This is the unperfected transcript of the first day of the Horizon trial, held in court 26 of the High Court's Rolls Building. Enjoy.
Monday, 11 March 2019
(10.30 am)
MR JUSTICE FRASER: Mr Green.
Housekeeping
MR GREEN: May it please your Lordship. One of the matters
your Lordship was going to deal with first thing today
I think was the question of when the common issues
judgment might formally be handed down and whether the
claimants may have permission in the event that they
receive a draft to disclose the draft to the steering
committee of the claimants.
MR JUSTICE FRASER: Yes. I think Mr Warwick's email said
two members of the steering committee. I don't know how
many people are on the steering committee.
MR GREEN: Yes.
MR JUSTICE FRASER: This is the draft which is currently
embargoed.
MR GREEN: Indeed.
MR JUSTICE FRASER: Right and my position on this is as
follows. I have no difficulty with two members of the
steering committee seeing the draft, subject to
conditions. One is the names of those two people have
to be notified to my clerk in an email and that email
should come from one of the claimants' legal advisors.
It should identify who they are by name and the fact
that they have been specifically told the terms of the
embargo and that to breach the terms is a contempt and
what the possible consequences of the contempt are.
MR GREEN: My Lord, I'm grateful.
MR JUSTICE FRASER: If those three elements are satisfied
then they can be shown the draft --
MR GREEN: I'm most grateful.
MR JUSTICE FRASER: -- under terms of the embargo.
MR GREEN: I'm most grateful, my Lord.
MR JUSTICE FRASER: Now, handing it down, that ball is
rather in your court and when I saw "your" court I mean
the Post Office's court, although I know it is not
Mr De Garr Robinson's side of it.
MR GREEN: Side of it yes.
MR JUSTICE FRASER: I was expecting or had invited typos to
be provided by Wednesday.
MR GREEN: Indeed.
MR JUSTICE FRASER: Depending on the extent and scope of
those I intend to hand the judgment down on Friday, but
if there are an enormous quantity and it was a judgment
that was sent out more in draft than I would ordinarily
hope for, on Thursday morning I might say to you it's
not going to be Friday, it's going to be the beginning
of next week so I can use the weekend just to deal with
the typos.
MR GREEN: Most grateful, my Lord. Would it be possible for
us to deal with any consequential matters the following
Friday rather than this Friday?
MR JUSTICE FRASER: No, you can have longer than that.
MR GREEN: I'm most grateful.
MR JUSTICE FRASER: The important thing on consequential
matters is that when I hand it down I make the order in
the relevant terms for the parties to give them the
necessary extension of time so that time doesn't run.
I don't intend to put the parties in the position that
time is running for the purposes of any consequential
applications during this trial.
MR GREEN: My Lord, I'm most grateful.
MR JUSTICE FRASER: So you don't even necessarily need to
come when it is formally handed down, depending on when
that is.
MR GREEN: I'm most grateful.
MR JUSTICE FRASER: Is that clear? Yes, good.
MR GREEN: My Lord, in terms of use of the time for
claimants' oral opening, what I propose to do -- because
I know your Lordship has obviously had sight of the
expert reports and joint reports already.
MR JUSTICE FRASER: Yes.
MR GREEN: I propose to highlight a few key areas of
agreement at a fairly high level, highlight a few key
areas which we will say at this stage are likely to be
important battle grounds for the trial, highlight the
importance of the difference of approach of the two
experts and the approach we're going to respectfully
invite the court to adopt and then, which we hope will
be useful for the court, take your Lordship through one
worked example of a bug.
MR JUSTICE FRASER: One worked example of ..?
MR GREEN: Of a particular bug, so that your Lordship can
see practically how a KEL works and practically how it
relates to a PEAK -- or one or most PEAKs or one or more
KELs because your Lordship will have probably
appreciated that you can have multiple KELs referring to
one or more PEAKs and vice versa -- the practical
realities of the information flow between Post Office
and Fujitsu in their system and the extent of the impact
that one bug can have, the limitations on the sources of
information available to the experts.
MR JUSTICE FRASER: You seem to be counting on your figures
but I don't know what number you've got to.
MR GREEN: I'm sorry. I will give your Lordship just
a narrative overview to start with.
The limitations of the sources of information
available to the experts and what knowledge Post Office
had of that bug and when, to inform the court as to its
approach to these bugs and that will hopefully give
the court at least at the outset of the trial both
a practical understanding, in addition to what the court
has already gleaned from the experts' reports, of how it
actually worked, upon which we are going to place
I think greater emphasis possibly than the defendant,
and to provide a sort of microcosm illustration of what
we, the parties and the court, now have, what those
documents do and do not do, what the claimants have had
to do, what Post Office doesn't do and what Post Office
has known in relation to that bug all along.
So with that brief introduction --
MR JUSTICE FRASER: We also at some point, and I would like
to do it before lunch if possible because I don't want
to cut into Mr De Garr Robinson's time, need to address
in outline terms whether either or each of you want an
adjustment to part 2 of the timetable to deal with
experts' cross-examination, which was an email I sent
out about two weeks ago.
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: So we just mustn't forget that.
MR GREEN: At the moment I think our position is we are not
seeking one and we are content to deal with it in that
way.
MR JUSTICE FRASER: "We" being you?
MR GREEN: The claimants. But there may be a different
view.
MR JUSTICE FRASER: Well, I'm in a much more developed
position than I was at the pre-trial review and I'm
obviously raising the point for a reason but we can deal
with it in outline terms at about 5 to 1, and please
don't forget that the shorthand writers need a short
break between about quarter to 12 and 10 past.
MR DE GARR ROBINSON: My Lord, I wonder whether now would be
a good time to discuss that question. It has been
something that's been bearing on my mind.
MR JUSTICE FRASER: All right.
MR DE GARR ROBINSON: Your Lordship will be aware from the
PTR that my judgment is four days is needed with
Mr Coyne. That remains my judgment. Now that
your Lordship may have had an even greater opportunity
to read the expert reports and their length and assess
the complexity of their contents and their length,
your Lordship may have a different reaction to that
submission than the one that you had during the PTR.
MR JUSTICE FRASER: Well, my position -- I will tell you
what the situation is and then we can revisit at the end
of the day if necessary, although because today is silks
day there is a ceremony for the new silks at quarter to
5 which means we will have to stop bang on half past 4.
My position at the pre-trial review was fairly
clearly based on anticipation of future expert
agreements because I knew that they were still
continuing to meet. I knew what your position was about
four days and I was fairly robust about that.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: Robustness being the word of the moment.
Given what has happened since then, I am now more
open minded to you having longer than two and a half
days if you consider you need longer than two and a half
days. I know originally Mr Green said he wanted I think
three but he seems broadly content with two and a half.
There's also something of a difficulty brewing in the
wings in respect of other litigation on Friday 5 April
because as you know this court sits usually on Fridays
on other business, so part 2 of the trial, by which
I mean the expert evidence onwards, seems to me,
Mr De Garr Robinson, if you tell me you need four days,
I am going entirely to rejig the second half of this
trial so you can have your four days.
MR DE GARR ROBINSON: I'm much obliged to your Lordship.
MR JUSTICE FRASER: So if you just want to mull that over
and we obviously need to set the timetable in more
outline terms, though nothing is set in stone, either
today or tomorrow and that might mean we need to
readdress when the closing arguments are going to be.
MR DE GARR ROBINSON: Yes. My Lord, I was thinking more
time with the experts and then perhaps oral closing
arguments at the beginning of next term, but I have
heard what your Lordship said and I'm grateful for the
indication.
MR JUSTICE FRASER: And that's not impossible either, that
way forward. It would break those two weeks, which are
currently the first week after the break, expert
cross-examination, and the second week, closings; it
would break them into a week for the claimants' expert
to be cross-examined by you, however many days of the
next period Mr Green would want to cross-examine
Dr Worden and whether that's two and a half or three,
there's not really much difference, and then whatever we
do about closings. That's to give you my outline
thinking.
MR DE GARR ROBINSON: I'm grateful.
MR JUSTICE FRASER: All right, Mr Green.
Opening submissions by MR GREEN
MR GREEN: Most grateful, my Lord.
My Lord, there is, as your Lordship has seen, some
fairly high level agreement. Obviously the Horizon
architecture is broadly uncontroversial and Horizon
support, at least the outline of it, how it was provided
is uncontroversial.
MR JUSTICE FRASER: Are there four statements now?
MR GREEN: There are four joint statements. I think the
fourth doesn't take it that much further.
MR JUSTICE FRASER: But there are four?
MR GREEN: There are four.
And the experts agree that the PEAKs and KELs, the
known error logs KELs and the PEAKs, which are the
higher level record created in relation to a KEL, it
goes up the support line; the experts agree that the
PEAKs and KELs together form a useful source of
information about bugs in Horizon, but while they are
the best available resource to the experts, they provide
a limited and incomplete window on what happened and so
cannot paint a comprehensive picture and that's the
agreed view of the experts, just to give your Lordship
a brief outline of the landscape of the evidence they
predominantly relied upon.
It is also true that there are a number of other
documents they have had reference to, as your Lordship
would expect, I think various emails, Fujitsu
presentations and other things which we will come to,
how they provide greater insight.
The PEAKs are created by Fujitsu's third and fourth
line support teams. So your Lordship has in mind how it
works, the first line support seeks to identify whether
there is an existing known error log entry that might
relate to a support call. If not, the second line
support will create a new KEL, a new known error log
record, and then it is the third and fourth line of
support teams that create and investigate PEAKs. And if
your Lordship wants a reference just as a description of
PEAKs there's a helpful one in joint 2 at 0.5, the
reference of which is {D1/2/27} which is where the
experts agreed:
"PEAKs record a timeline of activities to fix a bug
or problem. They sometimes contain information not
found in KELs about specific impact on branches or root
causes - what needs to be fixed."
Then there is some agreement about bugs and errors,
robustness and potential for errors and measures and
controls. It is agreed that there were multiple bugs
with the potential to have a financial impact on branch
accounts and your Lordship will probably have seen from
joint 2, paragraph 1.15 {D1/2/29} the range of views is
between 12 and 29 bugs that the experts have identified
as distinct for which they have seen strong evidence of
the bug causing a lasting discrepancy in branch
accounts. So that's the range of opinion at the moment
and for your Lordship's reference the table where
Mr Coyne refers to those is {D2/4/16}, which is in
Mr Coyne's supplemental report, which if we can just
bring that up on Magnum, your Lordship will see there is
an "Evidence of branch impact" column and where it says
"Yes", that's where the relevant bugs that he has
counted up to 29 are said to have strong evidence of
potential impact on branch accounts.
The areas of robustness where there is at least
outline agreement, the experts agree that overall the
system is relatively robust. They agree that computer
systems are considered more robust if access to the
back-end database is restricted tightly and they agree
that in 2012 Post Office's auditors observed that there
were inappropriate system privileges in this regard and
that's found at paragraphs 3.2 to 3.3 of joint 3, which
is at {D1/4/3}. And the source -- so that's
paragraphs 3.2 to 3.3, your Lordship will see at the top
there. And the source for that is the Ernst & Young
management letter which is at {F/869/32}, which over the
page at 33 {F/869/33} identifies:
"There are inappropriate system privileges assigned
to the APPSUP role and SYSTEM_MANAGER role at the Oracle
database level on the branch database server ...
inappropriate privileged access ..."
And so forth. On page 34 over the page {F/869/34}
they say:
"Unrestricted access to privileged IT functions
increases the risk of unauthorised/inappropriate access
which may lead to the processing of unauthorised or
erroneous transactions."
And then at the bottom they say:
"We noted that there is currently no process to
review POLSAP user accounts or HNGX back-end user
accounts on a periodic basis to determine that user
access is appropriately granted given the job
responsibilities. As a result, our review revealed the
following ..."
And over the page they set out examples of what they
have found and the bottom entry:
"Whilst we noted that there was a monitoring control
in place for privileged access to POLSAP whereby
accounts associated to the SAP_ALL profile are reviewed
and monitoring of failed and successful login attempts
for SAP*, DDIC and BASISADMIN accounts is performed,
this control does not include accounts associated to the
SAP_NEW privileged profile."
And so forth. So that was a document which the
experts identified in relation to that point.
Then at the level of undetected errors, in joint 3,
paragraph 3.6, which is {D1/4/3}, the experts agree
that:
"PEAKs show that some defects have lain undetected
in Horizon for extended periods without being diagnosed
and fixed."
And your Lordship will anticipate we will look at
that carefully through the prism of Dr Worden's
countermeasures which he relies on for robustness and
detection of errors and correcting them in a timely way.
Then as to the effectiveness of the countermeasures
themselves, the experts agree that the effectiveness of
various countermeasures has changed throughout the life
of Horizon. The existence of the countermeasures has
changed as well and your Lordship finds that at joint 3,
paragraph 3.11 and 3.20; that's {D1/4/4}. Your Lordship
will see there 3.11:
"The effectiveness of various countermeasures
changed throughout the life of Horizon."
And if we go over the page {D1/4/5}, at 3.20:
"As Horizon has changed throughout its lifetime, the
existence and effectiveness of any countermeasures has
too. To have considered the time dependence of all
robustness countermeasures over 20 years would have made
the expert reports impossibility lengthy. There was not
the time to do so."
There is a final point on this page, while I'm
there, which is also we say highly pertinent to one of
the difficulties which is at the core of this
litigation, which is that the experts are agreed at 3.22
that:
"Many software bugs can have the same effects as
a user error (as illustrated, for instance, by the
Dalmellington bug, which produced a remming error)."
Your Lordship will anticipate how that will feed
into an analysis of attribution of fault when
a subpostmaster raises something and the experts now
agree that many software errors will look like user
errors.
Then moving on, as to reconciliation and transaction
corrections, about which the court has heard quite a lot
of evidence already in the common issues trial, the
experts agree on the mechanics at least of
reconciliation and TCs and just briefly as to that, it
is clear that the process of data comparison between
third party client data and Post Office held data, much
of that appears to be automated to identify where there
are discrepancies and some of those comparisons are
carried out within Horizon itself, as defined, while
others may not be, so there's a difference I think in
terms of system about exactly where the automated
comparison of external third party client data and
Post Office held data is carried out and we can see that
at {D2/4/22} which is Mr Coyne's second report at 3.37
to 3.38 which is essentially agreeing with Dr Worden's
comments about reconciliation.
Then in relation to the manual allocation of
responsibility and TCs, essentially the experts agree
that there is a human or manual process which is
inevitably subject to errors and in a sense to some
extent that is as far as Dr Worden goes, subject to
a point which I will return to as to the role that
transaction corrections play in this trial.
In relation to other quick topics where there is
broad agreement, issues 2 and 14, which is Horizon
alerting and reporting facilities, there are two big
agreements about that. One is that Horizon doesn't
alert SPMs to bugs and errors itself and that's joint 2,
paragraph 2.1 at {D1/2/38}. And then in relation to
functionality for SPMs obviously it's agreed that
Horizon's functionality allowed subpostmasters to check
cash and stock by counting the same and inputting those
figures. The experts generally agree on the steps and
processes in dealing with discrepancies and they agree
that it was not possible to record a dispute on Horizon
itself and that's joint 2, paragraphs 14.1 to 14.3 at
{D1/2/40}.
And the two last areas of high level agreement are
Horizon shortfalls data and reporting for
subpostmasters, which is 8 and 9. There is fairly high
level agreement about available data and reporting.
They agree factually about what transaction data and
reporting functions were available to subpostmasters and
Post Office respectively and that's joint 3 at 8.2
{D1/4/10}. And they agree, importantly -- although
your Lordship has already heard some evidence about this
in the common issues trial -- that Post Office had
access to several sources of information to which
subpostmasters were not privy, which is joint 3 at 8.1,
which is {D1/4/10}.
