might be that that is not

       the correct construction.

   MR GREEN:  It might not be.

   MR JUSTICE FRASER:  Or, sorry, not the correct approach to

       construction.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Absent that, on the words themselves --

   MR GREEN:  There is a big gap.

   MR JUSTICE FRASER:  Right.  Well, tell me what gap you say

       there is.

   MR GREEN:  The first part, as your Lordship has identified,

       is referring to the loss or damage to cash and stock

       which was treated, at least on the face of

       section 12(5), separately.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Qualified of course by (15) and (16) of

       section 12.

   MR JUSTICE FRASER:  Yes, which is theft, burglary and

       something that has gone accidentally missing.  It

       doesn't actually say what happens after making a report.

   MR GREEN:  It doesn't.

   MR JUSTICE FRASER:  Maybe it was a more innocent time.

   MR GREEN:  I think it might have been.

           So you have that first provision.  And then the

       second part, from:

           "Any deficiencies in stocks of products and/or any

       resulting shortfall in the money payable --"

   MR JUSTICE FRASER:  Where are you looking now?

   MR GREEN:  This is in the NTC, the bottom half {E5/137/39}:

           "Any deficiencies in stocks of products and/or

       any ..."

           Important word:

           "... resulting shortfall ..."

           So it is not any shortfall, it is any shortfall that

       results from a deficiency in stocks of products.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  "... in the money payable to [the vendor] must be

       made good by the operator without delay so that, in

       the case of any shortfall ..."

           Which must mean that type of shortfall.

           "... the [defendant] is paid the full amount when

       due in accordance with the manual."

   MR JUSTICE FRASER:  And what do you say is meant by "the

       manual"?

   MR GREEN:  That is defined in the NTC in the terms which

       I think are in the transcript -- I can -- are huge.

       Because in the NTC the manual is defined on page --

       I have a sticker here.  The manual is defined on

       {E5/137/31}.

   MR JUSTICE FRASER:  I don't think it is 31.

   MR GREEN:  Sorry, 30 {E5/137/30}, on the left-hand side.

       And the manual means --

   MR JUSTICE FRASER:  Hold on.  Yes.

   MR GREEN:  "The manuals and other documents referred to in

       part 5 of these standard conditions."

           That then throws the reader forward to {E5/137/64}.

   MR JUSTICE FRASER:  Where we have part 5 at 1.1.

   MR GREEN:  1.1 goes down -- my Lord, in the transcript, if

       your Lordship clicks on Opus for where -- on this

       document, sorry.  On this document, the transcript is

       obviously referenced to where I went through this in

       evidence, in fact.  Can I remind myself --

   MR JUSTICE FRASER:  Yes, all right, you put it to someone.

       What you are saying is the easiest way to do is through

       the transcript because that will link through to all the

       different documents.

   MR GREEN:  Yes.  Your Lordship may remember we had -- this

       long list included Branch Focus, that is where we got

       summer sizzlers from.  And then:

           "Any other instructions to operators or updates to

       such instructions issued by Post Office Limited from

       time to time."

           So there was then a question of, well, does anyone

       have any idea what is and is not an instruction, which

       I was roundly criticised for asking.

   MR JUSTICE FRASER:  There are 18 different documents or

       suites of documents.

   MR GREEN:  17 plus the open one of any other instructions.

   MR JUSTICE FRASER:  But in a way, I'm not trying to be

       difficult, but in a way it is not really -- one cannot

       really throw one's hands up in the air and say, well,

       actually it is really quite vague and confusing and it

       must be the same as the SPMC.  Because there must be the

       possibility that it is capable of being construed

       differently.

   MR GREEN:  My Lord, that is right.

   MR JUSTICE FRASER:  But you are not contending for it be

       construed differently?

   MR GREEN:  My Lord, no, and I think that's partly --

   MR JUSTICE FRASER:  I'm not criticising anyone for it, I am

       just exploring it.

   MR GREEN:  I think it is partly for the construction for

       which we contend for 12(12) which we would submit

       doesn't include errors that weren't errors at the

       branch.

   MR JUSTICE FRASER:  No.  I am aware of that, and I am also

       aware of how the Post Office says they contend for the

       construction of 12(12) because in opening I explored

       this with Mr Cavender quite carefully.

   MR GREEN:  There is the gateway and the persuasive burden

       and so forth on the defendant's case which we --

   MR JUSTICE FRASER:  Yes, and the inference.

   MR GREEN:  And the inference.  We respectfully say that is

       circular, because the only time a loss shows up for

       which you are to be held liable, at all, is when it's

       already appeared on Horizon.

   MR JUSTICE FRASER:  But so far as the bulk of the separate

       amounts of money that have formed the subject matter of

       the individual evidence in this case is concerned, the

       part of the NTC into which they would fall, if they fall

       into anything, would be resulting shortfall in the money

       payable.

   MR GREEN:  Yes, and that is of course dependent on it being

       established there is a deficiency in stock of products

       or a resulting shortfall in money.

   MR JUSTICE FRASER:  I know that.  But you are not relying on

       or pointing to any alternative clause in the NTC which

       you say is more suitable for a recovery.  If it is

       recoverable or if it is covered by the parties'

       contractual agreement in writing, it is here.

   MR GREEN:  It is.

   MR JUSTICE FRASER:  And if it is here, it must be the words

       "any resulting shortfall in the money payable", because

       it is not going to be a deficiency in stock.

   MR GREEN:  Exactly.  So if recoverable at all, it is only

       recoverable within the parameters of those.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  And we respectfully submit that 12(12) when

       drafted, or as sensibly understood and properly

       construed, does not include errors -- does not include

       losses which are not losses --

   MR JUSTICE FRASER:  I understand that.  That is a slightly

       different point.  Because the manual only comes into

       play in terms of the date when the amount is due to the

       Post Office.

   MR GREEN:  Precisely.  And that could be ascertained if you

       read those six lever-arch files.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  So I accept that is not too uncertain to be

       enforceable in that respect on its --

   MR JUSTICE FRASER:  Well, that is just a temporal

       obligation.

   MR GREEN:  A temporal obligation.  So it is only if it falls

       within that, and I think it is perhaps because we adopt

       a narrower construction of 12(12) that we don't disagree

       about 4.1 effectively implementing a slightly strangely

       worded version of the same obligation.

           So my learned friend says it is impossible for

       Post Office to bear the burden of showing how an error

       occurred at the branch, but we respectfully -- he says

       that in his closing.  We respectfully say that there is

       an anterior question before you even get to that which

       is whether an error occurred at the branch.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  At all.

   MR JUSTICE FRASER:  That is all wrapped up with the

       inferential finding which I am invited to make -- or,

       sorry, a finding on the inference, not an inferential

       finding.

   MR GREEN:  Precisely.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  And your Lordship has the short point on the way

       the case is pleaded against us from 93 to 94 which I am

       hesitant to even take your Lordship to.  But the short

       point is there are linguistic gymnastics required to

       invert the clear words of 12(12) to turn what is a clear

       category of loss, a defined category of loss for which

       subpostmasters will be responsible, into an inverted

       provision which makes them responsible for all losses

       subject to a proviso on which they bear the burden of

       proof.

   MR JUSTICE FRASER:  I have that point.  That is just the

       burden of proof issue put in different terms.

   MR GREEN:  My Lord, as to the burden of proof, both in

       opening at paragraph 89(c), footnote 67 {A/2/26}, and in

       closing at paragraph 138 on page {A/8/55}, the defendant

       takes a position which we also say is an important

       change of case.

   MR JUSTICE FRASER:  All right.  Just give me one second.

           (Pause)  So paragraph 138.

   MR GREEN:  Paragraph 138 of closing on {A/8/55}.  Opus 55,

       internal 51.  Paper-based 51.

           So if your Lordship looks at 138(c):

           "Third, as to the burden of proof, although this is

       not strictly a matter of contractual construction ..."

           Footnote 90:

           "This point does not, therefore, fall within

       Common Issue 8."

           That is not how the case is pleaded, nor is it

       consistent with what was said on 20 February 2018.

   MR JUSTICE FRASER:  20 February 2018.  Was that an

       interlocutory?

   MR GREEN:  Interlocutory hearing, CMC.  Nor is it consistent

       with the voluntary further information provided

       in September in relation to 93 and 94.

   MR JUSTICE FRASER:  You had better show me the

       February 2018 ...

