Tuesday 4 December 2018

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:

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 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
           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 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
           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
   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
   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 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
           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
   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
   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
   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
   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
   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
   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
   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
   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
           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
   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 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 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 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
   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
   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 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
   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
   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 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
   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 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
   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
   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
   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 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 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 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
   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
           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
   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
   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 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 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
   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
   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.
   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
           "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 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
           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
           "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
           "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
           "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 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
           "As indicated at paragraphs 184 and 185 below,
       Post Office may hold subpostmasters who signed branch
       trading statements to the accounts that they signed
   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.
           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
           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
   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
   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
   MR GREEN:  Before I do, can I show your Lordship what the
       Common Issues actually say.  It slightly gives the game
   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 ..."
   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,
   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
   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
   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 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
   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
           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
           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
   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
   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
           "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
           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
           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
           "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
           "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 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 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 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
   MR JUSTICE FRASER:  "I actually have a reason for this."
   MR GREEN:  Then your Lordship sees line 10 --
   MR JUSTICE FRASER:  Hold on.  (Pause)
           "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 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 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
   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 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
   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
           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 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
           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
           "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
   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 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
   MR GREEN:  It's on internal page 48 of the document,
   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
   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
   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
   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 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 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
   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
   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
   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
   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
   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 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
   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 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
   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
   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
   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 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
   MR JUSTICE FRASER:  Sorry, where are you looking?
   MR GREEN:  Sorry, 93(1)(b) at the foot of page {B3/2/42}.
   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 GREEN:  Which are at {B3/1/24}.  Your Lordship sees
           "... 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
           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 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
   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
   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 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 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
   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
           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."
           "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
           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 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
           "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
   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
   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.
           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
   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
   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
   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
   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 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
   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
   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
   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
   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
   MR JUSTICE FRASER:  Give me the whole six.
   MR GREEN:  So it's Mr Bates, Day 2, page 90, line 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
           Mr Sabir, Day 3, page 126, line 16 {Day3/126:16}.
           Mrs Dar, Day 5, page 46, lines 11 to 15
           Mr Abdulla, Day 4, page 84, line 7 {Day4/84:7}.
           And Mrs Stockdale, Day 4, page 180, line 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
   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
   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
   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
   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
           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
   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
   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
   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 GREEN:  Indeed, in 2015.  And then the grant --
   MR JUSTICE FRASER:  I still haven't seen any evidence about
   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
   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
   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
   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
   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 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
   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 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 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 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
           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
           "Answer: What part of the Post Office is very
           "Question: The signing of the agreement and its
           "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
   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
   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.
           "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
   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)