MR JUSTICE FRASER: Right. I'm a bit puzzled at some of
your references although you were going quite quickly so
it might be that I missed some of them. You said
joint 2, paragraph 14.1 to 14.3. I'm not sure if you
actually turned that up, did you? Was that turned up on
the common screen?
MR GREEN: {D1/2/40} is 14.1 to 14.3, my Lord, at the bottom
of page 40.
MR JUSTICE FRASER: Yes.
MR GREEN: So that's where the expert agreement is and the
reference is -- they haven't set out.
MR JUSTICE FRASER: No, I was looking for a different --
I was looking for subparagraphs of the earlier number 14
which was euro discrepancies which was on page 12, which
is also a paragraph 14 but it doesn't have
subparagraphs.
MR GREEN: Indeed.
MR JUSTICE FRASER: Yes, so ...
MR GREEN: I'm sorry if I'm going too fast but this is
just --
MR JUSTICE FRASER: Well, I don't know -- when you refer me
to these I don't know whether you are expecting me
hurriedly to look at them on here before you go on to
the next one or not.
MR GREEN: I will perhaps indicate if I invite your Lordship
to look carefully at it.
In relation to remote access and editing of
transactions, your Lordship will appreciate this is
going to be something of a hot potato during the trial.
There is a measure of agreement that certain categories
of access or tool have been available at various times
and at the moment I don't want to go into that in too
much detail save to identify what the types are, if
I may.
So there is Post Office remote access which was at
a minimum read only access to all branch transaction
data, which is referred to at joint 3, paragraph 7.2
which is {D1/4/10}. I'm not asking your Lordship to
look at it particularly.
There is the Fujitsu ability to insert transactions,
one such tool being the balancing transaction tool used
by Fujitsu's SSC, system support centre, third line
support, which has been used on at least one admitted
occasion {D1/5/5}, which is joint 4 at 10.3.
There is privileged users with the capability to
edit or delete transaction data and there are some logs
relating to this access but what's recorded in those
logs has changed significantly over time. That's
joint 4 at 11.3 {D1/5/10}.
There is accounts altered without consent which is
changes to an SPM's branch transaction data made without
a subpostmaster's consent which your Lordship will find
for example at Dr Worden's first report, paragraph 1136
which is {D3/1/248}.
And there is also reference there to the rebuilding
of branch transaction data --
MR DE GARR ROBINSON: I'm sorry, I don't understand
my learned friend's reference to paragraph 1136. It may
not be helpful but I wonder if he could explain what he
means about Dr Worden agreeing.
MR GREEN: So if your Lordship sees, there is a table at
1136 where Dr Worden sets out what he says can be done
and it has got "Data amendment" as the first column and
he says:
"Whether Post Office has had the ability to:
"Inject/inject: yes, global users have had that
ability.
"Edit/delete: no."
And then "without the knowledge of subpostmaster:
no"; "without the consent of subpostmaster: yes".
So I'm just trying to summarise the effect of what's
in that column.
MR JUSTICE FRASER: That's how I read it.
MR GREEN: I hope that's helpful to my learned friend.
MR DE GARR ROBINSON: I'm grateful.
MR GREEN: Then the final one is the transaction repair tool
which is referred to at {D1/5/3-4}. It is at the bottom
of that page:
"The earlier transaction repair tool affects only
[this is Dr Worden] back-end copies ..."
And then he lists some of the others.
MR JUSTICE FRASER: Sorry, where were you just looking at?
MR GREEN: Sorry, the bottom bullet point on that internal
page 3, which is actually --
MR JUSTICE FRASER: The one that begins "The earlier
transaction repair tool ..."
MR GREEN: Exactly:
"... affects only back-end copies of transaction
data [this is Dr Worden's view] and so does not enable
remote access."
And then he refers to other things. On that,
my Lord, I just invite your Lordship to note on page 7
{D1/5/7}, at 10.11, the experts agree:
"We have not been provided with logs or audits from
the transaction repair tool (TRT)."
So just trying to pick out the broad landscape,
where the big disputes will be, one of the big areas of
difference between the parties is as to robustness and
has a couple of facets to it: one is its utility in
terms of determining the individual other issues in the
trial and we have referred to that on page 9 of our
written opening {A/1/9} including at, for example,
paragraph 17.1.
The issue of robustness has been a fairly focal
point of the defendant's case throughout. They first
raised the contention that the Horizon computer system
is robust in their response to the Panorama documentary,
which is at {F/1422/1}. Your Lordship will probably
remember this document from it before, but the
Post Office was responding to the Panorama programme on
17 August 2015 and it says that the allegations are
based on partial, selective and misleading information:
"The Post Office does not prosecute people for
making innocent mistakes and never has.
"There is no evidence that faults with the computer
system caused money to go missing at these Post Office
branches.
"There is evidence that user actions, including
dishonest conduct, were responsible for missing money."
And so forth and then it refers to the allegations
and then the last paragraph before "Background facts" is
where they say:
"The Horizon computer system is robust and effective
in dealing with the six million transactions put through
the system every day by our postmasters and
employees ..."
And so forth:
"It is independently audited and meets or exceeds
industry accreditations."
Then the letter of response makes four references to
"robust". I won't take your Lordship to them. The
generic defence then reflects that language at
paragraph 16, paragraph 50 and paragraph 153, which are
respectively -- we don't need to turn them up, but are
respectively for reference at {C3/3/5}, {C3/3/21} and
{C3/3/61}.
And then the third CMC, Post Office themselves
particularly proposed issue number one, "Is Horizon
robust and extremely unlikely to be the cause of
shortfalls" and for reference -- we don't need to turn
it up -- that's the skeleton argument at {C8.4/2/25}
and then that becomes the focal point of Dr Worden's
report and we respectfully say feeds into his approach
to the evidence as a whole. So what he does, in
contra-distinction to Mr Coyne, is Dr Worden looks at
the idea of robustness in a particular way, which I will
break down in a moment, and then through the prism of
robustness then looks at the other issues and we
respectfully will invite the court to adopt an approach
more consistent with Mr Coyne's approach which is to
look at what actually happened with particular examples
and trace them through to a reasoned and careful
conclusion and then from the ground up, as it were, draw
inferences upwards rather than from an overarching
hypothesis downwards.
Your Lordship has probably seen that in addition to
that we have questioned the extent to which something
being said to be robust provides any solace to an
individual postmaster and that's at page 10 in -- it is
{A/1/10}
MR JUSTICE FRASER: Page 10 of?
MR GREEN: In our written submissions. And the short point
there, my Lord, is what's different about this is this
is not a provider of an IT system and the customer and
the customer being able to aggregate and deal with
things in the round with the provider. We're looking
one hop over and it is no solace to an individual SPM
who faces an unexplained shortfall which might be a lot
of money for them, even though a small amount of money
relatively for Post Office, to be told "But don't worry,
it's a rare occurrence", and so we respectfully say that
the entire universe of transactions is not the right
comparator for answering at least the other questions
and possibly the question of robustness in this trial.
We have made clear from the latest our generic reply
that we respectfully say that a low chance multiplied by
a high number of transactions is totally consistent with
the levels of claims being advanced by the claimants in
this case. My Lord, if I can just very briefly take
your Lordship to that, {C3/4/21}. It's at paragraphs 36
and 37 of the reply.
MR JUSTICE FRASER: Which paragraphs?
MR GREEN: It is paragraphs 36 to 37:
"Notwithstanding the various checks and
controls ..."
MR JUSTICE FRASER: It is really 35 to 37, isn't it?
MR GREEN: It really is, my Lord, your Lordship is right.
Then in 37, second line:
"In fact, the relatively small chance of errors
admitted by the defendant, would be likely to produce
the very picture reflected in the claimants' case. The
existence of money in the defendant's
suspense account(s) ... shows that errors generate
financial consequences by which the defendant receives
money to which it does not believe it is entitled, and
credits those sums to its profits."
That's a reflection of the suspense accounts being
credited profits after three years which we will turn to
when we get to Dr Worden's evidence.
"This too is consistent with the claimants'
case ..."
And if we go over the page {C3/4/22}, it identifies
the publicly maintained position and if we can go
forward to page 29 of that document which is {C3/4/29},
we look at paragraph 52:
"... the claimants repeat its primary case pleaded
in GPOC and aver that the terms identified are onerous,
oppressive ..."
Et cetera and that relates back -- that's the
position on the common issues reflecting the 52.5, the
identification of some errors and so forth. So that's
how that fed back into the trial your Lordship has
already heard.
In relation to robustness there's the sort of second
big area, but it's absolutely dovetailed with
Dr Worden's definition of robustness, which is his
definition of countermeasures which your Lordship will
have seen. He has identified these countermeasures and
he has drawn inference about their effectiveness and as
a result of those inferences concluded that the Horizon
system is robust and the most extraordinary of these is
the treatment of transaction corrections as
a countermeasure, because Post Office's position, we
respectfully say, is illogical and effectively a one-way
ratchet in Post Office's favour. So the approach is to
say that the process of making transaction corrections
is relevant as a countermeasure but not within this
trial, that's effectively the position adopted, and it
is we respectfully say an unusual position.
If we look at {A/2/44}, this is Post Office's
written opening for the Horizon issues trial, and we can
see at paragraph 114 the opening line of that:
"Post Office's reconciliation processes are outside
the scope of the Horizon issues."
So that's the prism through which the Post Office
invites your Lordship to be constrained for the purposes
of this trial.
Now, we compare that to what Dr Worden refers to at
{D3/1/71} and we see at paragraph 257 that Dr Worden
says:
"In my opinion, the countermeasure of UEC was so
essential in Horizon, and it was effectively
implemented. Because of this, many software errors
resembling user errors were also corrected."
Now, there what he is talking about is user error
correction, which is not the correction of user errors,
it's subpostmasters spotting software errors and drawing
them to the attention of Post Office and that feeding
through to Fujitsu. And we will look carefully at what
the information flow in real life looks like, but UEC is
not just an important countermeasure, in it Dr Worden's
opinion UEC, which is SPMs spotting system errors and
pointing them out successfully, UEC was "so essential in
Horizon".
If we then go to page 78 in that document {D3/1/78},
I would invite your Lordship to look carefully at
paragraph 294, flatly contrary to Post Office's position
in its written opening:
"The processes of reconciliation, TAs and TCs are
a very important part of the robustness countermeasures
built into Horizon - particularly for UEC."
So, my Lord, that ties back to that paragraph we
have just looked at.
Then just as an extra point, when Dr Worden is
presented with KELs in which it appears there might have
been a financial impact on branch accounts, he
frequently infers that TCs would have been issued to
correct the position and therefore it's robust. We will
explore some examples of that with Dr Worden in due
course. And therefore it would be certainly helpful if
my learned friend could clarify what Post Office's
position is about the relevance of TCs. If they do not
form part of the Horizon system, robustness of which
they have insisted is in issue in issue 1, then to the
extent that that robustness is dependent on transaction
corrections, the system is not robust. If it is in then
it is dependent on that process of transaction
corrections and your Lordship will obviously appreciate
from the previous trial what that involved in practical
terms.
So ultimately, the approach of Dr Worden more
globally we respectfully say has an element of
circularity about it because what we find is that where
bugs are detected -- so where we have been able to find
evidence of bugs -- Dr Worden prays that in aid to show
that "Well, they can be detected, so the system is
working, so it is robust", where bugs have not been
detected by the system that's prayed in aid as the
absence of bugs and where bugs have been found that have
gone undetected for a long time, but are finally found
several years later, that is still said to be evidence
that the system and controls are all robust. So in fact
the position is that it is not possible to identify any
evidence which could ever lead to the conclusion the
system is not that robust on that basis and we
respectfully invite the court to scrutinise that
approach with some care.
The big difference which I have already indicated
between the approach of Mr Coyne and the approach of
Dr Worden is Mr Coyne has started with the primary
source material and the PEAKs and KELs -- and we will
illustrate this in a moment in relation to
Dalmellington -- and has tried to build up the picture
from those, whereas Dr Worden has looked at everything
through the prism of the robustness countermeasures that
I have just been describing.
The third big area of dispute is remote access.
Your Lordship will appreciate that the position on
remote access has developed somewhat to say the least.
It is worth just briefly recapping how that position has
developed. Your Lordship will remember that Post Office
originally made its public statement in response to the
Panorama programme which denied any ability remotely to
alter branch data. That's at {F/1422/2} and you see
there halfway down the page:
"There is also no evidence of transactions recorded
by branches being altered through 'remote access' to the
system. Transactions as they are recorded by branches
cannot be edited and the Panorama programme did not show
anything that contradicts this."
Your Lordship will remember Mr Roll appeared on the
Panorama programme.
We have set this section out at page 22 of our
written opening {A/1/22} and we have traced through the
development of the position. It is clear that what
Post Office told the public in response to the Panorama
programme was not true.
At paragraph 65:
Following the claimants' letter of claim ...
Post Office admitted (in their 28 July 2016 letter of
response) that in fact Post Office and/or Fujitsu did
have some limited capacity remotely to access and edit
transactions ..."
Then at the GLO hearing my learned friend said to
the master -- wanted to deal with the remote access
point upfront and explained that the people who gave
that response thought it was correct. He said:
"... Horizon system is a very complicated system.
It involves lots of departments in ... both in Fujitsu
and in the Post Office. And the people who are
responsible for the correspondence didn't know that in
fact there were these two other routes. Very few people
at Post Office knew that there were these two other
routes. They were ... they were routes that are
under ... essentially under the control of Fujitsu who
is the expert independent contractor ..."
And then at the bottom:
"... the point having been discovered, the
Post Office wasted no time in ... in bringing the
truth ... the accurate ... and accurate set of facts to
the knowledge of the claimants."
And at the end of that section:
"... the fact that there is a possibility to alter
remotely itself is ... not in issue, it now having been
discovered and the fact that there are these clever
routes by which they can be done."
MR JUSTICE FRASER: I think you have gone over the page
to 23.
MR GREEN: I have indeed, my Lord, yes.
So that was what the court was told at the GLO
hearing, that it shouldn't be in issue because it had
now been admitted, and then the generic defence, we
identified what was admitted at that point paragraph 57
of the generic defence which is {C3/3/25}. In fact can
we just go back one page to 24 {C3/3/24}. There's an
admission at the bottom there:
"... bugs or errors ... have resulted in
discrepancies and shortfalls or net gains ..."
Go over the page and then that deals with those bugs
and errors. You come down to the "Remote editing of
branch transaction data" heading at 57 and then
subparagraph 1 says:
"Neither Post Office nor Fujitsu has the ability to
log on remotely to a Horizon terminal in a branch so as
to conduct transactions."
MR JUSTICE FRASER: What's the name of the Post Office or
the person who signed the statement of truth on the
generic defence? There is just a signature on it but
I can't see what the name is. {C3/3/75}.
MR DE GARR ROBINSON: My Lord, it is Jane MacLeod.
MR JUSTICE FRASER: Jane MacLeod, right. Thank you.
MR GREEN: Your Lordship will see that the case is then set
out in the subsequent subparagraphs:
"A Post Office employee with 'global user'
authorisation can, when physically present at a branch,
use a terminal ..."
And then:
"Any transactions effected by a global user are
recorded against a global user ID and are readily
identifiable ..."
Then 3 {C3/3/26}:
"Fujitsu (and not Post Office) has the ability to
inject transactions into branch accounts (since the
introduction of Horizon Online in 2010, transactions of
this sort have been called 'balancing transactions')."