   MR GREEN:  My Lord, can I start -- I probably ought to start

       with the pleading, 93 and 94, because that is actually

       properly the starting point for the analysis which is in

       bundle {B3/2/42}.  Paragraph 93 deals with where the

       burden should lie.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  And 93(2) {B3/2/43} says that subpostmasters bear

       the burden of proving that a shortfall did not result

       from losses for which they were responsible.  The legal

       burden.

   MR JUSTICE FRASER:  Sorry, where are you looking?

   MR GREEN:  Sorry, 93(1)(b) at the foot of page {B3/2/42}.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  And that is a pleading to, and denying, as

       your Lordship will see in the first line of 93,

       paragraph 55 of the generic Particulars of Claim.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Which are at {B3/1/24}.  Your Lordship sees

       there:

           "... on a proper construction of section 12,

       clause 12 the subpostmaster is not strictly liable and

       is only liable for actual losses caused by the

       negligence, carelessness or error of the subpostmaster

       or his assistant, as to which the contractual burden of

       proof was on the defendant."

           It was on that footing that the parties were

       proceeding.  If we go back to the Generic Defence at

       {B3/2/43}, at paragraph 94 it is important to note that

       in relation to the construction of 12(12) at 94(1):

           "Section 12, clause 12 should be construed in

       accordance with the principles set out in paragraph 93

       above."

           So the defendant's positive case was that the proper

       construction of 12(12) would put the legal burden that

       we see on the previous page on subpostmasters.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  So if we can now go --

   MR JUSTICE FRASER:  The same arises in 94(2) actually.

   MR GREEN:  Indeed.  I am just giving obvious examples.

       There are others.  My Lord, if it is useful, not only

       did we throughout the run-up to this hearing --

   MR JUSTICE FRASER:  I don't need to know about that.

   MR GREEN:  -- approach it on that basis.  But on the VFI,

       the Voluntary Further Information, that is of

       significance.  {B4/8/1} which is the Voluntary Further

       Information provided in advance of the 10 October

       hearing on 26 September.

   MR JUSTICE FRASER:  Yes, I remember this.

   MR GREEN:  Can we just go to the third page, because it is

       quite important. {B4/8/3}.

   MR JUSTICE FRASER:  I don't know which page you want to be

       on.

   MR GREEN:  It has 44 at the bottom of it.  It is page 3 with

       paragraph 2 on it, and it says:

           "For the purpose of the Common Issues trial,

       Post Office provides the following further particulars

       of its case as pleaded in paragraph 94(1) ...

       Post Office's case is that section 12(12) of the SPMC

       should be construed in a way that is consistent with the

       general points made regarding the burden of proof in

       paragraphs 93(1) and 93(2) and 93(3) above."

           So they bedded in their point on the burden of proof

       for the purposes of the Common Issues trial.  So we

       respectfully make two points --

   MR JUSTICE FRASER:  I know.  I asked you to show me

       the February 2018 --

   MR GREEN:  I am so sorry, I thought your Lordship didn't

       want to --

   MR JUSTICE FRASER:  No, I said I do want you to show me

       that.

   MR GREEN:  I misunderstood.  February 2018, the skeleton for

       that is at --

   MR JUSTICE FRASER:  What date in February.

   MR GREEN:  20 February 2018.  {B8.4/2/7}.  It is

       paragraph 19 of that statement.  Halfway down, the

       disclosure on related matters.

   MR JUSTICE FRASER:  This was an interlocutory on disclosure,

       was it?

   MR GREEN:  Yes:

           "They argue that this justifies wide-ranging

       disclosure on related matters.  That is wrong.  The only

       matters relevant to the proper construction of the

       contract (as to burden of proof or anything else) ..."

           My Lord, I only give that example because --

   MR JUSTICE FRASER:  I understand.  I thought you were going

       to take me to something that dealt with what I was

       in fact told.

   MR GREEN:  You were told -- the transcript of that hearing

       at {B8.4/4/52} at letter H is what my learned friend

       said about what was anticipated to be resolved.

   MR JUSTICE FRASER:  Where are we?

   MR GREEN:  At letter H at the bottom:

           "My understanding was that you wanted a computer

       centric investigation looking at Horizon.  The main

       thrust of the case is Horizon does not work or does not

       work properly for these individuals.  So you thought,

       once you sort out the Common Issues and what the

       relationship was and the incidence of the burden of

       proof and such like ..."

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  So, my Lord, that is the scene.  The transcript

       is replete with references by me elsewhere to the

       importance of the burden of proof.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  So we respectfully say that is not our

       understanding of the Common Issue 8; that it doesn't

       include a contractual question of construction as to the

       allocation of the burden of proof, our submission is it

       clearly does.  That is the footing we have been working

       on up until receiving the opening which disclaimed it as

       part of Common Issue 8 --

   MR JUSTICE FRASER:  Up to receiving the opening?

   MR GREEN:  Up to receiving the opening, which disclaimed it

       in a footnote.  That footnote is at {A/2/26}.

   MR CAVENDER:  My Lord, I hesitate to interrupt my learned

       friend but I think there may be a misunderstanding here.

       Our position is, so far as there is a contractual

       allocation of burden within the clause, of course it is

       within the issue.  Our point is merely highlighting

       there are other issues of burden of proof that strictly

       are not matters of construction and are general matters

       of burden of proof.  If my learned friend read on to the

       bit he referred from the closing, we say, even though

       those points are not part of the Common Issue properly

       construed, nonetheless we give our submissions on them

       anyway.  So we are not suggesting that anything is cut

       out.  We are just pointing out, if there is

       a contractual construction obviously of burden, then

       of course you should find it.  We are just highlighting

       there are other issues of burden outside of that that

       may impact on the effect of that clause, and we

       highlight one in our closing and say what we say about

       that.

   MR JUSTICE FRASER:  So the contractual burden of proof you

       accept is --

   MR CAVENDER:  Is live.  So far as the clause does that.  If

       my learned friend is right -- he says the clause does

       that.  We say it doesn't expressly, and probably not

       implicitly either.  But insofar as you say I am wrong,

       then of course you find that.  We go further and say:

       actually, strictly speaking, this is an issue of burden

       outside a contractual allocation.  Not being unhelpful,

       if you look at our closing, we then go on to say what we

       say that is.

   MR JUSTICE FRASER:  Thank you very much.  Mr Green, I think

       the same -- I might be wrong --

   MR GREEN:  The same warning about their case.

   MR JUSTICE FRASER:  No, I think the footnote that you took

       me to first at 138 is in fact exactly the same as the

       footnote that you have taken me to in the opening.

       Because Mr Cavender has produced composite submissions

       that build on and use his opening.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  That point is going to have to be

       resolved anyway at some point.

   MR GREEN:  Precisely.  We say it obviously does allocate the

       contractual burden and that the burden --

   MR JUSTICE FRASER:  It either does or it doesn't but what

       I don't think is going to help either party is if I --

       I can't possibly construe 12(12) without dealing with

       whether it does or not.

   MR GREEN:  Quite.

   MR JUSTICE FRASER:  I think I have been told by various

       people over the year that that was one of the most

       important issues anyway.

   MR GREEN:  Precisely.

   MR JUSTICE FRASER:  All right.

   MR GREEN:  My Lord, that was actually all I wanted to say

       really about the points of construction, unless there

       are any particular points that I can --

   MR JUSTICE FRASER:  Not on construction.

   MR GREEN:  -- help the court with on construction.

   MR JUSTICE FRASER:  So that is liability for loss done.

   MR GREEN:  Liability for loss we have done.  Then --

   MR JUSTICE FRASER:  Responding to the key points.

   MR GREEN:  Responding to some of the key points.  My Lord,

       can I just begin with the closing submissions at

       paragraphs 36 to 38.

   MR JUSTICE FRASER:  How many of these do you have?  Just

       because I am interested.

   MR GREEN:  It depends how I break them down but about --

   MR JUSTICE FRASER:  It depends how you count them.

   MR GREEN:  It depends how I count them.

   MR JUSTICE FRASER:  Try starting at 1.

   MR GREEN:  I will go up from there.

   MR JUSTICE FRASER:  And add one from there.

   MR GREEN:  I think six points.  The first of those is the

       closing at paragraphs 36 to 38.  {A/8/17} to {A/8/18}.

           My Lord, if I can just show your Lordship, this is

       in a run of paragraphs where fairly lively complaint is

       made all the way through to page 21, paragraph 51

       {A/8/21} which is where this section ends up.  The

       significance of it is twofold: first to demonstrate by

       way of examples, because there is simply too much to

       deal with if I deal with every point, by dealing with

       examples that are themselves obviously wrong and

       misplaced.  And, secondly, to respectfully invite the

       court to be fairly cautious in approaching the passage

       as a whole on the basis that we have very carefully

       sought -- whether we have achieved it or not, but we

       have conscientiously sought fairly to record the

       evidence as in fact it came out at some length in our

       closing submissions and what that evidence was relevant

       to.