Then halfway down 3:
"They may be conducted only by a small number of
specialists at Fujitsu and only in accordance with
specific authorisation requirements. They are rarely
used. To the best of Post Office's information and
belief, only one balancing transaction has ever been
made so as to affect a branch's transaction data, and
this was not in a branch operated by a claimant.
A balancing transaction is readily identifiable as
such."
And so that's the account that we get which appears
on its face to conclude the allegation which had been
originally made by Mr Roll in Panorama, subject to --
MR DE GARR ROBINSON: My Lord, just to be clear -- I'm sorry
to interrupt, but just to be clear, your Lordship may
recall an argument in the pleadings, this is talking
about Horizon Online, paragraph 57 is principally about
Horizon Online not about Legacy Horizon and it is
important not to swerve between the two different forms
of Horizon in relation to which different forms of
remote access were possible.
MR GREEN: My Lord, I agree it is important not to swerve
between them.
The development of the case in terms of evidence
essentially followed the service of Mr Roll's witness
statement, Mr Roll's first witness statement {E1/7/3}.
Now, in fact that statement was dated 11 July 2016 --
your Lordship will understand why a witness statement
was taken at that stage before a pleading of this
type -- and it was served on 28 September 2018 and at
paragraph 18 of that witness statement, for example,
Mr Roll says:
"The ability to remotely access the Horizon system
at branch level was extensive, in that we were able to
change not only data and transaction information, but we
also had the ability to insert transactions and transfer
money remotely without the subpostmaster knowing.
Obviously this was not done by me, however I can recall
thinking that a third party may have been able to do
that if they could have remotely accessed the system in
the way that we could (which may or may not have been
possible)."
So he is being qualified there about him not having
done it himself.
We then on the same day are served the witness
statements of Mr Godeseth and Mr Parker, Mr Godeseth
first witness statement on 28 September 2018. He says
that any remotely injected transaction would be easily
identifiable as such because it would have a counter
number greater than 32 and the reference to that is
{E2/1/17}, 58.10. And it is right to distinguish
between Legacy Horizon and Horizon Online:
"In Legacy Horizon any transactions injected by SSC
would have used the computer server address as the
counter position which would be a number greater than
32, so it would be clear that a transaction had been
injected in this way."
So that's served on the same day as Mr Roll's first
statement.
Then we get the 16 November 2018 statement of
Mr Parker, Parker 1, {E2/11/5}, at paragraph 22. He
says -- notwithstanding that he is responding to
Mr Roll, he says:
"It is correct that the 'remote access' described
above could have been carried out without the permission
of a subpostmaster. However, any additional
transactions inserted remotely would be identifiable as
such from the transaction logs that are available to
subpostmasters from Horizon."
So the effect of those two witness statements, one
at the same time as Mr Roll and one responding to
Mr Roll, is to preclude a transaction appearing as if it
has in fact been done by a subpostmaster when actually
it hasn't and to do so clearly.
Then Dr Worden says that Post Office's evidence
accords with his experience with support staff more
generally and we see at {D3/1/244}, paragraph 1114, he
effectively takes a view on the conflict of evidence
between Mr Roll and Mr Godeseth and sides with
Mr Godeseth saying that it accords with his experiences:
"... that support staff should have a facility like
this, so that branch accounts could be corrected in
exceptional circumstances - without resorting to DBAs."
And if we go forward to page {D3/1/245},
paragraph 1119, he said:
"Mr Roll worked in the SSC and I established
above ... certain SSC users had the ability to transact
injections ..."
I think it might be the other way round, inject
transactions:
"... although these would have become visible to
subpostmasters. So in my opinion Mr Roll could not have
made these changes to branch accounts 'without the
subpostmaster knowing'."
So that's Dr Worden's conclusion on that, that's
7 December and then if we -- your Lordship will remember
that Mr Roll's second statement explained how those were
to be made and in response to that Mr Parker serves
a witness statement confirming that Mr Roll is right and
we see that at {E2/12/9} which is paragraph 27, where he
says:
"In paragraph 20 of Roll 2 [which we will look at in
a second] Mr Roll describes a process by which
transactions could be inserted via individual branch
counters by using the correspondence server to
piggy-back through the gateway. He has not previously
made this point clear. Now that he has, following
a discussion with colleagues who performed such actions
I can confirm that this was possible. I did not mention
this in my first witness statement because, when faced
with a less clear account in Mr Roll's first statement,
my recollection was that if it was necessary for the SSC
to inject a transaction data into a branch's accounts,
it would have been injected into the correspondence
server (injecting via the server was the default option
which was followed in the vast majority of cases)."
MR JUSTICE FRASER: So apparently it is all Mr Roll's fault.
MR GREEN: Apparently.
MR JUSTICE FRASER: Well, I dare say that will be pursued in
due course.
MR GREEN: Indeed. And the final reference, just so
your Lordship has a reasonably complete picture about
this, is {D3/6/21} which is Dr Worden's second report,
which postdates Mr Parker's second statement, at
paragraphs 83 to 85. If we go to {D3/6/21} and if we
look at 83 to 85:
"It seems to me that I require further factual
information before I can comment on this evidence.
Which 'specific person'? Under what circumstances? How
frequently? Until I have that information, it remains
possible in my view that any transaction which 'would
appear to the subpostmaster as though it had been
carried out through the counter in branch' might only be
a transaction that he had given his consent for, as the
'specific person' - and which had in effect been made on
his behalf.
"Therefore, Mr Roll's new evidence does not cause me
to alter the opinion expressed at paragraph 1119 of my
first report, when commenting on Mr Roll's first witness
statement, that he could not alter branch accounts
without the subpostmaster knowing."
85:
"In paragraphs 27-34, Mr Parker provides detailed
and specific commentary on Mr Roll's paragraph 20, using
his knowledge and the appropriate contemporary
documents, where they have been found. Here he
acknowledges that Fujitsu could insert transactions into
branches by a piggy-back process. I am not yet able to
comment on Mr Parker's evidence or the documents he
cites."
So that's the manner in which Dr Worden engaged with
the picture that emerged in that way through those
witness statements.
So, my Lord, that's the background to those big
issues and the sort of key features of them. I don't
know whether it is worth taking a very slightly earlier
break.
MR JUSTICE FRASER: I would maybe go on a bit.
MR GREEN: Shall I push on a bit?
MR JUSTICE FRASER: Yes.
MR GREEN: Because I'm about to begin just tracing through
the Dalmellington bug to see how that arises.
The Dalmellington bug is a shorthand name for
a particular bug and it takes its name from an iteration
of the bug which occurred in October 2015 and it is in
the Horizon Online system, particularly, but probably
not exclusively, affecting transfers of cash between
core branches and outreach branches, which are small
part-time branches that use mobile equipment. Cash is
sent from Post Office to a core branch and then it is
transferred from the core branch to an outreach branch.
When the barcode for the cash was scanned at the
outreach branch, the number of remittances would
multiply so that Horizon showed far more cash on the
system than was physically present. And just so
your Lordship knows, or has an idea of how it seemed to
the postmistress Ann Ireland who was affected in
Dalmellington, what in fact appears to have happened is
that at the remming in stage the post mistress was
presented with the "Enter" button, she presses it, that
should take her on to a new screen, but it stays there
and it is pressed again and again, and it appears that
there is a reasonable inference that the multiple of
cash reflects the number of times -- that looks to be
how it works. So she ends up with trying to rem in
an £8,000 cash remittance into the outreach branch and
actually the Horizon system recording her account as
having remmed in 32,000. So four enters effectively, so
she is over by £24,000.
My Lord, we say that this is quite an interesting
bug to look at because of the precise way in which it
arose because unusually, in a lot of other cases the
postmistress or postmaster is trying to work out what's
happened, without knowing, but in this case they are on
both ends of the transaction because they see a receipt
that they have printed out going out and they are at the
outreach branch and they see what they get at the
outreach branch and they can literally hold them up and
go "That cannot possibly be right". So this is a good
example of a very particular bug which was at literally
one end of the spectrum of visibility to subpostmasters,
in contrast to a number of others, and we will see that
in the documents that we go through.
My Lord, can I begin by taking your Lordship to
{F/1389} which is the PEAK. I say "the PEAK" and I will
explain in a little more detail in a minute. So this is
PEAK PC0246949 which for convenience I will refer to as
the 949 PEAK. And just to show your Lordship how the
PEAK document works -- it may be absolutely apparent
already -- "Call type", "Live incidents/defects" and
then there's a "Priority", priority C, "Non-critical".
And then there's a summary "Horizon -- transaction
discrepancies", as we come down, and then "All
references" your Lordship will see as a heading, "Type"
and "Value" and there under SSCKEL, that is system
support centre known error log, your Lordship can see
the acha621P KEL. Just as a practical matter, in terms
of knowing what a KEL is about, the way the KEL system
was set up, the KELs are named after the person who does
them, not the issue. So you can't tell anything about
the KEL from the name.
Then your Lordship then sees "Clone call", PC0246997
which for convenience I will refer to as the 997 PEAK.
So that's an associated PEAK.
Then just following this document through, the
progress narrative has a very brief summary of the
fuller data above, so you can see "Call type: L", means
"Live", "Call priority: C", cross-references to
non-critical and so forth. And we then come down. The
date of the record in the sort of yellowy-beige section
is 13 October at 2.46 in the afternoon, 14.46.
MR JUSTICE FRASER: Where are you looking?
MR GREEN: Just halfway down the page, my Lord, when it goes
from a duck egg blue colour to a yellowy colour.
MR JUSTICE FRASER: I see, but date time is the day before
at 5.10.
MR GREEN: Exactly.
So the record there in yellow is 13 October and the
transfer note begins:
"Please can PEAK investigate this discrepancy issue.
NBSC has confirmed that following discussions and checks
with the user that this is not a user error issue ..."
So confirmed not a user error issue, which in this
particular case was very easy for reasons I will show.
"... but an issue within the system requiring
Fujitsu investigation."
And then there's the message:
"Hi Eden, need to raise an incident for below issue
and ... provide Fujitsu re ... it's been confirmed with
SM."
Then you get the same text effectively again about
confirming that it is not a user error. And if
your Lordship comes down to just under
"Problem/request":
"User has discrepancies when transferring cash from
one branch to another (specifically between their main
branch to their outreach branch); OUTREACH BRANCH ISSUE.
"User said instead of the system logging it as
£8,000 transaction, it recognises it as £32,000
transaction.
"User already contacted NBSC and was rightaway
directed to us ..."
And the amounts are logged at the bottom: star
£8,000 over £32,000. I think the amount should be
actually over 24,000 but I think they are recording what
it actually did is 32,000.
MR JUSTICE FRASER: Well, it says it should have been £8,000
but it has been recorded as 32,000.
MR GREEN: Exactly.
And the subsequent pages of the PEAK record the
dealings with the PEAK in a bit more detail. I will
come back to some more specific aspects of that. If we
can just go back to the first page for a second
{F/1389/1} and we look at "Clone call" and the 997 PEAK,
if we go to {F/1389.1} this is the 997 PEAK, which
appears to be a PEAK cloned from the other one. So
"Release PEAK", there's a reference to another PEAK
there and the clone master is the 949 PEAK that we have
just looked at. So this is a clone of the master PEAK
and it refers to another release PEAK and it also refers
to the KEL, the acha621P KEL which is the same KEL
referred to in the previous one. And your Lordship will
see under "Progress narrative", this 997 PEAK is opened
on 14 October by someone called Anne Chambers who we see
quite a bit and then it appears to paste in what's
happened on the 13th below it, so it's not actually in
chronological order going downwards.
And we get a bit more information there in the
middle set out quite helpfully:
"Branch has a discrepancy of £24,000. 4 other
branches have had a similar problem in the last
2 months."
And your Lordship will see in a minute that she is
unable to go back more than two months at that stage to
see what else has happened.
"3 of these resolved by remming out the excess.
Since these were all branch to branch rems and there is
no cross-branch accounting within Horizon this removes
the discrepancy."
And then if we can then go to {F/1393}, this is
PEAK 207, which is just for your Lordship's note not the
other release PEAK that was mentioned in the previous
document, because that ends 024, it is a third one. And
here we can see halfway down that the date is 21 October
we're in now and there is email correspondence involving
Mr Parker as the originator -- your Lordship will see
"Originator" about halfway down the page, just below
where it goes from sort of green to duck egg green or
duck egg blue, 21 October 2015, 13.35.01. Four lines
down:
"Originator: Parker Steve ..."
Which we understand to be Mr Stephen Parker who is
giving evidence in this trial. And we can see that
there is correspondence from Tony Wicks to Anne Chambers
about Anne Chambers having done most of the
investigation into this. If we look at the bottom we
see Tony Wicks on 20 October 2015 at 15.25 to
Sandie Bothick saying:
"Hi Sandy,
"Looking at PEAK [949] ..."
Which --
MR JUSTICE FRASER: That's the one we started with.
MR GREEN: Exactly, so that's effectively the master -- it
is treated as the clone master PEAK:
"Looking at PEAK [949] it appears to be derived from
I7991774 and I found TfS incident ..."
And there is a number there:
"There is no problem record raised for this, however
PEAK [997] was used by development to investigate this.
A code fix has been developed, but requires official
testing and releasing. I've made enquiries and
unfortunately LST are unable to take the fix for testing
and release 12.88 without significantly impacted that
release to live.
"As the condition can be avoided by postmasters,
ie by making them aware of the condition and advising
them not to press enter multiple times, I propose that
this is KELed and included in the counter release
13.05."
And just a bit further down {F/1393/2},
Sandie Bothick is replying. She is saying:
"Hi POA DM ..."
Duty Manager:
"Have PEAK make you aware of this issue?
"Do you have a PR open ..."
And so forth. And then below is what she sent to
Atos earlier:
"Hi Katie, I'm coming in blind on this. Looking at
the incident this is our update from PEAK TfS
connector ..."
And so forth. Then there are further references to
the 997 PEAK:
"We are continuing to investigate the problem ..."
Just over halfway down:
"... but any fix will not retrospectively change the
branch accounts."
MR JUSTICE FRASER: Yes.
MR GREEN: "So we are aware of the issue and are continuing
to investigate but NBSC should be able to sort the
discrepancy out in the meantime."
MR JUSTICE FRASER: I think if you are going to move on to
another document I think we should take a break.
MR GREEN: Shall we take a break there?
MR JUSTICE FRASER: Yes. Come back again at 12.
(11.54 am)
(Short Break)
(12.00 pm)
MR GREEN: My Lord, can I just highlight a couple of
remaining points in this PEAK. If we can begin at
{F/1393/4} please.
MR JUSTICE FRASER: This is still in PEAK 207, is it?
MR GREEN: It is still in PEAK 207, exactly.
Now, your Lordship will see at the bottom of that
page, Monday October 19th, 2015 at 5.33 pm.
MR JUSTICE FRASER: Yes.
MR GREEN: "IT-Solutions R SPM Post Office incident
management".
"Hi Ibrahim, as this incident is not getting
resolved can we have a concall set up between NBSC &
Fujitsu.
"The site had transaction discrepancy. As per
Fujitsu, they have found 4 other instances (outreach
branches ..."
It gives the name:
"... and all but the last removed the discrepancy by
completing a rem out for the excess ..."
Then if we go back to the previous page {F/1393/4},
there is an email which is on 20 October 2015 at 9.53 at
the top of the page, part of it, and if we come down
four paragraphs -- well, let's maybe take it from the
second line:
"She was concerned as she had never seen this
before. She balanced core and it was correct, but
outreach was £24,000 short.
"Although the core had sent only one lot of £8,000,
the outreach had accepted 4 lots of £8,000 in one
transaction!
"She has spoken to NBSC ref 1358666 who told her it
was a technical issue.
"She then phoned the IT help desk ref I7972295. She
was unconvinced they understood the problem although
they said they could probably 'rectify remotely'. After
waiting till the end of day she called back and
escalated to option 7 and spoke to Rich who told her to
phone NBSC.
"I don't think the helpline understood what's
happened. I can understand that as you would think it
is not possible. But incredibly Anne's outreach Horizon
now shows £24,000 short and it does not exist. As you
can imagine, Anne is concerned and I have told her not
to touch the outreach unit until this is resolved for
her.
"The incident was passed to Fujitsu who have advised
that in order to resolve the issue the branch/NBSC must
'complete a rem out for the excess to correct the cash
holding' which Fujitsu are unable to do. The NBSC has
subsequently advised that they cannot assist as this is
an IT issue, however Fujitsu are also advising that they
cannot assist. As a result, the issue has been passed
back and forward for over a week."
Then if we go back a page {F/1393/3} to 20 October
at 10.42, Kendra Dickinson at the Post Office says:
"Could I enlist your help and support on the below
issue please?"
MR JUSTICE FRASER: This is underneath "Hi Rod/Dawn"?
MR GREEN: Exactly.
"Whilst I am happy for NBSC to try and support where
they can, the concern I have with the below is that we
have no process for managing this type of issue and we
are unable to see any of the back-end accounting for
this branch. Therefore, any advice that we try and
provide could end up making matters worse - this is
already showing a 24K loss. I am not happy for NBSC to
give advice on something that is not a process that
exists within the knowledge base.
"Similar to a disconnected session, NBSC would have
no understanding as to the implications on branch
accounting if they were to advise the branch as
suggested below."
And then if we go up there, there is more about the
difficulty of NBSC giving help and advice with
insufficient information, top of that page, which is
under Tuesday 20 October at 11.57:
"... an explanation of the root cause to be supplied
by Fujitsu via Atos so that both our Finance Service
Centre and NBSC colleagues can be assured that the right
advice is given, there is no impact to the branch
account and a full audit trail is available. It does
not feel right for Atos and Fujitsu to be giving
instruction to NBSC to speak to branches with advice
with insufficient information.
"If this has happened in this case it would be
useful to see that in this email trail.
Then if we go back a page to {F/1393/2}, halfway
down the page -- this is in the Sandie Bothick email
that appears to start at the top and appears to include
what she sent to Katie, who I think I referred
your Lordship to already. If we come halfway down does
your Lordship see "POA-Horizon".
MR JUSTICE FRASER: No. Oh yes, I see it.
MR GREEN: Just there and then you have "Provider ref" and
a reference to the 949 PEAK.
MR JUSTICE FRASER: This is the one we have seen already.
MR GREEN: Indeed. It says:
"Resolution details: update by Anne Chambers:
category 70 - final - avoidance action supplied: we have
found that if there is a log-out before a user has fully
logged on, then subsequently a pouch is remmed in
manually (most likely at an outreach branch), then after
the rem in slip has been printed, the same screen is
redisplayed and the user is likely to press enter again
and duplicate the remittance, possibly several times.
A different screen should be displayed which would
prevent this happening.
"A rem in slip is printed each time, showing the
same details but different session numbers, and
a transaction log search confirms the repeated rems."
And then importantly, we would respectfully say, she
says:
"This is not an area that has changed for several
years so it is likely to have happened before but we
have no record of it having been reported to us. I can
only check back two months; I've found 4 other instances
[of the outreach branches] ... and all but the last
removed the discrepancy by completing a rem out for the
excess ..."
MR JUSTICE FRASER: Those four must be in the last two
months, mustn't they?
MR GREEN: Precisely. So pausing there --
MR JUSTICE FRASER: On the face of the document they must be
the last two months.
MR GREEN: Exactly. So pausing there, your Lordship will be
beginning to get a feel for the fact that it is quite
difficult to identify with confidence from a particular
KEL that you have necessarily found any related KELs, or
from a particular PEAK that you have necessarily
identified all of the PEAKs that relate to that problem
and there is obviously some information flow
practicalities, both in relation to what information
flows to the affected subpostmaster and whether there's
a clear process for that, and also internally about the
reporting of these issues by Post Office through its
processes back to Fujitsu because the reporting of those
issues is obviously essential to one of Dr Worden's
countermeasures in terms of fixes being applied to
correct the system errors.
From there can I invite your Lordship just to see
{F/1389} and {F/1389} is -- that's 949 that we have
identified as the PEAK we have looked at and then when
we look at the reference to the additional receipts
being produced we need to look at a couple of
documents --
MR JUSTICE FRASER: Do you mean on the same PEAK?
MR GREEN: Yes, this is still -- this is all cross-referring
to the same ones. We've got {F/1386}, and, my Lord,
this makes good the advantage to a subpostmaster --
"advantage" is a relative term, but compared to some
other software issues. By being on both ends of the
transaction she is able to produce what has gone out and
in. So we've got the remming in money which should be
£8,000 and you've got on the right-hand side four
separate remming ins of £8,000, all effectively in the
same -- within one minute of each other, those four
separate receipts coming down the right-hand side and
one slightly on the left, numbered 1 to 4.
If we then go to 1392 we've got the events log which
the subpostmistress was able to see showing rem out slip
on the left-hand side where she has written "Rem out"
and then on the right-hand side she has identified
multiple receipts being printed which are the four
receipts we have just looked at. So on this particular
bug this subpostmistress at Dalmellington had both ends
of the data, as it were, and was able to say "Look, this
cannot possibly be right."
MR JUSTICE FRASER: Yes.
MR GREEN: And that is obviously reflected in the
recognition internally within Post Office of what's then
happened.
Then if we just briefly go back, your Lordship will
notice that the date of the event itself is 8 October
and then we get the record created at 12th and notes at
13th and then the later ones where they are arguing
about the fact it has been bounced back between helpline
and Fujitsu are dated the 20th, just to get the timeline
clear in that respect.
Can I take your Lordship now to the underlying KEL
which is at {F/1426}. So this was a KEL raised by
Anne Chambers on 15 October 2015, so on the face of it
looks like prior to that date the acha6 -- it is
difficult to see, prior to that date of 15 October 2015,
to what extent there was an existing KEL identifying
this on the face of the documents.
MR JUSTICE FRASER: Yes.
MR GREEN: And the symptoms are described:
"A cash pouch was received at an outreach branch and
scanned into Horizon. The manual process was followed
and 2 Delivery Receipts printed. Then the clerk pressed
Enter to complete the process, and a Rem In slip was
printed. They were then able to press Enter again and
another Rem In slip was printed - and the same amount of
cash was recorded a second time. They may have repeated
several times before using Cancel to escape, resulting
in much more cash being recorded on the system than they
actually have."
And "Solution - ATOS" at the bottom -- they refer to
the problem they have identified which is a problem
your Lordship has already seen. "Solution":
"Known problem should now be fixed so any further
occurrences need to be investigated - send call to PEAK.
"Outreach branches can avoid the problem by making
sure that they do not press Enter again after they have
printed both Delivery Receipts and the Rem In slip - if
they find the Rem In screen is still displayed they
should press Cancel to get out of it, ignoring the
message that not everything has been printed."
So actually what's reflected there, my Lord, just
pausing, is that what's shown on the screen is actually
positively misleading and that is in fairness to some
extent reflected in the next sentence on {F/1426/2},
where they say:
"However, they are unlikely to notice immediately
that they are on the wrong screen, and will probably
have duplicated the rem in before realising something is
wrong."
Because if you successfully press the enter button
it's meant to move on to the next screen, so when it
doesn't go away they just keep pressing it.
MR JUSTICE FRASER: That says in the third paragraph:
"The cause of the problem is being investigated ..."
MR GREEN: Indeed.
MR JUSTICE FRASER: And can we go back to the previous page,
page 1 {F/1426/1}:
"Known problem should now be fixed ..."
What does "known problem" mean?
MR GREEN: My Lord, this is one of the points -- there are
two tasks I'm trying to do, which is to try to
interrogate the documents as helpfully as I can for
the court, but at the same time try to identify to
the court the difficulties that one is -- anyone is
faced with when looking at the incomplete picture that
the experts have referred to.
MR JUSTICE FRASER: All right, understood. Let's go on to
page 2 again please {F/1426/2}.
MR GREEN: And your Lordship will see again there:
"... but it will not retrospectively correct the
accounts at affected branches."
So that's noted again there.
Now, what in fact happened was there was external
third party interest in this problem and that resulted
in a Fujitsu presentation on 10 December 2015. To be
fair to Post Office, Post Office wanted answers but
wanted an identification of root cause and there's also
some pressure from a blogger at the time which we will
see later, and at {F/1415}, there is a Fujitsu
presentation on 10 December 2015 on the branch outreach
issue. "Initial findings", the first page confirms it
is for Post Office's internal purposes only as
confidential. If we go over the page {F/1415/2} it
confirms there are potentially two separate issues at
play. It:
"Doesn't correctly close down on the post log on
script. This leaves the script on the 'stack' of
incomplete processes."
And also:
"The pouch delivery script thinks it has completed
doesn't explicitly finish".
And there's some consideration of that.
If we look at page 3 {F/1415/3}, as
at December 2015, the date of this presentation,
Post Office knew from Fujitsu that there had been 112
occurrences that Fujitsu had identified of duplicate
pouch IDs over the past five years, three issues with
duplicate pouches, 47 outreach cases, 19 using the
"Previous" button after a pouch scan, which was said to
have been fixed March 2010, 46 remitted at multiple
counters, fixed January 2011, 108 items corrected at the
time either by transaction correction or subpostmaster
referral, four items still to be confirmed, no items
related to the period where the mediation scheme --
MR JUSTICE FRASER: What does BLE stand for at the top?
MR GREEN: I'm not --
MR JUSTICE FRASER: If you don't know it doesn't matter.
MR GREEN: I'm not sure I know, my Lord. I was going to
hazard a guess but I'm not sure I'm right. Maybe we can
check that.
And if we go forward to page 7 {F/1415/7} of that
document please, in 2010/2011 there were 65 incidents of
a slightly different iteration where the "Previous"
button -- if you used the "Previous" key during or just
after the pouch barcode scans you get a multiple remming
in problem and:
"No more occurrences found post fix."
And then 46 remittances at two counters, that's the
same pouch being remitted at the same branch at more
than one counter. 46TCs reviewed and applied by
Post Office and then a fix applied in January 2011, "No
more occurrences found post fix", fully aware of both at
the time.
MR JUSTICE FRASER: And are these -- I think you said
previous iterations?
MR GREEN: Previous iterations of related but not identical
code issues that led to multiple remming in.
MR JUSTICE FRASER: Because they are not all under the same
PEAK number, are they?
MR GREEN: They're not. So tracing exactly where it is
found is not absolutely straightforward.
MR JUSTICE FRASER: Because part of the document you showed
me before was the people involved trying to find out if
it there was an existing PEAK number to which it
related.
MR GREEN: Precisely.
Then if we go over to page 8 {F/1415/8}, this goes
to the flow of information from Post Office to Fujitsu
in order to ensure timely corrections of the software.
One transaction correction completed by Post Office,
five remittance transactions completed by PMs, zero
calls raised with Fujitsu. Nine incidents in 2012, zero
calls with Fujitsu. Seven incidents in 2013, zero calls
with Fujitsu. Two unknown outcomes noted in 2013,
£25,000 and 2,500. And those, until I think it was
yesterday or the day before, we didn't have clarity on
what had happened on those. There is now greater
clarity as a result of some additional documents that
we've got from Post Office.
The further "Detailed preliminary findings" on
page 9 {F/1415/9}, identify 2014, nine incidents, no
calls and then 2015 to 2016, one call raised with
Fujitsu, which is effectively the call which I think is
Ann Ireland's call which I think ultimately goes
through. Then "January 2016 fix to be applied".
So that gives your Lordship a feel for how in this
particular example the information flow appears to have
worked. There had been a five-year period over which
double remming system errors had been detected, there
had been some fixes of aspects of that, but it's
uncertain -- it's difficult to analyse precisely the
genesis of all of those incidents.
If we now go to {F/1399}, we can see that
Computer Weekly was running an article about the problem
that the CWU was looking into and if we look on page 3
of that document {F/1399/3}, we can see at the top of
the page:
"The alleged problem investigated by the CWU
involves the process where subpostmasters transfer money
from a core Post Office branch to a remote branch
created to serve rural areas, known as an outreach,
which is basically a branch on a laptop. These
processes are known as remittances."
And so forth. So "Post Office department recognises
duplication problem" at the bottom:
"Following a post on a web forum, another postmaster
recognised the problem as something she had experienced
in the past, and the financial department of the
Post Office in Chesterfield was contacted on her advice.
"According to the postmasters' branch of the CWU,
the financial department recognised the issue and told
the postmaster they would need to send a positive
monetary change to the Horizon branch accounts ..."
So that was following a post on a web forum. So
although it is clear that there are cases that have been
identified and have been corrected, precisely how that
has happened may vary from case to case.
At the bottom:
"The alleged fault, if proved, would question the
Post Office's continued claims that there are no
systemic faults in Horizon."
So that was what was happening in November. There
is a follow-up article at {F/1405} which is
a Computer Weekly article, on 18 November 2015.
MR JUSTICE FRASER: I'm not sure we are there yet. Where do
you want to go now?
MR GREEN: I'm not going to take you to the detail of it.
Just so your Lordship knows, there is a follow-up to the
point --
MR JUSTICE FRASER: Which is at F/1405?
MR GREEN: This is at F/1405.
So just stepping back from this, this bug is
significant in the sense that not only was it one that
was at the top end of the visibility for proof for the
subpostmaster, who actually got both ends of the
receipts, but there is also public pressure being
applied in the media specifically on the issue
in November and then we have actually got the Fujitsu
presentation about it, so there's an unusually rich
source of information available to the claimants and
the court in respect of that.
There are then internal Post Office emails at
{F/1495.1/5} and the first four pages of this are
redacted but it is an email from Paula Vennells, the
chief executive, citing a blog post by Mr McCormack, who
was a fairly energetic blogger on this topic and
I haven't taken your Lordship to his blogs but they were
happening in parallel, and she says:
"Dear both,
"This needs looking into please ... can I have
a report that takes the points in order and explains
them.
"Tim McCormack is campaigning against PO and
Horizon. I had another note from him this am which Tom
will forward, so you are both in the loop.
"We must take him seriously and professionally.
"This particular blog is independent of Sparrow but
clearly related in that it appears to present similar
challenges that were raised in the course of the scheme.
"I'm most concerned that we/our suppliers appear to
be very lax at handling 24k."
Pausing there, that appears to be a reference to the
triple sum rather than to any of the outstanding cases
they haven't traced because they were 2,500 and 25,000.
And response on the same day at {F/1495.2/1} from
a Rob Houghton who was head of IT at Post Office, so we
there get:
"I need an urgent review and mini <taskforce> on
this one."
MR JUSTICE FRASER: Where are you reading?
MR GREEN: Sorry, immediately under Rob Houghton's response
at the top, third of the way down, copied in to Angela
van den Bogerd, "The Dalmellington error in
Horizon/problems with POL" which was the news article.
"I need an urgent review and mini <taskforce> on
this one. It probably needs to link up heavily with
Angela's work as FSC are mentioned extensively ..."
This is 1 July 2016, my Lord:
"... - Angela cfi."
Copied for information presumably:
"I don't know how we respond to this but can we
section a few inside people to get all over it and give
me/Al/Paula evidence and understanding."
And then at the top of the page the response at
11.59, which is difficult to fit into the chronology,
appears to be on the same day, Friday 1 July:
"Can you stand down on this please?"
Redacted:
"Any specific actions and I will revert.
"My apologies."