           The criticism at paragraph 36 is in relation to the

       wider evidence that appears to be objected to

       notwithstanding the outcome of the hearing on

       10 October:

           "Now the promised case as to relevance has failed to

       materialise, it is clear that Cs intention must always

       have been to engineer a situation in which they can

       fight out the merits of the lead claims on an unlevel

       playing field.  Cs must anticipate for example that

       the absence of full evidence and disclosure puts them in

       a stronger position to obfuscate in relation to their

       own post-contractual conduct (although ultimately one of

       the lead Cs felt she had to invoke privilege against

       self-incrimination as regards her accounting to

       Post Office).  All this must be in the vain hope that

       the court might be influenced by inadmissible evidence

       in determining the Common Issues."

           37:

           "It remains acutely important not to stray into

       issues that fall to be determined at the Horizon trial

       and/or future trials on breach and liability."

           It goes on at 38:

           "In this context, it was wholly unfair and

       unattractive for Cs to criticise Post Office's witnesses

       for having failed to address irrelevant material in

       their witness statements ..."

           And the example given at the bottom of the page is

       Angela Van Den Bogerd's -- it is said there correctly

       directing herself, as it were, to comply with the

       directions as to the scope of evidence and limiting

       herself to admissible evidence.

           We respectfully say that is demonstrably wrong for

       a number of reasons, and we respectfully reject any

       suggestion of any attempt to mislead the court or

       distract the court from what the court should properly

       determine.

           The quick reference to the paragraphs that I already

       took your Lordship to in Angela Van Den Bogerd's

       evidence about the responsibility of subpostmasters

       being totally in control of the accounts on Horizon,

       paragraphs 142 --

   MR JUSTICE FRASER:  And 143.

   MR GREEN:  -- to 145, exactly, make plain that it was

       incredibly important on the question of agency and

       accounting for the court to hear evidence that is at

       least available for your Lordship to find does not

       precisely accord with the picture set out in

       the evidence that the defendant itself chose to adduce

       on issues that it itself had pleaded, paragraphs 73, 93

       and 94, as to what was peculiarly within the knowledge

       of subpostmasters, on the footing that that is how these

       contracts should be construed.

           Your Lordship will recognise that phrase from the

       submissions that we made on 10 October and the role

       those submissions played in your Lordship's resolution

       of that issue.  So we respectfully reject the trenchant

       criticism made of the way the claimants' case has been

       presented in those respects.

           The same is true in relation to paragraph 99, which

       I will just give your Lordship the reference for just

       before the short adjournment.  That is {C2/1/29}.

   MR JUSTICE FRASER:  Paragraph 99 of what?

   MR GREEN:  Of Angela Van Den Bogerd's evidence.  Just to

       give one other example.  The importance of training in

       reducing errors and shortfalls is acknowledged at 99.1

       and this is in the context of a list in 99 for there

       being strong incentives for Post Office to deliver

       effective training.  If we go forward to paragraph 104.4

       {C2/1/31}:

           "No matter the method of delivery, there have been

       some core features that have always been covered in the

       initial training programmes ..."

           Your Lordship will see, for example, 104.3 is the

       submission of the daily, weekly and monthly accounts,

       104.4, how to declare and investigate and make good and

       dispute shortfalls and 104.5, how to get further advice

       and support.  There is passing reference to the branch

       support programme and what deficiencies were recognised

       within it, and Angela Van Den Bogerd was, we

       respectfully say, rightly, necessarily and fairly

       cross-examined in relation to those issues.  It was

       against that background on training that I asked her:

       why is it that we have had to go through all this

       material to correct the impression conveyed in your

       witness statement?

           My Lord, we reject the criticism that is made in

       the closing submissions in relation to those issues for

       those reasons.  There are further points which I will

       have to develop after lunch.

   MR JUSTICE FRASER:  How are you getting on in terms of time?

   MR GREEN:  In good shape.  I'm not sure what your Lordship's

       list looks like though.

   MR JUSTICE FRASER:  It is modest.

   MR GREEN:  I am grateful.

   MR JUSTICE FRASER:  We will come back, in a spirit of last

       week indulgence, at 2.05 pm.

   (1.00 pm)

                     (The short adjournment)

   (2.05 pm)

   MR GREEN:  My Lord, the second of my six points is the

       criticism that the claimants sought to explore technical

       matters, which we find at paragraph 40 of my learned

       friend's written closing on internal page 15 {A/8/19}.

       There are two small points and one larger one.

           The transaction log printouts your Lordship will

       remember at paragraph (a), and how they arose we say is

       perfectly acceptable for the court to have in mind,

       particularly on the basis of the evidence being led by

       the defendant, including in relation to the actual --

       what actually happened with those, but also of course

       paragraph 145, for example, Angela Van Den Bogerd's --

       Mrs Van Den Bogerd's own evidence, where she says the

       subpostmasters were best placed to investigate.

           At subparagraph (d) there is a small point which

       I think your Lordship has already noted which is the

       fact that Mrs Van Den Bogerd refers herself at footnotes

       24 and 31 of her own witness statement to the

       possibility of remote alteration of data by Fujitsu and

       puts the matter in issue, albeit in footnotes, in her

       own witness statement.  That's at (d), paragraph 40(d)

       of my learned friend's written closing.  And footnote 24

       on page 23, which is {C2/1/23}, and {C2/1/39} for

       footnote 31.

           Then (e), and this is an important example of the

       second function of this exercise, my Lord, about the

       caution which we invite the court to exercise in

       relation to these passages generally.

           It says here at 40(e) {A/8/19} that:

           "Mr Green even sought to cross-examine

       Mrs Van Den Bogerd on parts of her witness statement for

       the Horizon trial ... It is hard to imagine a starker

       example of claimants' refusal to respect the structure

       of this group litigation and the scope of the Common

       Issues trial."

           Your Lordship knows how that arose.  However, it is

       relevant to show your Lordship paragraph 140 in that

       witness statement, where Mrs Van Den Bogerd -- which is

       not on Opus.  She says, she introduces that part of her

       witness statement by saying:

           "For the sake of brevity, I do not intend to fully

       respond to every allegation in relation to the TCs

       raised by Mr Abdulla but to quickly address a few

       examples to show that these matters are not relevant to

       the Horizon issues."

           So going back to the criticism, it is said it is

       hard to imagine a starker example of the claimants

       refusing to respect the structure of group litigation

       for cross-examining her on Horizon issues, when the very

       passage itself specifically disavows their relevance to

       those issues.

   MR JUSTICE FRASER:  I'm not sure that necessarily takes it

       very much further.  You put the passage to her, as

       I recall, to demonstrate that her answer was potentially

       misleading.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Because she said she had come to the

       matter cold.  And you put that document to her to

       demonstrate, as you put it, that she hadn't.

   MR GREEN:  Precisely, my Lord.  All I am saying is --

   MR JUSTICE FRASER:  Whether she came to the matter cold or

       not is not a Horizon issue.  It goes to her credibility

       in this trial.

   MR GREEN:  Yes.  My Lord, it is not irrelevant that she

       herself disavows it as being a Horizon issue.

   MR JUSTICE FRASER:  That is a secondary point if it is

       a point at all.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  The real point is: was the content of

       what she said in her first answer truthful and credible

       evidence or was it not?

   MR GREEN:  Precisely.  Your Lordship already has that point.

   MR JUSTICE FRASER:  And that is something that I may or may

       not have to decide depending on how I approach the

       matter.

   MR GREEN:  My Lord, indeed.

           The third point is cross-examination in relation to

       contractual terms, and that splits out into express and

       implied which my learned friend deals with at 42 and 44.

       {A/8/20}.

           I'm not going to go through the express terms of

       cross-examination, your Lordship has the context in

       which those questions were asked.  There is just one

       point of clarification.

           At 42(g) {A/8/21}:

           "Mr Shields was asked to comment on various

       provisions of the SPMC in relation to suspension.

       Bizarrely, he was even asked to comment on the mains

       NTC, a contract which is not within the scope of the

       common issues."

           Pausing there, it is correct that none of the lead

       claimants were on the mains NTC, however, if

       your Lordship looks at {B1/1/1}.

   MR JUSTICE FRASER:  What you were going to say is ...

   MR GREEN:  If your Lordship looks at the top, the NTC:

           "Local branch or main branch types."