Pausing there, the claimants' letter of claim was
sent on 28 April 2016 and the Post Office sent its
letter of response on 28 July 2016 so nearly four weeks
after the decision to stand down on the investigation of
that bug. So as at the date that the Post Office was
responding in its letter of response, it had front and
centre in its mind the existence of this bug.
Now, that bug was not disclosed in the letter of
response. The bugs that were disclosed in the letter of
response were the three that Second Sight had already
found and Post Office letter of response, if we can just
turn to {H/2/95}, stated --
MR JUSTICE FRASER: That's the letter of response, is that
right?
MR GREEN: Yes.
MR JUSTICE FRASER: This is the schedule 6 rebuttal, is that
right?
MR GREEN: Precisely.
This is where the Post Office obviously rebuts the
allegations that have been made in the letter of claim
and at 1.5:
"Second Sight only reported on a number of already
resolved defects in Horizon (which they called 'bugs').
Second Sight did not discover these defects through its
investigations. These were issues already known to and
remedied by Post Office. It was Post Office that
disclosed them to Second Sight."
So those are the three. Then 1.6 deals with the
lack of attribution of any shortfall in the scheme to
Horizon. Then 1.7:
"The letter of claim also presents no evidence that
a defect in Horizon has caused a postmaster to be held
wrongfully liable for any shortfall in their branch.
"Nevertheless, you make repeated references to the
existence of historic defects in Horizon in order to
give a false impression that Horizon deeply suffers from
major defects, that Post Office does nothing about them
and that these errors have caused postmasters losses
which have gone unremedied. In order to dispel any
myths around the defects reported on by Second Sight and
cited by other sources, we have set out below in detail
what happened in these instances. To be clear -
Post Office does not claim that these have been the only
defects in Horizon."
So what they do do is they respond to the three that
were known about, but they don't give any account of the
Dalmellington bug or of its true extent which they well
knew about from the Fujitsu presentation -- sorry,
Dalmellington related issue on multiple remmings,
because there are a number of different PEAKs and
different software code problems that relate to multiple
remming.
So if we just look over the page, just
parenthetically, my Lord, if we may, at {H/2/96}. In
relation to the Callendar Square, Falkirk issue, that is
said to be an issue that only affects one branch and it
is ruled out in the -- at the bottom:
"... also raised as part of a defence in a civil
action by Post Office against a former postmaster,
Lee Castleton ... The Court accepted the evidence from
Fujitsu’s witness, Anne Chambers, and found 'no
evidence' of the Falkirk bug in Mr Castleton’s branch."
We now know from Mr Godeseth's witness statement of
16 November that this bug affected 30 branches and
resulted in mismatches at 20 branches.
So it's not just in the letter of response that they
don't deal with Dalmellington, but it's not a full
account perhaps of what was being said.
MR JUSTICE FRASER: The Callendar Square one affected
30 branches.
MR GREEN: Indeed.
MR JUSTICE FRASER: That's different to the Dalmellington
one.
MR GREEN: Completely separate.
MR JUSTICE FRASER: Is there a list of those 30 branches
somewhere?
MR GREEN: I think we've got -- I will trace where it is.
MR JUSTICE FRASER: Just give me the reference in due
course.
MR GREEN: Of course.
Coming back to Dalmellington, so what in fact
happens is it is not disclosed in the letter of response
and then the experts are then provided essentially with
8,000 KELs and about 220,000 PEAKs. My Lord, just for
your Lordship's note, in the appendix we have dealt with
how we obtained the KELs and the genesis of that
disclosure at {A/1/12-14} and then we have set it out in
greater detail in the appendix.
MR JUSTICE FRASER: Which is at 106 I think.
MR GREEN: Indeed.
So what in fact happens is there is the --
eventually we get the KELs.
MR JUSTICE FRASER: I made an order I think, didn't I?
MR GREEN: Your Lordship made an order, exactly. And they
had first been -- the KELs had been requested in the
letter of claim and your Lordship made observations
about the response to that earlier.
What in fact happens is Mr Coyne is the person who
discovers the existence of the Dalmellington bug in his
first report. If we look at that, it's {D2/1/58}. And
he actually locates it -- it is paragraph 5.16 -- and
your Lordship will see at paragraph 5.16 he explains
what's happened and footnote 46 is the email thread and
then he also finds the duplicated branch receipts and
then if we can just go to page 60 of that document --
MR JUSTICE FRASER: Page 60 of which document?
MR GREEN: Of Mr Coyne's first report {D2/1/60}.
Your Lordship will see that although he does refer to
a KEL at 5.23:
"... evidence of cash declaration discrepancies
arising from clerks duplicating remittance in
transactions ... because of wrong messages being
presented on the Horizon counter screen ..."
MR JUSTICE FRASER: Yes.
MR GREEN: He has not at that stage worked out that this is
the Dalmellington bug. So it just gives your Lordship
an insight into how we had to discover what was done.
Then Mr Parker and Mr Godeseth's evidence is
significant because the bug was not dealt with in the
first round of the Post Office's evidence at all and
only after it was referenced by Mr Coyne was it dealt
with in the first statement of Mr Parker and the second
of Mr Godeseth and Mr Parker confirmed the link between
the KEL and Dalmellington and says temporary financial
impact which was rectified by a transaction correction
being issued. Mr Godeseth then discloses the 112
instances of duplicate bar codes and then appends the
analysis that I have already mentioned to the court.
Then Dr Worden's initial analysis, which is
7 December 2018, does not reference Dalmellington, so
Post Office appear not to have told him about it, or he
has not dealt with it, we don't know which it is, and
despite the fact that it had actually been referenced by
Mr Coyne in Coyne 1 and he is responding to it, and
referenced in Godeseth 2 and Parker 1, which are
statements which Dr Worden -- I'm sorry, I was corrected
by my learned friend earlier, I have forgotten to say
that: my Lord, Dr Worden pronounces his name Dr Worden,
I have been pronouncing it wrongly.
Despite the fact that Dr Worden has referred to the
defendant's witness statements on other matters. He did
mention the KEL and he regarded it as having --
MR JUSTICE FRASER: Are you talking about Worden 2 now or
Worden 1?
MR GREEN: This is Worden 1. Then Mr Coyne, in Coyne 2,
identifies further PEAKs on his own without any
assistance from Post Office and sets those out -- no
need to turn it up, I will just give the references
{D2/4/105} and the PEAKs concerned are the 207 PEAK
which we have looked at which is {F/1393}, and 949 PEAK,
{F/1389}.
MR JUSTICE FRASER: Sorry, can you give me the first one
again?
MR GREEN: Sorry, the 207 PEAK is {F/1393} and the 949 PEAK
is {F/1389}. Then Mr Coyne then attempts to look for
PEAKs with FAD codes of those branches whose situations
are unresolved and can't find anything. There are four
unresolved of which two are a significant sum and he
mentions that at Coyne 2, paragraph 4.53, we don't need
to go there but it is {D2/4/107}.
Then in Dr Worden's second report he does refer to
Dalmellington, explaining he didn't realise that the KEL
he was looking at related to Dalmellington and he
concludes that there was no permanent error due to the
branch account because it was resolved by a TC, a PEAK
and KEL were created, so the system worked well and it
was fixed, and his opinion is re-enforced by the small
maximum financial impact that he has estimated of
incorrect TCs. He doesn't actually expressly mention
the 112 occurrences, the 87 other branches affected or
there that it lay undetected for five years, at least
for some parts of that aspects of it appear to have been
corrected by various fixes, the lack of calls put into
Fujitsu or actually directly address the four branches
where there is no outcome confirmed.
So stepping back, your Lordship will now have
a picture of the task and the information available, why
the experts are agreed that the KELs and PEAKs have
relevant information in them but not a complete picture,
and how this particular bug was addressed.
Now, the postscript to this is that four hours and
45 minutes after our written opening had been filed with
the court, so at 4.45 on 4 March, PO disclosed for the
first time 36 additional documents.
If we look at {H/232} --
MR JUSTICE FRASER: Are these documents other than the ones
you mention in one of your paragraphs as being
outstanding that Mr Coyne had asked for?
MR GREEN: My Lord, they are -- well, I think they overlap
because they relate to the Dalmellington bug, some of
them.
MR JUSTICE FRASER: So 36 new documents. Where are we going
now?
MR GREEN: This is {H/232}, so this is the letter on
4 March, 4.45 in the afternoon, so after written
openings had been filed with the court and it says:
"During preparation for trial a number of further
documents which relate to the Horizon issues trial have
come to Post Office's attention.
"Disclosure of these documents is being provided by
way of enclosed disclosure list. The enclosed list also
contains those documents which have been provided to the
claimants but not yet formally disclosed."
My Lord, I'm not going to deal with the contents of
those documents now, but I am going to have to take
Dr Worden to them and some of the witnesses to them, but
in fact what seems to have happened, there's some sort
of investigation that has been done in relation to the
two outstanding branches that we said were unremedied in
our opening and a conclusion is reached that it is
probably all fine, if I can put it in fairly neutral
terms at the moment.
There are other bugs which we are obviously
concerned about whether we got the full picture on but
that will emerge in the evidence.
The background, my Lord, if I can just very quickly
take your Lordship through it. There is correspondence
which covers the disclosed documents here and the
Dalmellington bug, which starts on 2 October 2018 at
{H/122} in which we refer to the bug or error, we refer
to bugs which are in addition to those acknowledged in
the letter of response and ask for all documents
relating to these bugs and errors.
MR JUSTICE FRASER: Yes.
MR GREEN: So that's when it starts. My Lord, I'm not going
to take your Lordship through all the correspondence.
Can I just give you the references.
MR JUSTICE FRASER: Go on.
MR GREEN: There's a chaser on 13 December 2018 {H/147},
there's the 11 January 2018 letter from Wombles at
{H/165} offering voluntary disclosure of documents,
providing 162 documents for Dalmellington; there's the
22 January 2019 letter at {H/173/6} referring to the
four unknown branches that I have just been talking
about.
MR JUSTICE FRASER: That's a letter from your solicitors?
MR GREEN: From my solicitors.
1 February, we've got Mr Coyne's second witness
statement at 4.51 to 4.53 {D2/106}, 11 February, some
disclosure, but 4 March these actual documents relating
to those outstanding branches.
MR JUSTICE FRASER: Thank you very much.
MR GREEN: My Lord, that's hopefully a helpful introduction
to what the micro texture of the facts looks like,
trying to build up and answer the question.
Can I just very briefly take your Lordship to
a couple of documents which give an overview from the
internal perspective of Post Office and your Lordship
will have in mind that if we just quickly turn to
{F/1325/145}, Post Office's public position in its
response to Second Sight of 11 March 2015, paragraphs 18
and 19:
"Questions were raised about Post Office's plans to
change to a new system when the Post Office's current
contract with Fujitsu in respect of Horizon comes to an
end in March 2017.
"Post Office's intention to move to a new system
does not reflect any dissatisfaction or lack of
confidence in Horizon. It is simply that the current
contractual arrangements are due to expire."
So that's the public position. And there are
a number of documents -- given the time I will just take
your Lordship to a couple of them -- which suggest that
there were concerns with both the overall IT system and
also the back office aspects of that and the ability
properly to control and understand the sorts of issues
that would be required in reconciling data.
If we can go very briefly to {F/1557}, this is
22 October 2016, paragraph 3:
"Our back office also struggles with the
complications of dealing differently with each of our
many clients, heavily manual processes, reconciling
disparate sources of data, retrospective financial
controls and a lack of flexibility. This backlog of
challenges, poor support contracts and a lack of skills
have led to a prohibitive cost of change, preventing the
about improvements that should occur as part of
a business as usual."
And if we go then forward please to {F/1587/1}.
This is a draft document dated 28 November 2016, so
I qualify it with the fact that it is a draft, and
"Context" it says:
"This document forms an update to the IT strategy
approved in July by the POL board. In July we outlined
that IT was not fit for purpose, expensive and hard to
change."
If we go to page 3 of that document {F/1587/3},
paragraph 1:
"The IT strategy outlined a view of the current
state of technology within POL as failing to meet POL
aspirations on any assessment lens (cost, risk, delivery
or service)."
And paragraph 5:
"Our greatest 'run the business' risk areas where we
are outside of appetite are age and state of the legacy
environment (eg Horizon availability, back office
estate, lack of resiliance and [disaster recovery] of
core platforms ...) ..."
Then Mick 24.11.16 appears to be repeatedly
referenced throughout this document. One of the main
risk drivers over the page at {F/1587/4} is lack of
a robust IT and controls environment in the table at
paragraph 7, that's one of the main risk drivers
identified in this document in November 2017. Then if
we can just briefly go to the final version of that
document at {F/1610}, that's dated 30 January 2017 and
your Lordship will note from that page that in context
again the line that was in the draft has survived the
considered review that doubtless took place before it
was finalised:
"In July we outlined that IT was not fit for
purpose, expensive and difficult to change."
And the conclusion refers to reporting on the IT
strategy in July. And at page 2 {F/1610/2}, the first
indented bullet point:
"We need to quickly rationalise and resolve
misaligned contracts enacted to support legacy IT,
obsolescence, a lack of PO technical competence,
particular focus on Fujitsu and Accenture."
And on page 3 of that document {F/1610/3} at bullet
point 1:
"The IT strategy outlined a view of the current
state of technology within PO as failing to meet PO
aspirations on any assessment lens ..."
Which is the quote I have already identified to
your Lordship. And quite a lot more of the same. The
only last page I would refer your Lordship to just very
briefly -- we will have to go to these in more detail
with other witnesses, but at page 8 of that document
{F/1610/8} there's a diagram on page 8 and it is
introduced by the bullet point just above it:
"The following highlights the current operational
risk areas referred to earlier in the document and the
initiatives underway or proposed ... to migrate these
into risk appetite - purple - severe risk, red -
high risk, amber - within appetite but attention
required ..."
And your Lordship will note that the Horizon branch
systems box is in red in the Post Office's own internal
document.
MR JUSTICE FRASER: Which means it is high risk.
MR GREEN: It means it is high risk.
MR JUSTICE FRASER: Yes.
MR GREEN: My Lord, in overview then, your Lordship will be
hearing some important factual evidence which we
respectfully say is going to be an absolutely essential
bedrock for the experts then to give their considered
opinions on, after the factual evidence that Post Office
has put forward has been properly tested, because I'm
afraid we've got some aspirational "would have" evidence
and conclusions feeding through into the expert reports.
The three key points are the parties radically
differ on their approach to working out the answers. We
are going to commend the approach of what actually
happened rather than the hypotheses. The second is that
we are confident that the factual enquiry that will be
undertaken will enable your Lordship to have a more
robust basis for drawing any inferences as to the
answers than without it. And the final point is that
the question of robustness we respectfully say, while
relevant, is not going to be the determinative prism
through which those issues fall to be answered.
MR JUSTICE FRASER: Final question. Trial management, we
are starting with Mr Latif tomorrow.
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: He is on the video, is that right?
MR GREEN: He is. He is travelling specially to Islamabad
to get a better connection.
MR JUSTICE FRASER: In view of time difference do you want
to start at 10 rather than 10.30?
MR GREEN: My Lord I think it is all teed up for 10.30.
MR JUSTICE FRASER: That's fine. I need not interfere any
more.
Okay, so 2 o'clock.
(1.00 pm)
(The luncheon adjournment)
(2.00 pm)
Opening submissions by MR DE GARR ROBINSON
MR DE GARR ROBINSON: My Lord, good afternoon. I will just
say something briefly first of all about the claimants'
history, Mr Green's history, of how we got here. He
devotes 25 pages of his opening submissions to those
questions. My submission is that those questions are
mostly a distraction from the important questions in
this case, which is the Horizon issues. Many of the
points that he makes are unfair and some of them we say
are downright wrong, but I will not take up time I don't
have in addressing them in this opening. Instead,
subject to your Lordship, I propose to deal with them in
writing in our written closings. If I have time at the
end of these submissions I may say a few brief things
about some of them, but I suspect I won't have time.
Laying those points to one side, the Horizon issue
consists of 15 questions and, as your Lordship will have
seen from our submissions, we say they can be
conveniently divided into three groups. In descending
order of importance, the first question is is Horizon
robust or does it cause branch shortfalls? The second
group of questions can be summarised as was Fujitsu --
because we are talking about Fujitsu here -- secretly
manipulating Horizon data? And then thirdly there's
a miscellany of factual questions about the function and
operation of the system.
Your Lordship has already heard from Mr Green
indicating that the operational/functional issues are
largely agreed. Despite the apparent differences
between the experts on proper analysis we say there is
no material disagreement between them. They are agreed,
for example, that subpostmasters could run over 100
different types of report covering transactions
conducted at the branch. In the ordinary course these
reports would show enough information for
a subpostmaster to be able to balance his or her
accounts.
My Lord, these reports can be used to identify the
causes of some types of discrepancies but not others
because to do more would require knowledge of complex
back-end systems which subpostmasters cannot be expected
to have and for your Lordship's note that's in the
second joint statement at paragraph 9.3 {D1/2/39}.
It is important to note that it is not suggested by
the claimants that the -- or at least by Mr Coyne at any
rate -- that subpostmasters should be given direct
access to information of a back-end kind and indeed in
his second report your Lordship will note that Mr Coyne
positively disclaims any suggestion of that sort. He
deals with that at paragraph 5.380 which is at
{D2/4/225}.
So why are those issues here? They are here because
it is the claimants' pleaded case that there was
something wrong with the way in which Horizon was
designed and operated for subpostmasters. For example,
they say there was an asymmetry of information which was
inappropriate. Horizon did not give them the
information that they should have done. Amongst other
things, the suggestion seems to be that it should have
notified them of bugs, it should have given them far
more information than it did to enable them to dispute
shortfalls.
Your Lordship will see that from paragraph 19.3 of
the generic particulars of claim. I won't take
your Lordship to it but for your note the reference is
{C3/1/7}, where there is a reference to limitations on
subpostmasters' ability to access, identify and
reconcile transactions recorded on Horizon and the lack
of any or any adequate report writing features as
repeatedly raised by Mr Bates.
Now, that is what is noted by Dr Worden in his first
report and he discerns an assumption, he says, in the
claimants' case that there is something wrong with the
level of information that's provided to subpostmasters
and your Lordship will see that, for example, in
paragraph 954 of his first report, the reference to
which is {D3/1/213}.
My Lord, in my submission he correctly discerned
that allegation in the claimants' case, but in
Mr Coyne's second report, paragraph 5.380, that's
{D2/4/226}, Mr Coyne has now firmly disassociated
himself from that suggestion. So that's good news, it
means we can put that aspect of the claimants' case to
one side.
But the claimants' opening does go further. It
spends a great deal of time addressing the effectiveness
of the information that was provided to subpostmasters,
the reports that are covered in the functional and
operational issues. In my respectful submission, that
is unnecessary and inappropriate for the purposes of
this trial. It is not a Horizon issue -- the
effectiveness of those reports, what can be done with
them is not a Horizon issue. Whether in any given case
a report is sufficient to enable a subpostmaster to
identify the root cause of a discrepancy depends on the
nature of the discrepancy that he or she is faced with.
It is essentially a breach issue and it is not something
that should take any time up in this trial. There is
already quite enough to be arguing about.
So we can put the operational issues largely to one
side. We say, as your Lordship will be well aware, that
the critical issue is one of robustness. The claimants
seem to think that this is the wrong question. Indeed,
they criticise Post Office for seeking to include it in
the Horizon issues, even though all that Post Office did
was seek to formulate issues that reflected the
pleadings.
Now, why is robustness critical? It is explained in
our opening at paragraphs 23 to 26. When the court
decides individual claims an important question will be
whether Post Office can generally rely on accounting
data from Horizon as evidence of what the postmaster or
his staff keyed in at the relevant time, or whether the
relevant claimant can say the court should infer or
presume that the shortfall shown by the accounting data
was caused by a bug. The question of robustness is not
dispositive of that question. What the court decides in
any breach trial will depend on the evidence of that
particular case. For example, it could be shown that
the shortfall was caused by a particular bug operating
in a particular way at a particular time, or it could be
shown that the shortfall was caused by a particular
transaction correction and that that transaction
correction was erroneous, but these are individual
breach issues which will turn on the facts of the
individual breach trials. This trial is to decide the
generic issues. Hence the wording of the Horizon issues
themselves. I don't know whether your Lordship has
a copy of --
MR JUSTICE FRASER: Well, the ones I'm using are at your
annex.
MR DE GARR ROBINSON: Well, I'm grateful.
MR JUSTICE FRASER: They are in a few places but it seemed
the most useful.
MR DE GARR ROBINSON: Yes, we hoped that would be helpful to
your Lordship.
Issue 1:
"To what extent was it possible or likely for bugs,
errors or defects of the nature alleged to the
effects ..."
Set out there. Your Lordship will note that the
issue did not stop at the word "possible". It is common
ground that it's possible. No one is claiming that
Horizon is perfect, no one has ever claimed that Horizon
is perfect. The interesting question is not whether
it's possible; we know it has happened. The interesting
question is whether it is likely.
Similarly with issue 3:
"To what extent and in what respects is the Horizon
system robust and extremely unlikely to be the cause of
shortfalls in branches?"
That asks an extent question. It asks a likelihood
question. Why? Because as I have sought to explain to
your Lordship, that's a useful issue which will then
have a bearing on the conduct of breach trials to be
conducted in the future.
Similarly with issue 4:
"To what extent has there been potential for errors
in data recorded within Horizon to arise in data entry
and so on?"
Again, it is another extent question. And, my Lord,
in paragraph 6, Horizon issue 6:
"To what extent did measures and/or controls that
existed in Horizon prevent, detect, identify, report, or
reduce to an extremely low level the risk of the
following ..."
That's a risk question, an extent of risk question.
So, as I say, my Lord, the critical question that's
raised by the Horizon issues, the relevant Horizon
issues here is not whether it's possible that bugs have
occurred in Horizon which have caused branch shortfalls;
we know it's possible, it's actually happened. That's
not even an issue on the pleadings, my Lord. The
critical issue is the issue that's raised in
paragraph 16 of the generic defence and perhaps I could
ask your Lordship to look at that. It's at bundle
{C3/3/5}. Paragraph 16 reads:
"Highly generalised and speculative allegations are
made that Horizon ... is unreliable or vulnerable to
manipulation and thus may have been the root cause of
some of the losses in branches. Like any IT system,
Horizon is not perfect, but Post Office maintains that
it is robust and that it is extremely unlikely to be the
cause of losses in branches."
My Lord, that means it is extremely unlikely -- in
any given case, when you see a loss in a branch, it is
extremely unlikely that that loss is going to be caused
by a bug.
So, as I say, my Lord, the question is not whether
it's possible for Horizon to create shortfalls, the
question is whether in relation to any given shortfall
Horizon is likely or unlikely, or extremely unlikely, to
have caused those shortfalls. In my submission that's
the essential question at the heart of this trial. It
will allow the parties to know whether at any breach
trial the accounting information on Horizon for the
relevant branch and the relevant month is a valid
generally reliable starting point.
MR JUSTICE FRASER: I'm not in any way being difficult,
I think we may as well just deal with it upfront at the
beginning. Am I to read "robust" as meaning "extremely
unlikely to be the cause", or is there more meaning to
"robust" than that? Because I think whatever it is, we
all have to make sure we are using the word the correct
way, or the same way.
MR DE GARR ROBINSON: The concept of robustness is a concept
which involves reducing to an appropriate low level of
risk, the risk of problems in Horizon causing shortfalls
which have a more than transient effect on branches. So
it involves both measures to prevent bugs arising in the
first place but those measures are never going to be
perfect and it includes measures which operate once
a bug has actually occurred and triggered a result. It
is both aspects of the equation.
I don't say that the word "robust" necessarily means
"extremely low level of risk", but what we say is that
if you have a robust system it produces a result in
which the system works well in the overwhelming majority
of cases and when it doesn't work well there are
measures and controls in place to reduce to a very small
level the risk of bugs causing non-transient lasting
shortfalls in any given set of branch accounts.
MR JUSTICE FRASER: All right, thank you very much.
MR DE GARR ROBINSON: So it is not necessary or indeed in my
submission appropriate to investigate all the bugs or
errors that have ever been found in Horizon if those
bugs have no real impact on branch accounts. There
simply isn't the time for that.
The important thing is to focus on bugs which have
a financial impact on the branch accounts. And, as
I have already sought to explain to your Lordship, one
needs to bear in mind that robustness does not mean bugs
can't occur, or will almost never occur; it includes the
controls and measures which have the effect that when
they do occur they are likely, very likely, to be picked
up and remedied.
One consequence of that is that some bugs may have
an effect on branch accounts which is only going to be
transient because the system supporting Horizon will
pick up the impact and correct it as night follows day
in the ordinary course of the business.
Let me give your Lordship an example. The example
of remming in and remming out. My learned friend spent
some time this morning explaining the Dalmellington bug
and what he described as linked bugs, some other linked
bugs that were also dealt with in the report that
your Lordship saw. Actually those other bugs were
separate bugs -- they had a similar symptom but they
were separate bugs.
In remming it is an easy case. It is particularly
easy when it is an internal rem, as it were, from the
branch to an outreach branch. There are a very small
number of outreach branches. But also more generally
when you are remming in cash that has been provided by
Post Office and is sent to the branch, the Post Office
will have its own record of how much money was sent out
and the branch will have its own record of how much
money was received. If those two numbers don't
reconcile that is going to be picked up as night follows
day and that is going to be the result of some process
which will result in the problem being resolved.
Your Lordship will have seen from the Dalmellington bug
report itself that you saw this morning that a large
number of the impacts that were discussed in the course
of that report were sorted out by transaction
corrections without the need for any intervention by
Fujitsu or anybody else.
In fact, Fujitsu still fixed those bugs,
your Lordship will note, so Fujitsu picked up on the
bugs even though they weren't the result of reports from
subpostmasters to Fujitsu. So Fujitsu itself -- it's
quite a good example of how problems in the system, in
reconciliation, will result in Fujitsu becoming aware of
things because of its own automatic systems and sorting
them out. But the important point is that it will be
extraordinarily rare for a remming in or a remming out
problem ever to produce a result that would have
a lasting effect that will cause a branch to suffer
a shortfall which leaves it powerless to resist. That's
simply not in the nature of the remming process and the
reconciliation processes that are associated with it.
While dealing with reconciliation, my learned friend
I noticed tried to kick me in the heels by inviting me
to state what my case is on reconciliation generally and
transaction corrections --
MR JUSTICE FRASER: I always ignore those sorts of comments.
MR DE GARR ROBINSON: My Lord, it is a tempting thing for
him to do, I understand why he did it, perhaps I would
have done it if I was in his position, but the important
thing to note is that the reconciliation process, we all
know how it works, it is essentially automated and
discrepancies are picked up between the system and when
discrepancies are picked up they are then investigated.
There isn't enough time in this trial to investigate
the processes -- and there are many of them -- by which
discrepancies are investigated. It simply wouldn't be
possible and that's why those issues were positively
excluded from the Horizon issues. There was a debate
about it and that part of the process was excluded and
that's why your Lordship will see from Horizon issues 5
and 15 which deal with reconciliation and TCs,
your Lordship will see that those questions are
essentially factual.
So to the extent that my learned friend is
suggesting that one can only have a Horizon trial if one
had disclosure of every single reconciliation process
that has been operating in Post Office or Horizon for
the last 20 years and every single transaction
correction that's ever been sent in the last 20 years,
my learned friend is in my respectful submission
obviously wrong.
Now, does that mean, as my learned friend would like
to pretend, that it is therefore not possible to have
a trial of the robustness question? And the answer
is: obviously not. We all know that the process by
which reconciliation happens means that where there are
irreconcilable figures, where there are discrepancies
between figures that should be the same, they will be
looked at and in the vast majority of cases they will
result in conversations, they will result in enquiries,
which will cause the problem to be resolved in
a satisfactory way.
My learned friend wants to say "Well, sometimes" --
it being a human process -- "sometimes the corrective
process will come to the wrong conclusion." Well,
my Lord, that doesn't alter the fact that the process
itself is a corrective process, it's a process that will
tend to improve the reliability of the ultimate figures
rather than take away from the reliability of the
ultimate figures.
So, my Lord, that's the very short answer to
my learned friend's question. If he wants a longer one,
or if your Lordship wants a longer one, we can of course
discuss it later.
My Lord, another example of measures which prevent
problems from arising is in relation to recoverable
transactions. Your Lordship will have seen some
discussion of recoverable transaction in the expert
reports and also in some of the witness statements. So,
for example, when the system crashes, there's a power
failure or something similar, it is always possible that
a transaction being undertaken at the branch will not at
that point have reached the Horizon system, for example
because the outage occurs before the basket for the
relevant transaction is closed. It is when the basket
is closed that the transaction gets added to the
branch's Horizon accounts.
Now, in that situation the accounts will not show
the transaction that has been done and it might be that
that transaction has already resulted in cash having
changed hands. My Lord, does that mean there's
a problem in Horizon? Is that the result of a bug which
is a matter of some criticism? My Lord, the answer is
no because what Horizon does have is a system which
enables the transaction that hasn't been recovered to be
identified and your Lordship will see from the witnesses
who are addressing this issue, Mrs Burke for example,
that the unrecovered transaction was actually
specifically identified to her and your Lordship will
also see that Post Office, because of its own
reconciliation processes, was aware of it and was able
to deal with it and Mrs Burke's -- or rather Mr Burke's
branch did not suffer a lasting loss as a result of what
happened on that day.
So, my Lord, those are just two very broad examples
of mechanisms in place that have a tendency to reduce to
an even smaller level the risk of lasting discrepancies,
lasting shortfalls being inflicted on branch accounts as
a result of bugs.
But to take a step back, the critical point I would
like to address your Lordship on is that it is not
helpful simply to ask the question whether it is
possible that there are bugs out there which affect
branch accounts. We know it is possible. The question
is, the interesting question for your Lordship is
whether bugs are likely or unlikely to affect a given
set of branch accounts in a given month in a given
breach trial and, my Lord, on that question possibility
is not the same as probability. You can't simply say
"Well, it's possible it happened", that's not enough.
Now, in their submissions the claimants at times
appear to recognise this, but neither they nor their
expert Mr Coyne acts on it. My learned friend took
your Lordship to paragraph 17 of the claimants' opening
submissions this morning. Perhaps we could have another
look at that. It is at {A/1/9}. The claimants say:
"As to the precise wording of the issues, the
claimants previously made clear that they consider the
wording of some of the issues insisted upon by
Post Office to be unhelpful, but their inclusion was
ultimately agreed by the claimants in order to reach
agreement with Post Office. Post Office had very clear
views on two particular points.
"First, on issue 1 (Robustness): Post Office was
insistent on including this issue, formulated by the
defendant is whether Horizon is 'robust' and 'extremely
unlikely' to cause shortfalls. This reflects language
pleaded in [the defence], and indeed 'robustness' has
been one of Post Office's 'narrative boxes' and
a favoured term in Post Office's public relations
pronouncements ... Coincidentally or otherwise, it has
also featured in the NFSP's defence of Post Office
relied upon by Mrs Van den Bogerd. However, as the
claimants made clear in their [reply], whereas the
claimants' is that it is relatively robust and has
become more robust over time - but not so as to be an
answer to the Claim (and in so far as 'robustness' has,
in this case, a sufficiently clear meaning – addressed
further herein). The combination of Horizon's admitted
imperfections (and discovered bugs and remote access)
and the volume of many millions of transactions, 14 is
entirely consistent with the levels of errors reflected
in the Claimants' case."