           The two, the locals and mains NTC, it is not

       correct.  No huge deal but --

   MR JUSTICE FRASER:  I was going to say --

   MR GREEN:  -- it is right for your Lordship to know.

   MR JUSTICE FRASER:  Well, there is no contractual term

       within the mains NTC that falls separately for

       construing in this trial, or is there?

   MR GREEN:  There are slightly different provisions but not

       materially for these issues.

   MR JUSTICE FRASER:  I know there are slightly different

       ones, but for these issues the terms of the mains NTC

       are not for me to resolve.

   MR GREEN:  Distinctly from others.

   MR JUSTICE FRASER:  Have I misunderstood that?

   MR GREEN:  No, I think that is correct.

   MR JUSTICE FRASER:  And that is the case notwithstanding how

       NTC has been defined at the beginning of the Common

       Issues, isn't it?

   MR GREEN:  My Lord, yes.  It is just that the mains and

       locals were two of the contracts that --

   MR JUSTICE FRASER:  I know that.  But there is no separate

       equivalent to clause 12(12) or 4.1 on NTC mains which is

       a separate common issue which you are asking me to

       resolve the construction --

   MR GREEN:  No, it is the same construction point.

           My Lord, so then --

   MR JUSTICE FRASER:  Is that your third point?

   MR GREEN:  The third point is terms and that was express,

       that is 3(a), and implied is 3(b) which is at

       paragraph 44.

           So my learned friend -- the criticism is that we

       cross-examined witnesses about terms of contracts and

       whether they understood them.  There are a number of

       points that can be made in relation to that, including

       the people who are supposed to explain them on branch

       transfer not knowing what they meant.

   MR JUSTICE FRASER:  So where am I looking now?

   MR GREEN:  Paragraph 44.

   MR JUSTICE FRASER:  Still 44 in Mr Cavender's closing

       {A/8/22}.

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  When I say "Mr Cavender", I don't mean

       to downplay the involvement of the rest of the team,

       I am just using shorthand.  The Post Office closing.

   MR GREEN:  Indeed, my Lord.  The point taken there is:

           "... Post Office witnesses were asked to express

       a view on the appropriateness of alleged implied terms."

           Just pausing there for a second, if we can go to the

       transcript of {Day2/90:25}.  This is the

       cross-examination of Mr Bates.  If we go over the page

       {Day2/91:1}, the question over the page is:

           "Question: And the reasonable person in your

       position would have expected to be provided with such

       training that was necessary on that system?  Is that

       fair?"

   MR JUSTICE FRASER:  Where are we supposed to be looking?

       Because my screen doesn't say what you have just said.

   MR GREEN:  If we go back a page to the foot of page 90 at

       line 25 {Day2/90:25}.

   MR JUSTICE FRASER:  This is Mr Bates' cross-examination by

       Mr Cavender.

   MR GREEN:  Indeed.  So this is the premise for implied --

       certain implied terms that are in issue being put by my

       learned friend to every single one of the lead

       claimants.

   MR JUSTICE FRASER:  "And the reasonable person in your

       position would have expected to be provided with such

       training ..."

           And he said:

           "Answer: I certainly would have hoped ..."

           And then there's another question.

   MR GREEN:  "... reasonable Helpline ..."

           And then --

   MR CAVENDER:  My Lord, again I hesitate but it might help,

       but this of course was on claimant's case for variation,

       there was nothing about implied terms.

   MR JUSTICE FRASER:  I have to say I am a bit puzzled about

       why this is -- why you want to show me this.

   MR GREEN:  My Lord, one of the --

   MR JUSTICE FRASER:  I think we're on two or three levels of

       a subpoint that I might have lost the thread of.

   MR GREEN:  The short point is that whilst we cross-examined

       Post Office witnesses about what people might reasonably

       have expected in relation to training support, various

       other procedures, and there are criticisms of that, it

       is fair to observe that my learned friend cross-examined

       specifically on matters which were in issue on

       contractual construction and/or implied terms on the

       same expectations prior to us doing it.

           And not only that, if one looks at {H/19.1/1} --

   MR JUSTICE FRASER:  I'm not sure if any of this really takes

       you anywhere, actually, but ...

   MR GREEN:  This was a table that I personally typed up and

       invited Post Office to respond to, to try and identify

       the true difference between the parties.

   MR JUSTICE FRASER:  As part of pre-trial preparation or

       something?

   MR GREEN:  Quite some time ago, my Lord, yes.  If

       your Lordship looks at 64.1:

           "To provide adequate training and support

       (particularly if and when ..."

           So that's the term we were contending for,

       defendant's case.

           "Eg ..."

           This was suggested --

   MR JUSTICE FRASER:  By you?

   MR GREEN:  By me.  I actually did the whole table and filled

       in an example for them to agree or not.

           "Eg to provide only such training as was both

       necessary and reasonable."

   MR JUSTICE FRASER:  In other words, to identify the

       difference between the parties on the nature and scope

       of the implied terms.

   MR GREEN:  Yes.  Because if it is a distinction without

       a difference, it is pointless having a massive fight

       about it.

   MR JUSTICE FRASER:  And they wouldn't fill it in.

   MR GREEN:  If you look at {H/19/1} --

   MR JUSTICE FRASER:  You give up your punchlines only very

       grudgingly.

   MR CAVENDER:  My Lord, can I give it?  We did fill it in.

   MR JUSTICE FRASER:  You did.  Alright.

   MR GREEN:  He did fill it in, it's not quite the punchline.

       You're going to have to look and see how.

           If you go over the page {H/19/2}, your Lordship will

       see what the answer is there.

   MR JUSTICE FRASER:  Why couldn't we have started with H/19?

       Did you not like the font they changed it into?

   MR GREEN:  The only point was that the term I suggested is

       precisely in the terms in which my learned friend put

       his case to each lead claimant.

   MR JUSTICE FRASER:  But Mr Green, where does that -- or how

       does that advance the cause of judicial knowledge?

   MR GREEN:  The short point --

   MR JUSTICE FRASER:  What is the short point?

   MR GREEN:  The short point is my learned friend appears to

       have changed from a position, and this arises in

       relation to the utility point on implied terms which we

       have covered in our -- which I have highlighted to

       your Lordship already.  We covered it in our opening as

       well, the refusal to descend into specific terms,

       specific incidents or specific content.  Your Lordship

       will see it no better illustrated than at 64.1 in

       response to an example text provided by me which

       mirrors --

   MR JUSTICE FRASER:  Just give me a second.  (Pause)  Right.

   MR CAVENDER:  My Lord, can I make sure that "common terms"

       there we are talking about are the agreed implied terms.

   MR JUSTICE FRASER:  Thank you very much.  So the two which

       were conceded.

   MR CAVENDER:  Exactly.

   MR JUSTICE FRASER:  Right.  Is there another punchline

       coming?  Because the suspense really is almost

       unbearable.

   MR GREEN:  My Lord, that was the short point.

   MR JUSTICE FRASER:  I am not sure I even understand the

       point, actually, Mr Green.  I am not trying to be

       obtuse.

   MR GREEN:  My Lord, I previously made submissions in

       relation to the defendant's refusal to condescend to any

       particulars of the implied obligations or their content.

   MR JUSTICE FRASER:  Correct.  And I think I made certain

       comments in opening generally as to whether or not that

       is correct is effectively a forensic squabble of no

       import.  Maybe "no import" is putting it a little high.

       It is not going necessarily to help me resolve the legal

       points of construction.

   MR GREEN:  My Lord, perhaps not, but we thought it relevant

       for your Lordship to know that in the context where

       there is criticism of putting matters going to

       contractual construction, my learned friend has

       expressly put -- I have the references for every single

       witness -- the positive case about expectations in

       relation to training and other matters in terms which

       they were invited to agree and responded in that way.

       So whether that represents a recognition of the need for

       implied terms of that sort, we will have to hear from my

       learned friend.

   MR JUSTICE FRASER:  Okay.  I am still struggling as to the

       relevance of the point.  But if you have a sheet -- not

       now, obviously.  If you have a list of references where

       Mr Cavender put to your witnesses points which he says

       on the obverse of the coin are points that you put to

       his witnesses and shouldn't, then you have just added

       a tiny little bit of homework which is: give me the

       references in due course.  Just literally on a piece of

       paper.

   MR GREEN:  I can read them out now.

   MR JUSTICE FRASER:  How many are there?

   MR GREEN:  There are six.  Five are left because I have done

       one.

   MR JUSTICE FRASER:  Give me the whole six.

   MR GREEN:  So it's Mr Bates, Day 2, page 90, line 25

       {Day2/90:25}.