My Lord, two points are being made in that
paragraph. The first one I can deal with quickly. It's
that the claimants' own case is that Horizon is
relatively robust.
The second point is that the combination of admitted
imperfections -- and I apprehend my learned friend would
now say the impressions that have been shown as a result
of Mr Coyne's analysis -- and the volume of the many
millions of transactions that are done through Horizon,
is consistent with the level of shortfalls in relation
to which the claimants make their claims in this
litigation.
My Lord, as to the first point, it is simply wrong.
Mr Green has shown you paragraph 37 of his reply, that's
at bundle {C3/4/21}, where it is specifically denied
that Horizon is robust. So on the pleadings at least it
is not the claimants' case that Horizon is relatively
robust, the claimants obviously don't like that, but
after seeing the expert evidence the claimants, as
I apprehend Mr Green, are now admitting the central
issue which was previously denied. In my submission
that's a major achievement from having this trial. In
my further submission it is the opposite of unhelpful to
have raised it as an issue in this trial.
My Lord, the second point -- perhaps we could look
at paragraph 37 -- well, we can pick it up in
paragraph 17.2. What the claimants are saying is that
the relatively small chance of bugs in Horizon, because
of the volume of transactions undertaken in Horizon, is
likely they say to produce the very picture that's
reflected in the claimants' case.
Now, what's important to understand about that is
that the claimants are relying on the concept of
likelihood to support their case, so, as in my
submission they have to, they are groping towards
a numbers argument, the very kind of numbers argument
that Dr Worden makes in his reports and about which they
have so many critical things to say in their
submissions. They say that the level of bugs in Horizon
is likely to reflect the fact of the claimants' case.
But what's entirely unstated in their evidence is how
the level of bugs encountered in Horizon is likely to
produce anything like the £18.7 million of shortfalls
that the claimants say should not have been included in
their accounts. My Lord, and it is unsupported by their
expert who refuses point blank to engage in any
numerical analysis at all and yet at the same time they
criticise Dr Worden for trying.
So in my submission, my Lord, the claimants are in
an awkward position. In making the case which I have
just referred to in paragraph 17.1 they are engaging in
an intellectual process which their own expert refuses
to engage in and which when Dr Worden tries to engage in
it they then criticise him.
The best that they can say is that having found 29
bugs it is possible that other bugs have arisen, but
they won't say anything about how likely it is other
bugs have arisen, how big the effects of those bugs are
likely to be, they won't engage in any kind of questions
of that sort at all.
Now, in their submissions the claimants say that
they will challenge Dr Worden's numerical analyses.
That is to be welcomed. It will assist your Lordship to
assist the soundness of his calculations. At the moment
there is no engagement really by Mr Coyne with any
questions of likelihood or extent, there are just some
criticisms made of some of the assumptions that
Dr Worden makes in his report.
Now, it is worth noting that Dr Worden has a number
of different calculations, some of which are more
complicated and some of which involve more assumptions
than others. Let me just deal with one very simple
calculation. This requires no understanding of
statistics or mathematics. It is set out in section 8.5
of Dr Worden's first report which starts at {D3/1/148}
and it has changed a little bit in Dr Worden's second
report but we don't need to address that in any detail
at this stage.
MR JUSTICE FRASER: I should just tell you for interest I do
understand mathematics and statistics. I'm not being
funny, but I do.
MR DE GARR ROBINSON: No, that's very helpful, my Lord.
I thought I did, my Lord, I have several maths A-levels,
but I realised that my own sense of my own mathematical
abilities was rather greater than it turned out to be.
MR JUSTICE FRASER: I mean this one is just a simple
multiplication, isn't it?
MR DE GARR ROBINSON: Exactly.
MR JUSTICE FRASER: I think most school children would
probably follow this one.
MR DE GARR ROBINSON: Exactly. It is one I understand:
Over the period 2000 to 2018 the Post Office has had
on average 13,650 branches. That means that over that
period it has had more than 3 million sets of monthly
branch accounts. It is nearly 3.1 million but let's
call it 3 million and let's ignore the fact for the
first few years branch accounts were weekly. That
doesn't matter for the purposes of this analysis.
Against that background let's take a substantial bug
like the Suspense Account bug which affected 16 branches
and had a mean financial impact per branch of £1,000.
The chances of that bug affecting any branch is tiny.
It is 16 in 3 million, or 1 in 190,000-odd. The chances
of affecting a claimant branch are even tinier because
the claimant branches tended to be smaller than ordinary
branches. One could engage in all sorts of
calculations, but your Lordship may recall from
Dr Worden's second report that he ends up with
a calculation of a chance of about 1 in 427,000-odd. So
for there to be a 1 in 10 chance for a bug of this scale
to affect one set of monthly account for a claimant
branch, one would need something like 42,000 such bugs.
Of course there's a much simpler way of doing it
which really is just a straight calculation. There have
been 3 million sets of monthly accounts so the chances
of the Suspense Account bug affecting any given set of
monthly accounts is 60 in 3 million or about 5 in
a million, so to get a one in 10 chance of such a bug
you would need to have 50,000 bugs like it.
But, my Lord, all the roads lead to the same basic
result which is that even for a significant bug of that
sort, the number of bugs that would need to exist in
order to have any chance of generating even a portion of
the losses that are claimed by the claimants would be
a wild number that's beyond the dreams of avarice. It
is untenable to suggest that there are 40,000 or 50,000
bugs of that scale going undetected in Horizon for
20 years.
Dr Worden explains that in paragraphs 643 and 644 of
his first report and the reference to that is
{D3/1/152}. And it is interesting, my Lord, that the
claimants very sensibly do not suggest that there will
have been bugs of that scale in that number operating --
lurking secretly in Horizon for the last 20 years and
they don't suggest it because they can't. It's a matter
of common sense. And in my respectful submission just
that calculation demonstrates that the claim made at the
end of paragraph 17.1 of the claimants' submissions is
untenable. A combination of Horizon's impressions with
the volume of transactions done in Horizon is not
entirely consistent with the errors reflected in the
claimants' case. In my respectful submission it is
obviously inconsistent with that.
Just to be clear, that's not to say that a claimant
could not have been hit by a bug. As I hope I have made
clear to your Lordship, Horizon is not perfect. It
remains a possibility, but the important point is how
unlikely it is. But of course the question of whether
an individual claimant has suffered an impact as
a result of a bug is not a point for this trial. That
is a breach issue to be dealt with in an individual
case. This trial is about setting a baseline for
Horizon's reliability, not a final conclusion that will
govern every single breach case that comes before
your Lordship.
Now, before addressing the expert reports on
robustness it is worth noting the large measure of
agreement that now exists between the experts. There is
no dispute about the architecture or capabilities of
Horizon. There's no suggestion that Horizon lacks
important capabilities or that it doesn't generally
perform satisfactorily. There is no suggestion of any
systemic problem lurking in Horizon.
In short, it is accepted that Horizon works well for
the overwhelming majority of cases and consistently with
that it is now common ground between the experts that
Horizon is robust and that its robustness has improved
over time and your Lordship already has the reference,
it is the joint statement, the third joint statement,
page 2, {D1/4/2}.
Now, what does relatively robust mean? It means
robust as compared with comparable systems -- big
systems, systems that keep aircraft in the air, that run
power stations and that run banks.
My Lord, by the same token it is common ground that
the Horizon is not infallible. It has and will continue
to suffer faults every now and then. Sometimes, in
a really small number of cases, those faults will have
an effect on branch accounts, but it should be
remembered that robustness is not just about preventing
bugs from appearing in the first place, it is also about
limiting the lasting detrimental effects when they do
appear.
Your Lordship will hear evidence that bugs affecting
branch accounts are given a high priority when they are
addressed by Fujitsu. They are not ignored. And,
my Lord, the evidence also shows that bugs which have an
effect on branch accounts occur only very rarely indeed.
There is a dispute between the experts as to precisely
how rarely, but in the context of a huge system that's
been in continuous operation for 20 years, that dispute
in my submission does not have a material bearing on the
outcome of this trial. In the overwhelming majority of
cases, branch accounts will not contain a shortfall
caused by a bug and the scale of bugs that would be
needed to undermine that simple fact would be enormous.
Putting the point another way, the difference now
being played out between the experts is at the margins.
They accept that there are imperfections in the Horizon
system with the result that in some rare cases bugs
affecting branch accounts occur and will not be
immediately fixed. The issue between them is how slight
are the relevant imperfections.
The scale of this difference is magnified by the
adversarial process but in the scheme of things, in my
submission, it is in fact tiny and to plagarise
Lord Justice Lewison in section 1 of his first chapter
in the interpretation of contracts, the lazy reader can
stop here.
My Lord, we say that what is already common ground
between the parties means that the claimants must fail
in their primary endeavour to persuade the court to draw
the inference or make the presumption that they want
the court to make or to draw or make, to the effect that
when faced with a shortfall in a set of branch accounts
the shortfall was caused by a bug in Horizon.
Now, against that background let me say a few words
about the experts. The claimants submissions are most
unfair to Dr Worden. Your Lordship will see those at
{A/1/33}. First of all, it is quite wrong to accuse him
of bias. He is an independent expert whose views are
his own. He is not a mouthpiece for Post Office's case
and the claimants should not be suggesting that he is,
as I see that they appear to do in their submissions.
Secondly, the submissions give the impression that
Dr Worden's analysis is limited to the three admitted
bugs that -- the three bugs that were discussed with
Second Sight and that were then the subject of the
pre-action correspondence and your Lordship gets that
from paragraph 156 of their submissions {A/1/54} where
they say:
"Dr Worden's analysis extrapolates from only three
bugs which happen to be those previously acknowledged by
Post Office. It appears that Post Office had not
disclosed to him the existence of other bugs, which he
could not have taken into account."
My Lord, that is an unfair and incorrect account of
the evidence that's given by -- or will be given by
Dr Worden.
If your Lordship would go to Dr Worden's first
report, annex D -- and, my Lord, it starts at
{D3/2/95} -- your Lordship will see a very lengthy
appendix which describes itself as containing:
"... some tables of KELs which are referred to in
the report. The tables are:
"First a sample of 30 randomly selected KELs
(selection of every 100th KEL in alphabetically sorted
list), with commentary on the robustness countermeasures
which acted in the case of each KEL, as well as its
potential financial impact."
Then secondly:
"62 KELs mentioned in Mr Coyne's report, for which
I have also analysed which robustness countermeasures
applied and analysed the possible impact on branch
accounts."
Third:
"A further sample of 50 randomly selected KELs (also
every 100th KEL in an alphabetically sorted list) which
I have analysed for possible financial impact, but
I have not tabulated my analysis for robustness
countermeasures."
And fourth:
"A sample of 50 KELs which each include the symbol
'£' in their text - because in my opinion, this makes
them more likely to be concerned with possible financial
impact on branch accounts."
So your Lordship will see that Dr Worden was not
simply looking at the three admitted bugs and then
performing all sorts of mind games on the basis of those
bugs, nor did he overlook and ignore the Dalmellington
bug which Mr Green addressed your Lordship on this
morning; he looked at all of them. He looked at more
than just the bugs that were identified by Mr Coyne, he
took random selections and he tried to use a form of
searching which would disclose bugs that were more
likely to have a financial impact on branch accounts.
So, my Lord, that's a first point I should make to
your Lordship. It would be quite wrong to proceed, as
I apprehend my learned friend would have you proceed, on
the basis that Mr Coyne has done an in-depth analysis of
the problems in Horizon, whereas Dr Worden has just
looked at some pretty pictures about three admitted
bugs. That isn't what Dr Worden did at all.
My Lord, the second point I should note is that in
his second report Dr Worden increased the number of KELs
and PEAKs that -- I should say he looked at the
associated PEAKs as well, he didn't just look at KELs --
he increased the number of samples that he reviewed to
200.
And thirdly I need to make it clear to your Lordship
that the review that he conducted was thorough, we say
much more thorough than Mr Coyne's review. What
Mr Coyne intended to do -- this will be obviously
investigated with the witnesses -- is Mr Coyne tended to
find phrases in particular documents that indicated
a problem and he would stop there. He didn't,
for example, seek to ascertain in JC1, in his first
report, he didn't seek to ascertain whether any
particular bugs would actually have a branch effect at
all. That's not the exercise that he did. What he did
in his first report was just find as many problems as he
could. But what Dr Worden did was he considered both
potential branch impact and he considered the operation
of the countermeasures in practice.
Your Lordship will apprehend that Dr Worden is
criticised for engaging in some kind of armchair
analysis of countermeasures on the basis of design
aspirations. My Lord, that characterisation is quite
unfair, we would say. But more importantly what
Dr Worden did is that he looked at the operation of the
system, the PEAKs and the KELs relating to particular
problems, and he looked to see how the countermeasures
he had identified he had seen built into the system, how
those countermeasures worked in any particular case.
My Lord, that's an important function to perform if one
is engaged in the process of seeking to obtain
a balanced view of the robustness or otherwise of an IT
system and it is important to note that it is not
something that Mr Coyne did at all, certainly not in his
first report. Even in his second report he goes no
further than saying "Well, there are some bugs which
were missed by the countermeasures." Well, my Lord, so
there are, of course there are going to be bugs that get
missed by all countermeasures. It is not suggested that
it is impossible for bugs to arise which have a lasting
impact on branch accounts. The critical question is how
likely it is that such bugs will lurk in the system and
be undetected in the way that the claimants would have
you find.
It is in that respect worth noting that Dr Worden
found more bugs with non-transient branch impacts than
Mr Coyne did in his report and your Lordship will see
that from our opening submissions at paragraph 219.3 and
for your Lordship's note the reference is {A/2/76}.
Your Lordship will be aware that of the 29 bugs that
are now listed in JS2, Dr Worden thinks there is
evidence to suggest there may be up to 12 bugs that had
a non-transient financial effect on branch accounts. Of
those 12 it is worth noting that Dr Worden identified
five of them.
So this is not a case, my Lord, where some kind of
blindfold -- the picture that my learned friend seeks to
paint of the process that Post Office went through and
the process that Dr Worden undertook in arriving at his
report was one in which he was blindfolded by
Post Office and somehow stumbled into providing
a positive report which just considered the three bugs
that Post Office had already identified. My Lord,
that's simply a travesty of the true facts.
On the basis of the documents he reviewed, Dr Worden
took a balanced view of the design of Horizon and its
countermeasures and of the operation in practice of its
countermeasures as evidenced by PEAKs and KELs and
associated documents. My Lord, and he also took
a balanced view of the service history of Horizon, the
support function provided by Fujitsu and its efficiency.
Now, that will be a battleground in the rest of this
trial, I know, but even the documents that your Lordship
saw this morning with the Dalmellington bug,
your Lordship will see the rigour that's applied.
There's concern that postmasters aren't given advice
that might be incorrect. The rigour associated with
that process and the determination of Fujitsu and the
other people involved, the other stakeholders, to get to
the bottom of what happened is quite striking in my
submission.
In relation to the Dalmellington bug they did get to
the bottom of what had happened. They identified 112
potential branches with financial impact, 108 of which
had been fixed or made good. Of the other four only two
had a significant problem and, my Lord, of those two
further research showed that those two branches were not
actually affected by the Dalmellington bug at all, they
just had similar symptoms that were the result of an
entirely separate cause and that were fixed entirely
separately and my learned friend gave you I think the
reference to the document which shows that.