           Mrs Stubbs, Day 2 --

   MR JUSTICE FRASER:  You are going a bit too quickly.

   MR GREEN:  Sorry.  Mrs Stubbs, Day 2, page 172, line 9

       {Day2/172:9}.

           Mr Sabir, Day 3, page 126, line 16 {Day3/126:16}.

           Mrs Dar, Day 5, page 46, lines 11 to 15

       {Day5/46:11-15}.

           Mr Abdulla, Day 4, page 84, line 7 {Day4/84:7}.

           And Mrs Stockdale, Day 4, page 180, line 9

       {Day4/180:9}.

   MR JUSTICE FRASER:  These are incidents, you say, where

       Mr Cavender effectively cross-examined your witnesses on

       what is effectively the same basis, but obviously from

       a different end of the telescope, on what you are being

       criticised for doing to his witnesses.

   MR GREEN:  Precisely.

   MR JUSTICE FRASER:  Thank you very much for those

       references.  Can we now move on.

   MR GREEN:  The fourth point is losses and gains policy.

   MR JUSTICE FRASER:  So that wasn't even a whole point, the

       one we have just got bogged down in.  It was a fraction

       of a point.

   MR GREEN:  My Lord, losses and gains is at paragraphs 45 and

       47 {A/8/23}.  The criticism is taking witnesses to

       Post Office's own internal documents.

           And four lines down:

           "The most notable example was the repeated

       references to the 'Losses and Gains' policy document at

       {F3/8/1} dating from 1998."

           Two points about that.  First, it is implied that

       because it is dating from 1998 there is some lack of

       currency.

   MR JUSTICE FRASER:  Mrs Van Den Bogerd said that actually

       that wasn't the policy, but I don't think I have yet

       been shown a document that dates later than that which

       in fact sets out whatever the new policy is if it is in

       a single document.

   MR GREEN:  We did enquire about the losses and gains

       policies.  There is no other disclosed document to my

       knowledge which is a losses and gains policy so-called

       anywhere.  And at {F4/66/7} ...

   MR JUSTICE FRASER:  What is this?

   MR GREEN:  This is a document from 16 June 2010 which

       specifically refers to the POL "Losses and Gains

       Policy".  So whatever --

   MR JUSTICE FRASER:  In that line immediately under the

       slide?

   MR GREEN:  And in the slide, my Lord.  Twice.

   MR JUSTICE FRASER:  Yes, I see that.

   MR GREEN:  So it hadn't changed its name, there is only one

       document of that name, it is still being referred to in

       2010.  And when you go back and look, although this

       doesn't take you that far, it does refer to stock checks

       and those sorts of things when you go back to the

       original documents --

   MR JUSTICE FRASER:  Understood.  So you are saying the

       inference is that actually that is the losses and gains

       policy.

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  Even though it is dated 1998.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  At paragraph 47 {A/8/23} it is suggested we

       dramatically misstated the content of the losses and

       gains document in cross-examination.  We reject that in

       its entirety.  This paragraph conflates two quite

       different provisions in the SPMC and --

   MR JUSTICE FRASER:  Sorry, "this paragraph" of the closing

       or --

   MR GREEN:  This paragraph in the closing wrongly conflates

       two quite separate provisions in the SPMC to which I in

       fact referred, because section 12 -- 12(12) is on

       {D2.1/3/53}, that is the provision for losses that we

       know well.  My learned friend canvasses there the fact

       that it is unfair because in fact in the document it

       refers to circumstances in which mitigation might be

       admissible.

   MR JUSTICE FRASER:  No, but that is in the losses and gains

       document, isn't it?

   MR GREEN:  My Lord, yes.  He is criticising the misstatement

       by the claimants in relation to the losses and gains

       statement, because he is pointing out that in fact the

       losses and gains document at {F3/8/4} then states:

           "... this stance may be varied in appropriate

       circumstances."

           Where mitigation might be admissible.

   MR JUSTICE FRASER:  Give me a second.

   MR GREEN:  It's the large paragraph in the middle.

   MR JUSTICE FRASER:  Just give me a second.

           Mr Green, I am not trying to be unhelpful but

       I genuinely am struggling to see what it is you are

       seeking to do.

           In 47(a) the Post Office is effectively saying --

       whether they are right or not let's put to one side --

       that the losses and gains document is effectively a full

       and fair representation of what clause 12(12) does.

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  That is what they are saying.

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  And that might be right or it might be

       wrong.

   MR GREEN:  I will explain why it is wrong.

   MR JUSTICE FRASER:  I know you think it is wrong.  All one

       has to do is actually read the two different words of

       the two different provisions to come to a conclusion as

       to whether it is right or wrong.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  But what exactly is it that you are

       trying to achieve by pointing out to me what you say is

       unfair criticism of you?

   MR GREEN:  My Lord, simply that your Lordship should have in

       mind a specific contractual provision in the SPMC at

       section 12, clause 17, for relief.  That was a point I

       specifically put, I can't now remember to which witness,

       that relief in certain circumstances is a separate

       provision in the SPMC which we see at {D2.1/3/54}.

   MR JUSTICE FRASER:  Give me that reference again.

   MR GREEN:  {D2.1/3/54}.

   MR JUSTICE FRASER:  Which is clause what?

   MR GREEN:  Clause 17.

   MR JUSTICE FRASER:  Yes, "Relief".  Okay.

   MR GREEN:  So --

   MR JUSTICE FRASER:  So you are saying: don't forget 12(17)

       when you read this because actually relief is dealt with

       in 17, and this is saying that 12(12) is fairly

       represented in the losses and gains document.  Is that

       it?

   MR GREEN:  It is not, indeed.

   MR JUSTICE FRASER:  It's not what you're saying or it is?

   MR GREEN:  That is what I am saying and it is not fairly

       represented in the losses and gains --

   MR JUSTICE FRASER:  Right.  Well, whether it is fairly

       represented or not, that is one level of detail yet

       further than how you introduced it, which is I think the

       Post Office is criticising the claimants unfairly for

       how you put the document.

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  And you say it is not unfair.

   MR GREEN:  (a) we are right, and (b) we are therefore not

       unfair to put it on terms which are correct based on the

       terms of the contract.  That is the point.

   MR JUSTICE FRASER:  I understand.

   MR GREEN:  My Lord, that is four.

           Five relates to the NFSP.  For that we need

       paragraphs 13 and 14 of the closing which are on

       internal page 5, Opus page 9.  {A/8/9}

   MR JUSTICE FRASER:  That it was an unjustified attack.

   MR GREEN:  That it was an unjustified attack on the basis

       that the approval of the terms of the NTC was somehow

       linked to the conclusion of the new agreement.

           The short points in relation to that --

   MR JUSTICE FRASER:  Which is said it was an insinuation, and

       actually I think you would say it is higher than that.

       You fairly put it as a proper point.

   MR GREEN:  Yes.  Their independence is compromised by the

       funding.  In fact it arose on what was being discussed

       in that email, that was the context --

   MR JUSTICE FRASER:  The email written in blood.

   MR GREEN:  Exactly.

   MR JUSTICE FRASER:  Or, rather, not, but promising an

       agreement in blood.

   MR GREEN:  Agreement written in blood.  That email is clear

       in its own terms what was being discussed and the link

       that was being made.

   MR JUSTICE FRASER:  But in any event, the NFSP's

       independence or otherwise has been raised in these

       proceedings by the Post Office who in their opening

       said, to support their opposition to your claim, the

       NFSP don't support you.

   MR GREEN:  Precisely.  And they also I think say that there

       may be some relevance to the NFSP negotiating or being

       involved in negotiating the contracts for where we are

       on the Wood spectrum of the sort of contract.  So it's

       doubly relevant --

   MR JUSTICE FRASER:  But as far as the evidence in this trial

       is concerned, that can only affect the NTC, not the

       SPMC, because there is no evidence before the court.

       And my understanding of the SPMC, that is effectively a

       historical document that started when whoever it was,

       whatever the legal entity was called, probably

       Royal Mail, owned everything.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  And that has been in place since the

       1990s, is that right?

   MR GREEN:  Quite.  1991 I think.

   MR JUSTICE FRASER:  And the Post Office's evidence, which

       you then elicited by your cross-examination, only

       relates to 2010 onwards.

   MR GREEN:  Indeed.  Precisely.  The only point of fact

       missing from the analysis here, in addition to those

       points, is that if we look at {G/91/1} and {G/92/1}

   MR JUSTICE FRASER:  This is the purchase order and the union

       activities invoice.

   MR GREEN:  Precisely.  And your Lordship will see that is

       dated 5 April 2012.  And the point made at paragraph

       (b), if we go back to page 6, or page 10 on Opus

       {A/8/10}, is that the NFSP approved the terms of the NTC

       in October 2012.

           We know that although the grant agreement, which

       they wish to keep the terms secret of, was later, it is

       nonetheless relevant they are billing a quarter of

       a million pounds in April 2012.  And that does not come

       springing out of paragraph (b).

   MR JUSTICE FRASER:  No.  That may or may not be a good point

       so far as the NTC is concerned, but the primary position

       vis-a-vis the SPMC remains the same.

   MR GREEN:  It does, yes.  It is a point of correction of the

       impression one might get from that.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  Then the third point is in that paragraph (c),

       which is that the NFSP intended to keep the terms of the

       funding agreement secret from SPMs was also demonstrably

       wrong.

   MR JUSTICE FRASER:  That is what Post Office is submitting.

   MR GREEN:  Indeed.  And your Lordship I think has the

       chronology of that, which is that the MoU is only

       published itself --

   MR JUSTICE FRASER:  In 2015.

   MR GREEN:  Indeed, in 2015.  And then the grant --

   MR JUSTICE FRASER:  I still haven't seen any evidence about

       that.

   MR GREEN:  No, there hasn't been very much forthcoming.

   MR JUSTICE FRASER:  There hasn't been anything.

   MR GREEN:  Anything.

   MR JUSTICE FRASER:  But that is as it is.

   MR GREEN:  Quite.  And obviously the terms of the grant

       agreement are clear and the fact that it is not

       published until December 2016 is also clear.

   MR JUSTICE FRASER:  This was your Freedom of Information

       exploration.

   MR GREEN:  My Lord, yes.

   MR JUSTICE FRASER:  Was that the fifth and sixth points?

   MR GREEN:  That is the fifth point.  And the sixth point is

       just to briefly identify a few short points that arise

       in relation to each lead claimant's evidence which are

       made at the back of my learned friend's written closing

       starting at page 197 internally, which is {A/8/201}.

   MR JUSTICE FRASER:  Paragraph 197?

   MR GREEN:  Page 197.  And it's paragraph -- it's actually

       paragraph 574 really, 573 and 574 on page 197.

           I have different pagination.

   MR JUSTICE FRASER:  I think everyone has different

       pagination, that is why I keep asking for paragraph

       numbers.  So you want me at 573?

   MR GREEN:  573.  It is suggested:

           "... Mr Bates did receive the SPMC on 30 March 1998

       together with notification that his application had been

       successful.  His protestations to the contrary (and

       insistence that he did not get a copy until August 1999)

       were implausible."

           And if we go forward to paragraph 577 over the page

       {A/8/203}, the point that is being made at 577(b) is on

       4 August 1999 he says he has consulted his contract,

       which he said was very wordy.

           My Lord, we say it may well be that he misremembers

       whether he phoned up and got the copy from Manchester

       immediately before writing that letter or immediately

       after, but the point where it falls in August 1999 is

       not the same factual point as to whether he had it

       originally.

   MR JUSTICE FRASER:  Understood.

   MR GREEN:  Then in relation to Mrs Stubbs --

   MR JUSTICE FRASER:  Before you move on to Mrs Stubbs, just

       remind me: your case on Mr Bates' contract formation is

       that it was formed when?

   MR GREEN:  When he first signed the conditions of agreement.

   MR JUSTICE FRASER:  The calendar would be nice.

   MR GREEN:  31 March 1998.

   MR JUSTICE FRASER:  Right.  Now, Mrs Stubbs.

   MR GREEN:  In relation to Mrs Stubbs, this is paragraph 583

       {A/8/205}.  What is suggested at 583 is that she --

   MR JUSTICE FRASER:  Probably had a copy, and if she didn't

       she had every opportunity ask for one.

   MR GREEN:  Exactly.  There is no mention, my Lord, of the

       23 November letter.

   MR JUSTICE FRASER:  23 November?

   MR GREEN:  23 September letter that she was cross-examined

       about, which is the letter --

   MR JUSTICE FRASER:  Isn't that the one that is mentioned at

       the beginning of paragraph 579 {A/8/204}, which says:

           "On 23 September 1999 ..."

   MR GREEN:  Sorry.

   MR JUSTICE FRASER:  That rather does suggest it is

       mentioned.

   MR GREEN:  Sorry, your Lordship is absolutely right.  The

       existence of the letter is mentioned, but there is no

       explanation --

   MR JUSTICE FRASER:  For the two-month delay.

   MR GREEN:  Yes, for the two-month delay when she has been

       working there.

   MR JUSTICE FRASER:  I have the point.

   MR GREEN:  Your Lordship has the point.

   MR JUSTICE FRASER:  But it is wrong to say there is no

       mention of the letter because there is.  It starts with

       it.

   MR GREEN:  The letter is mentioned, exactly.

   MR JUSTICE FRASER:  But your case on her contract formation

       is a date that is about two months earlier, which she

       gave quite detailed evidence about.  I think it's the

       day after her husband had actually died.  4 August 1999.

       And that is when she was presented with different

       documents and --

   MR GREEN:  She was presented with a document which she

       believed was a banking details document.

   MR JUSTICE FRASER:  Exactly.

   MR GREEN:  An example of which we also saw in relation to

       another lead claimant.

   MR JUSTICE FRASER:  Yes.  And she made the point, I think,

       that it was as a result of providing her banking details

       on that document that they could start paying her,

       albeit they paid her as though she was an employee and

       made various deductions at source for PAYE and it took

       her a while to sort it out.

   MR GREEN:  Indeed.  Exactly.

           My Lord, in relation to Mr Sabir, at paragraph 589

       {A/8/209}.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  For your Lordship's note, it is paragraphs 273 to

       274 in our closing submission, we deal with his evidence

       on this point, which is at {A/6/125}, where we say that

       the cross-examination had no regard for the fact that

       English was his second language.  And what is suggested

       here --

   MR JUSTICE FRASER:  It is said here he has an apparently

       weak grasp of English in oral evidence, which is then

       relied on that it was variable, as though he was relying

       on it to assist him in giving different evidence than he

       would if English were his mother tongue.

   MR GREEN:  Indeed.  In that context, his account that he

       gives at paragraph 587 --

   MR JUSTICE FRASER:  I should just say for the sake of

       openness, just because I have read out that part of the

       Post Office submissions does not mean I am making any

       decision on whether that is well-founded or not yet at

       the moment.  There is a gulf between the parties about

       Mr Sabir's command of English and the degree to which

       that is relevant, but he was quite frank it is not his

       mother tongue.

   MR GREEN:  Indeed.  And at 587 there is a summary of his

       evidence which we respectfully say does not give a

       complete or fair picture, and we respectfully refer the

       court to our submissions at 275.3 and 275.7.

   MR JUSTICE FRASER:  Let me just look at what you are saying

       is wrong for a start.  Where is the summary that you say

       is -- 587, right {A/8/208}.  You say that is an unfair

       or incomplete or inaccurate summary.

   MR GREEN:  Indeed.  And if your Lordship looks at our

       closing submissions at 275.3 {A/6/126}.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Your Lordship will see there -- in fact when one

       looks at 275.3 and 275.7 as examples of his evidence,

       and we invite your Lordship to read that obviously in

       due course to have regard to the whole careful

       description of his evidence.  But it is perfectly clear

       that he made perfectly fair concessions about things

       that he could remember.  And then when he was asked

       "What can you remember?" which you see halfway down

       275.3, the question that was put to him, as we have

       described there on a fairly combative basis, he gave

       a measured and clear account of his recollection, and

       that does not come shining out of the account given of

       his evidence that you find at 587 at all.

   MR JUSTICE FRASER:  Understood.  So you invite me to prefer

       your summary of Mr Sabir's reliability in evidence than

       the Post Office's attack on him.

   MR GREEN:  Indeed.  I think that is basically the position

       with all the lead claimants.

   MR JUSTICE FRASER:  I had guessed that.

           So we have done Mr Bates, Mrs Stubbs, Mr Sabir.

   MR GREEN:  We have only got Mr Abdulla, Mrs Stockdale and

       Mrs Dar left.  Mr Abdulla at 592 {A/8/210},

       your Lordship will see what is said about Mr Abdulla in

       the first line.

   MR JUSTICE FRASER:  I have seen that.

   MR GREEN:  We respectfully say that is not a fair summary of

       his evidence, particularly as we explain at

       paragraph 278 of our written closing {A/6/129} in

       context particularly of both the later evidence on

       transaction corrections that emerged and a fair reading

       of page 17 of the interview transcript at {E4/79/17}

       where he is specifically contemplating a further

       transaction correction.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Then Mrs Stockdale at defendant's paragraph 598

       {A/8/213}.  There is reliance essentially on her

       evidence of what she was prepared to accept in

       cross-examination, essentially as a basis for the NTC

       contract being clear, and we respectfully invite the

       court to have regard to the evidence in relation to

       people's understanding of the contracts as a whole, and

       particularly also --

   MR JUSTICE FRASER:  I don't understand what you mean by

       that, I'm sorry.

   MR GREEN:  As to the clarity of the NTC terms to

       Mrs Stockdale --

   MR JUSTICE FRASER:  You mean her subjective understanding.

   MR GREEN:  Her subjective understanding because that may

       affect issues like onerous, unusual and so forth.  She

       was -- we have set out at paragraph 283 {A/6/133} the

       case on the extent to which she was commercially naive

       because she had "smile" and "listen" in her business

       plan, and the actual way her contract was put to her at

       283.3 in our closing submissions and as important

       context from which the court will doubtless form a view

       about the weight to attach to answers that were put in

       the way they were put.

   MR JUSTICE FRASER:  Yes.

   MR GREEN:  Then, my Lord, finally Mrs Dar.  What is said at

       599 there {A/8/213}, that she:

           "... tried to pretend documents were confusing -

       when they were clearly not - as Mrs Stockdale had

       demonstrated."

           We respectfully say is rather unfair.  We have set

       out the actual questions and her answers at 287.6 in our

       closing submissions {A/6/137}.  What we say there is:

           "Mrs Dar rejected the characterisation of the

       contracts as straightforward in a characteristically

       straightforward manner.

           "Question: But I suggest to you it was actually very

       straightforward?

           "Answer: What part of the Post Office is very

       straightforward?

           "Question: The signing of the agreement and its

       structure?

           "Answer: The structure is not straightforward

       whatsoever.  You get document after document after

       document referring to things you probably need to

       cross-reference.  I just wouldn't think it is user

       friendly whatsoever." {Day5/45:15-22}

           We do not accept that that evidence should be

       characterised as less than straightforward for reasons

       which your Lordship will appreciate.  She was

       extensively cross-examined on the interview which we

       address in our submissions at 287.2 to 287.4 {A/6/135}

       and your Lordship will note what we say at 287.4

       {A/6/136} because it recites the way my learned friend

       put his cross-examination as follows to Mrs Dar:

           "What I suggest, Mrs Dar, is that at the time when

       you wrote your witness statement, it wasn't known there

       was an existing tape-recording of this interview.  It

       got misfiled in disclosure and it came out later.  So

       you were able to say pretty much what you liked about

       what happened at the interview and then you have been

       caught out by the fact that a tape-recording and

       a transcript has later been provided."

           And the observation made by the claimants in

       relation to that is: to describe that position as

       ill-judged -- given the evidence that later followed

       from Mr Trotter and his fictional checklists -- would be

       something of an understatement.  Your Lordship will note

       Mr Trotter has vanished out of sight.  He is not

       mentioned anywhere in the written closing for the

       Post Office.

   MR JUSTICE FRASER:  You mean his evidence has vanished?

   MR GREEN:  Not mentioned.

   MR JUSTICE FRASER:  I hadn't noticed that he had vanished.

       You are saying he is not mentioned at all.

   MR GREEN:  No.

   MR JUSTICE FRASER:  All right.

   MR GREEN:  My Lord, we are now on to your Lordship's

       checklist.

   MR JUSTICE FRASER:  A couple of points, none of them

       particularly dramatic.  In your written closing ...

       (Pause)  Just give me a second.  It's your paragraph 544

       {A/6/275}.  Your page numbers are the same, aren't they?

       It's internal page 271.

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  Do you have it?  There is an extract of

       some evidence.

   MR GREEN:  Yes.

   MR JUSTICE FRASER:  Which then goes on over the page.  Do

       you see the final question, the penultimate line?  The

       penultimate line of the quotation {A/6/276}.  Is that

       a typo in the question?  Should it be the subpostmasters

       wouldn't expect it?  Or wouldn't be expecting it?

   MR GREEN:  Yes, I think --

   MR JUSTICE FRASER:  I don't want to put words into anyone's

       mouth, but it seemed to me that was probably a typo.

   MR GREEN:  It was I think a typo.

   MR JUSTICE FRASER:  I know that, I am not suggesting it is

       a problem, it's just --

   MR GREEN:  It's a typo.  I will check what the actual

       transcript says, but what I was putting --

   MR JUSTICE FRASER:  This is your cross-examination of

       Mr Beal.

   MR GREEN:  Yes, and that is what I was putting.

   MR JUSTICE FRASER:  I know the transcript will say that.

   MR GREEN:  Yes.  I was putting the opposite of that final

       line.  I hadn't noticed actually.

   MR JUSTICE FRASER:  It might or might not be important but

       it seemed I ought to mention it.

   MR GREEN:  I am grateful.

   MR JUSTICE FRASER:  Because the tenor of your

       cross-examination, which is over the page {A/6/276}, is

       that a particular point was not realistic about what

       people would expect.  Mr Beal agrees and says:

           "It is not realistic about what we do, no ... no, it

       is not realistic."

           You say:

           "Post Office wouldn't expect it."

           He says:

           "I agree."

           Then I think the point you put was that the

       subpostmasters wouldn't expect it.

   MR GREEN:  Would not expect it.

   MR JUSTICE FRASER:  That is the first one.

           The next one, in fact the only other one ... I know

       that both in opening and through your cross-examination

       of, in particular, Mrs Van Den Bogerd but also some of

       the other witnesses, you put different documents,

       internal Post Office documents, that demonstrated what

       could be said to be internal references to either

       knowledge or discussion within the Post Office about

       Horizon either causing problems, throwing up

       discrepancies, leading to shortfalls or other

       difficulties of that nature.  I don't think there is

       a single list anywhere, but I might be wrong --

   MR GREEN:  I don't think there is.

   MR JUSTICE FRASER:  -- just of the dates, the description of

       the document and a short summary of what it says.

       Am I right; there isn't a single list?

   MR GREEN:  Your Lordship is right.

   MR JUSTICE FRASER:  I know some of them go back to 2010

       because I have taken various notes.  I would like

       literally just a single list, please, just references,

       no submissions at all.

   MR GREEN:  Of course.

   MR JUSTICE FRASER:  So what it should do is have: date,

       trial bundle reference, description of document and then

       an extract of the quotation.  So no gloss, submission,

       anything.  Literally just a factual creation of a list.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  All right.  There are the letters to and

       fro which I mentioned this morning, which I am not

       expecting you to have now, about the Mrs Stockdale

       situation.

   MR GREEN:  I do have them, I think, my Lord.

   MR JUSTICE FRASER:  How many are there?

   MR GREEN:  There are nine letters in total.

   MR JUSTICE FRASER:  Put them in part two of the list that

       I have just explained.  So it's going to have two parts.

       And literally again, date, description.  I don't want

       any submissions at all.

           Then -- and this is also on Mrs Stockdale.  This

       isn't so much a question for you as an outstanding

       housekeeping matter which potentially I am playing catch

       up on.  I did make an order last week about the

       encrypted interview, and I think one of the dates hasn't

       yet come around, because I think the date for a witness

       statement was going to be tomorrow.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  I am assuming nothing else has happened

       so far as the claimants are concerned.

   MR GREEN:  Not as far as we know.

   MR JUSTICE FRASER:  All right.  That's fine.

   MR CAVENDER:  My Lord, before you proceed, the documents

       that you are asking Mr Green to provide, is that on the

       assumption they are going to be agreed?  Because,

       otherwise, he can put all sorts of documents in there

       and there are issues about them.

   MR JUSTICE FRASER:  It is anything that has actually been

       mentioned in the trial.  So when you say "agreed" what

       do you mean?

   MR CAVENDER:  You have said: I don't want to go to the

       document, but a brief summary of what it contains and

       that kind of thing.

   MR JUSTICE FRASER:  I then changed that.  I am sorry.  You

       are right.  I think you were talking to one of your

       juniors when I said that.  I don't want anything that is

       isn't in the document.  I just want a quotation.

       For example -- and this is simply off the top of my head

       because it is something that has stuck in my mind --

       there is the email in relation to Mrs Stubbs from the

       gentleman who said:

           "I was reluctant even to accept the offer of a cup

       of tea because I thought if she switched the kettle on

       ... [XYZ] This is Horizon ..."

           Which I think was underlined.

   MR CAVENDER:  My Lord, the only other problem even with just

       a list is it could be selective.

   MR JUSTICE FRASER:  Anything that has been mentioned in the

       trial that demonstrates what I have just shown --

   MR CAVENDER:  I see.  If it is in the trial, he has actually

       put it --

   MR JUSTICE FRASER:  No, it is not -- Mr Cavender, and this

       applies to both of you, I am not asking for anything

       that hasn't either been referred to by either of you or

       put to a witness or mentioned in a witness statement.

   MR CAVENDER:  Very well.  I am obliged.

   MR JUSTICE FRASER:  I imagine it is only going to have about

       I would have thought a couple of dozen examples, but

       there might be more.  But it is all of the ones that

       have been referred to in court.  It is just to have it

       in one single place.  Okay?

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  That then brings me on to the final

       point, and I might also have to ask Mr Cavender this

       following on from whatever it is you say, Mr Green,

       because it affects him as well.  I know that of the

       documents that were disclosed to the claimants by the

       Post Office there was some disagreement about certain

       ones of them being made part of the trial bundle.  Is

       that correct?

   MR GREEN:  It is correct.

   MR JUSTICE FRASER:  Notwithstanding that, they are in -- or

       some of them at least are in the trial bundle and they

       have been put and some of them have been read out.

   MR GREEN:  Indeed.

   MR JUSTICE FRASER:  If I look at a document in the trial

       bundle and click on it and it says "Opposed by D", what,

       if anything, should I either do or what attention should

       I pay to the fact that it says "Opposed by D"?

   MR GREEN:  We respectfully say none.

   MR JUSTICE FRASER:  None.  Fair enough.  Mr Cavender?

   MR CAVENDER:  My Lord, I think you just have to proceed

       carefully in light of the cross-over issues that we have

       raised, and ask yourself the question: is this a Horizon

       issue potentially?  Is it a breach issue?  And if it is,

       then you might want to be more careful with it.

       Obviously you can obviously refer to anything you like

       and have regard to it but, because of the oddity of

       the way this is set up with these three separate trials

       that are in silos --

   MR JUSTICE FRASER:  I don't think it is an oddity.

   MR CAVENDER:  Not an oddity, the feature.  The feature.

   MR JUSTICE FRASER:  It is quite common in big trials.

   MR CAVENDER:  My Lord, I know.

   MR JUSTICE FRASER:  As I am sure you do know.

   MR CAVENDER:  Indeed.  That is my only point.

   MR JUSTICE FRASER:  But for these purposes we will treat it

       as an oddity.  But you are not objecting to me looking

       at them.

   MR CAVENDER:  I am not.

   MR JUSTICE FRASER:  And, in a sense, that is a storm that

       has blown out one way or the other before the trial

       started.  Because once a document is actually put to

       a witness or read to me in court, and there was no

       privilege aspect of it in terms of it being objected on

       disclosure, it was more an objection that the content of

       it on one analysis was outside the scope of Common

       Issues, is that right?

   MR CAVENDER:  My Lord, it is this: when it comes to your

       findings, you have said in (inaudible) 2 you are not

       going to make findings on breach or on Horizon.  We say

       also you should not make any findings of fact that lead

       to that, or indeed make comments, particularly because

       you are going to be the trial judge in the other two

       trials.  Because normally judges say: these are my

       findings and by the way ... in relation to other issues

       ... Your Lordship, in my submission, isn't in that happy

       position, given you are the trial judge in relation to

       trials where you will be the person deciding those

       issues and so shouldn't really express any view at all

       or comment in relation to the content.  So that is

       the only point I am making.

   MR JUSTICE FRASER:  Is that right, though?  Because part of

       your case on the contract terms is the drawing of

       an inference, for example.

   MR CAVENDER:  In relation to ...?

   MR JUSTICE FRASER:  The whole of the way in which the

       provision for losses should work.

   MR CAVENDER:  My Lord, no, that is a misunderstanding of our

       case in terms of construction.  What we say in terms of

       fulfilment of burden may be done by way of inference.

   MR JUSTICE FRASER:  Hold on just one second.  It may be that

       that point is more suitably dealt with tomorrow or the

       day after.  Because actually my question was aimed at

       the provision of the trial bundle.  But in your written

       opening, paragraph 122(b) on page 36, which I explored

       with you on Day 1 at pages 102 and 103 of the

       unfinalised transcript {Day1/110:2} --

   MR CAVENDER:  We are at paragraph 122(b).  {A/2/36}

   MR JUSTICE FRASER:  That is part of a section that begins at

       118 and you say at (b):

           "Post Office may rely on an inference from the

       general reliability of Horizon ..."

   MR CAVENDER:  Indeed.  That is in relation to -- that is

       satisfaction of a burden of proof.

   MR JUSTICE FRASER:  I know:

           "If the opposite is true ..."

           You say at the end:

           "... it would be easier for the subpostmaster to

       undermine reliance on Horizon to prove a shortfall."

   MR CAVENDER:  Correct.

   MR JUSTICE FRASER:  I'm not going to ignore that whole part

       of this case.

   MR CAVENDER:  Which is the whole part, my Lord?

   MR JUSTICE FRASER:  In your written opening it would go from

       118 all the way through to, I imagine, 135.

   MR CAVENDER:  My Lord, I'm not asking you to.

   MR JUSTICE FRASER:  Okay, good.  So I haven't misunderstood.

   MR CAVENDER:  My Lord, perhaps if we deal with it in detail

       tomorrow, as you say.  But that is the difference

       between what is the contractual allocation of burden as

       a matter of contract and how that fits in then to the

       breach trial and the allocation and discharge of the

       burden at that subsequent trial.

   MR JUSTICE FRASER:  No, no.  Mr Cavender, this is quite

       important.  In terms of commercial common sense, which

       is a tenet of the process of construing terms, as you

       rightly recognise in paragraph 134 {A/2/41} of your

       written opening, you say it would make no commercial

       sense for the contract to allocate a burden of proof to

       the Post Office.  So that is a point which arises in

       this trial as a point of construction.

   MR CAVENDER:  Insofar as we are talking about the clause

       having within itself allocated the burden at all, as

       a matter of contract.  Normally a contract would say,

       a certain obligation, it is for X to prove that is

       the case.  That is obviously an express allocation of

       burden.  This clause doesn't do that.  So it clearly

       doesn't do it expressly.  The next question is: does it

       do it implicitly?  And then the question after that: if

       it doesn't, how will the court in terms of, once it

       establishes the meaning of the clause, apply that at the

       subsequent breach trial.  So there are really three

       stages.

   MR JUSTICE FRASER:  It may be that you have misunderstood

       what I meant.  I am happy I have not misunderstood what

       you mean.  How it is construed is going to be dealt with

       in this trial.

   MR CAVENDER:  Indeed.

   MR JUSTICE FRASER:  Which includes considerations of

       commercial common sense.

   MR CAVENDER:  Of course.

   MR JUSTICE FRASER:  So far as I understand the authorities.

   MR CAVENDER:  My Lord, of course.  I agree.

   MR JUSTICE FRASER:  So far as the trial bundle is concerned,

       if there is a document that says "Opposed by D", that is

       simply an historical reference to the squabble about

       the content of the trial bundle and you are inviting me

       to pay particular care to the contents of any such

       document, but I note what you say about inviting me not

       to comment or make any other findings which you say

       should be properly dealt with in rounds two or three.

   MR CAVENDER:  Correct.

   MR JUSTICE FRASER:  All right.  It is 3.10 pm.  I would

       ordinarily now have a ten-minute break for the shorthand

       writers but I think, in view of the general way the week

       has been structured, it probably makes sense to stop

       today now, and I will invite you, Mr Cavender, to start

       at 10.30 am tomorrow.  Unless anyone has any objections

       to that?  All right.  Thank you very much.

           I have to give a lecture out of London tomorrow.

       I don't have to rise early at all but I won't have

       provision for going late.

   MR CAVENDER:  What is "late", my Lord?

   MR JUSTICE FRASER:  I won't have provision for sitting much

       past 4.20 pm/4.25 pm, but it is still a full court day.

       But that is only for tomorrow.  We cut the week into two

       days each so I don't see it as an issue.

           So 10.30 am.  Thank you all very much.

   (3.10 pm)

        (The court adjourned until 10.30 am on Wednesday,

                         5 December 2018)
Tuesday 4 December 2018

Common Issues trial transcript: Day 13