So by January 2016 the Dalmellington bug had been
fully investigated and it was quite clear what the
results of that bug were and my learned friend seeks to
suggest that there was more investigation to be done and
that Post Office somehow stopped that further
investigation being done. That's not right at all.
By January 2016 Dalmellington had been fully analysed
and its consequences bottomed out and my learned friends
took your Lordship to a number of emails from
Post Office, they were from July 2016, six months later.
So, my Lord, Dr Worden's conclusion is that Horizon
is well designed and well supported by a team of people
who have been working on it from the start and who are
very thorough when investigating possible bugs and
your Lordship will I'm sure bear in mind Mr Parker's
witness statement where he says that they would keep
going until they spotted the problem. My Lord, that's
Mr Parker's second witness statement at paragraphs 20 to
23 and for the transcript it is at {E2/12/7}.
Now, contrast the work that Dr Worden did with the
work that Mr Coyne did. In the first joint report
before the experts even did their work on -- produced
their reports, he said that he was going to look for
bugs. And the reference is {D1/1/3-4}. Now, of course
both parties were looking for bugs, but Dr Worden, as
I say, found more branch-affecting bugs than Mr Coyne
did with lasting effects. But, my Lord, Dr Worden tried
to do more than that. He tried to take a balanced view
of how Horizon operated in practice and how well its
countermeasures operated in fact and that is something
that Mr Coyne didn't do and as a result it shows a want
of quality of his analysis, we would submit.
Now, let's look at the bugs in issue. Could I ask
your Lordship to go to bundle {D1/2/3} which is the
joint statement, the second joint statement. If we
could pick it up at page 3, my Lord. Now, it is a long
table. It looks as if the experts are moving away from
each other, but in fact it's a very useful list. This
represents the first opportunity the experts have had to
identify where they agree and where they disagree on
these bugs and to explain what they say about them. I'm
not sure how we would have managed if a document like
this hadn't been produced.
It is worth bearing in mind how we arrived at this
list of 29. Your Lordship will see the heading "Table
of bugs/errors/defects with acknowledged or disagreed
evidence of financial impact". Mr Coyne's first report
didn't specifically look at branch-affecting bugs. His
report was more a catalogue of bugs of all sorts and all
shapes and sizes. It was a scattergun analysis. A few
of the bugs that he identified at great length were
branch-affecting.
Now, it was Dr Worden who looked for
branch-affecting bugs and in his first report he noted
what Mr Coyne had done and what he had not done. The
result was that Mr Coyne responded in his second report,
which starts at {D2/4/1} and in his second report -- and
my learned friend took you to it this morning -- at
paragraph 3.21 of that report he set out a table
consisting of 22 bugs, of which 21 were said to be
branch-affecting and, my Lord, the reference is
{D2/4/15}.
Several of those bugs had not been seen before, had
not been mentioned before. So in JR2, this was the
first opportunity that Dr Worden had to comment on and
address those bugs and through discussion between the
experts, seven additional bugs were added to the list.
Bugs 23 to 26 are bugs that are referred to in
paragraph 742 of Dr Worden's first report, the reference
to which is {D3/1/170} and these are identified as
potentially branch-affecting bugs and those were added,
they were not already part of Mr Coyne's 22 bugs.
Bugs 27 to 29 were added as a result of discussions
between the experts.
So if we look at the heading of the table, bugs with
acknowledged or disagreed evidence of lasting financial
impact {D1/2/3}. So I think we are intended to take it
that this is a table consisting of 29 bugs which
Mr Coyne says all have financial impact.
It is acknowledged that there is evidence in 12
cases for lasting financial impact and the ones where
they are acknowledged, my Lord, just for your note, it
is bug 1, which is a receipts and payments mismatch and
your Lordship will see from Dr Worden's comments that
a subpostmaster report wasn't necessary for that bug.
Bug number 2, that's the Callendar Square bug. Bug
number 3, that's the Suspense Account bug. And,
my Lord, not Dalmellington because that would have been
picked up as a normal remming reconciliation as night
follows day.
By the way, contrary to the suggestion that the
claimants at points make in their submissions, Dr Worden
did analyse that bug in his first report.
Next is bug number 10 which is a Data Tree build bug
which occurred very early in 1999, right at the
beginning of Horizon. It was very noticeable, says
Dr Worden, and very quickly fixed.
Bug number 13, "Withdrawn stock discrepancies" and
it may be worth noting that Dr Worden's opinion that it
wouldn't have lasted very long.
Bug number 14, bureau discrepancies. Bug number 18,
concurrent log-ins. Again that's a very early one in
1999, 1999/2000. Bug number 23, bureau de change. Bug
number 24, wrong branch customer change. Bug number 25,
like a top-up. Bug number 27, TPS. And bug number 28,
drop and go.
My Lord, it is worth noting that there is a link to
JR2. I would invite your Lordship to look at that link
in due course. It is a link in which Dr Worden includes
an assessment of the financial impact of those 12 bugs
with his own base estimate and then a more generous,
a more conservative estimate -- he describes it as
conservative anyway -- favouring the claimants.
In fact could we look at that. It is the link to
JR2 which is {D1/2/1}. It might not be possible,
perhaps not. Your Lordship can do it on Magnum anyway,
your Lordship will see there is a link --
MR JUSTICE FRASER: Is that the one-page document?
MR DE GARR ROBINSON: It is two pages.
MR JUSTICE FRASER: Is it? I thought it was one page.
MR DE GARR ROBINSON: My Magnum seems to be disappeared. In
any event --
MR JUSTICE FRASER: The mean impact spreadsheet?
MR DE GARR ROBINSON: Yes and then there is a second page
which is his comments on it. So if your Lordship looks
at the comments he says:
"This is an estimate of the mean financial impact on
all branches across the Post Office network ..."
MR JUSTICE FRASER: The link is just coming up with the
spreadsheet.
MR DE GARR ROBINSON: I see. There should be a second tab
to the spreadsheet. Is that not there?
MR JUSTICE FRASER: I'm not sure that's loaded on, because
I did have a look for this. I have seen this and
I haven't seen any text that goes with it.
MR DE GARR ROBINSON: I downloaded it from Magnum yesterday
but it may be that it hadn't quite got --
MR GREEN: There is an "Explanation" tab, if you mean the
one on there.
MR JUSTICE FRASER: I see. You can't see it at the bottom
of the screen.
MR DE GARR ROBINSON: I see. Does it go on forever?
MR GREEN: No, the "Explanation" tab.
MR JUSTICE FRASER: I've got it now. Is that the one -- it
has 13 cells with text in and the first says "This is an
estimate".
MR DE GARR ROBINSON: Yes. Can one click on the explanation
of calculations on the second sheet?
MR JUSTICE FRASER: I think on Magnum the tab has dropped
off the bottom of the common screen but there is
a second page -- well, I've got mine up anyway,
Mr De Garr Robinson.
MR DE GARR ROBINSON: I'm very grateful to your Lordship.
Your Lordship will see the first paragraph Dr Worden
explains that he has estimated the mean financial impact
and he has given his central estimate in relation to 12
bugs. Second paragraph he says:
"For each of these bugs the table contains a very
approximate estimate of the financial impact of the bug
if that impact had not been corrected by Post Office in
some way ..."
And your Lordship will appreciate I say that's a big
"if":
"... and my estimate of the probability that any
financial impact would have been corrected. My central
estimate of impact on the SPM reflects that probability
whereas my conservative estimate does not."
Then he says:
"As can be seen from the table, my opinion is that
the larger financial impacts would have been corrected
with high probability. Smaller financial impacts might
not have been corrected."
If your Lordship goes back to the table
your Lordship will see there is a column -- the 12 bugs
are identified that I have listed to your Lordship with
the associated KELs where there is one. There's an
estimate of financial impact column. Then there's
a probability that the postmaster was compensated column
and then there's Dr Worden's estimate of loss to
postmasters and then on the final column there's a loss
to postmasters assuming that none of them were made good
during reconciliation or other processes. So
your Lordship sees --
MR JUSTICE FRASER: When you say "made good" though I think
you need to be clear what you mean because "made good"
has a technical meaning in terms of the accounting.
I think you mean remedied.
MR DE GARR ROBINSON: I mean where there is a financial
discrepancy caused in the accounts that discrepancy is
corrected by some kind of financial transaction.
MR JUSTICE FRASER: Yes. Because making good under the
accounting system meant the SPM paying it in.
MR DE GARR ROBINSON: I'm so sorry. You are ahead of me.
MR JUSTICE FRASER: That's why I'm just checking.
MR DE GARR ROBINSON: It is the common issues trial
nomenclature that I have to be careful of.
MR JUSTICE FRASER: But that's what you meant when you
explained how you did just then. I understand.
MR DE GARR ROBINSON: Yes.
Your Lordship will see that Dr Worden's previous
estimate had been £1,000. He increased that to £2,029.
That's per SPM. But in the other column your Lordship
will see "Total impact" of all these bugs was £165,000,
mean impact per SPM who was affected, £13,800 and that
compared with his previous estimate of £6,000. So the
figures have gone up a bit and as he explains in his
commentary it is mainly because of the Data Tree build
bug, the 1999 bug, of £105,000.
Your Lordship will see it is those sort of figures
that then lead one to the calculation I explained to
your Lordship before which leads one to a requirement of
tens of thousands of these bugs in order to have any
hope of being responsible for even a relatively small
portion of the £18.7 million claims made by the
claimants.
So that's the agreed bugs.
As regards the disagreed bugs, a number of short
observations that I would like to advance to
your Lordship.
First of all, Mr Coyne refers to bugs where there
was no bug at all in the PEAK he has cited. This is
something we will explore with him. For example, bug
number 17 relates to branch customer discrepancies in
Legacy Horizon. This was not caused by a bug in
Horizon. The system crashed part way through
a transaction for an unknown reason and then it was
successfully detected and the missing transaction was
recovered. I explained to your Lordship before how the
recovery system works to identify transactions that may
have been missed. That's not an example of a bug,
that's an example of Horizon working. And it is worth
noting, my Lord, that this issue was spotted not as
a result of any human intervention by a subpostmaster,
it was spotted as a result of an automated report that
was available to Fujitsu.
My Lord, secondly, Mr Coyne includes bugs, we say,
which were only found in testing and didn't make it into
the live system. An example of that is bug number 21,
dealing with transaction corrections issues. He makes
a reference to one particular bug referring to a PEAK at
{F/314/1}.
The important point to note about this bug is that
it was eradicated before the relevant software even
reached the live system. It was spotted in testing.
That's what testing is for.
My Lord, a third point observation to make is that
Mr Coyne includes bugs which have automatic fixes which
Mr Coyne himself acknowledges. I have referred to
remming in my opening already. Just one example would
be bug 5. It was a remming in issue. Mr Coyne's own
analysis correctly records that this could cause
a duplicate pouch of cash to be remmed in by the user
causing a shortfall, but what he doesn't say is that
Post Office's reconciliation processes check the pouches
sent out by Post Office and pouches received by the
relevant branches, an automatic report is run which
defects all sort of remittance discrepancies whether
caused by user error, bugs or otherwise and then
transaction corrections are generated to correct the
problem. So it may be a bug, but, my Lord, it's a bug
which in the ordinary course of things is almost never,
if ever, going to result in a lasting loss to any
subpostmaster.
Finally, there are some bugs which both experts
agree had no financial impact, or at least one bug.
My Lord, that's bug 21. So perhaps the heading to the
table in the joint statement should be corrected. It's
not 29 bugs that are said to have financial impact, it
is 28.
But whether it is 12 or 28, my Lord, does not
matter. In a system handling the volumes of transaction
that Horizon handled, which was used by the number of
branches that used it, over a period of 20 years, bugs
of this number and scale can have no material impact on
the overall robustness of Horizon, or putting the point
more pertinently, the chances of one of these bugs
affecting a given set of accounts is vanishingly small.
Even if you sum them all up, the chances of any one of
these bugs affecting a given set of accounts is
vanishingly small.
So what are we left with? We are left with
a suggestion that it is possible that there are other
undetected bugs in the system which may have an effect
on branch accounts but, my Lord, as I have said
possibility is not the same as probability. Mr Coyne
does not say anything about probability. He makes no --
in fact he disclaims any ability to make any inferences
about how many bugs there are, what their scale is
likely to be and what their impact is likely to be.
Now, in my respectful submission that is the
approach which is not helpful. Mr Green and Mr Coyne
describe it, in my submission rather curiously, as
a bottom-up approach. It might be more accurate to
refer to it as a bottom-down approach. Mr Coyne stays
at the bottom, sticks just with the bugs that he has
found and says nothing more, nothing about the
implications of those bugs on the overall robustness of
the Horizon system. He refuses to say anything on that
question, so we are left with his agreement that the
Horizon system is robust.
So he doesn't grapple with the critical question
whether the court should infer or presume that the
shortfall is shown in any given branch accounts was
caused by a bug, my Lord, and it is not a realistic
approach either. My Lord, it is common ground that if
you have a bug it may well have a range of impacts, some
may be smaller, some may be larger, some may affect more
than one branch, but in the scheme of things where you
have a bug which has different effects on different
people, one has to ask oneself what are the chances of
that bug evading any detection by anyone as a result of
any of its impacts at any time? That's always going to
be relatively low. And if one were to postulate a tiny
bug which had an impact of a few pence, my Lord, there
would need to be millions of those bugs in order to
begin to be significant, to have a significant bearing
on the robustness of Horizon.
In the real world we are concerned with bigger bugs,
with a wider range of impacts, such as the
Suspense Account bug and I ask forensically or
rhetorically: how likely is it that there are tens and
tens of thousands of such bugs lurking in the system,
escaping detection for year after year? In my
submission the answer is obvious.
My Lord, before -- I perhaps have a few minutes just
to address one point that has a bearing on robustness
before moving on. Your Lordship will see both in the
claimants' submissions and in Mr Coyne's report
frequently repeated assertions that Post Office operated
in accordance with the cost-benefit analysis. I think
the impression is sought to be achieved that because
Post Office addressed some problems by adopting
a cost-benefit analysis, this means that the procedures
in place for dealing with or identifying bugs and fixing
them and so on were not robust, that there was some kind
of threat to the system because Post Office was cutting
corners or something like that. But, my Lord, one needs
to be careful with the evidence that is cited in support
of these claims. Many of the claims of this sort rely
on two or three pieces of paper, no more than that.
It is worth looking at one example of the evidence
that's relied on in this case. My Lord, it is the claim
in paragraph 144.1 of the claimants' submissions
{A/1/50}. I don't know if your Lordship has a hard copy
of it there.
MR JUSTICE FRASER: I do.
MR DE GARR ROBINSON: Your Lordship will see the claim made
in 144.1:
"It has been identified that known issues/bugs were
often deferred and dealt with on a cost-benefit basis."
So your Lordship will see the point and
your Lordship will see exactly what they are trying to
make of the point.
Footnote 105 refers to a paragraph in Mr Coyne's
first report, paragraph 5.161. That paragraph refers to
a document which is at {F/11/40}. This is minutes of
a risk and compliance committee on 16 September 2013 and
your Lordship will see the attendees. If I could ask
your Lordship to go forward --
MR JUSTICE FRASER: Were any of those attendees legally
qualified?
MR DE GARR ROBINSON: I'm so sorry?
MR JUSTICE FRASER: Are any of those attendees legally
qualified?
MR DE GARR ROBINSON: My Lord, I'm not in a position to
answer that question.
MR JUSTICE FRASER: Maybe you could just find out because
that might affect what I do in terms of ordering
a review of the redactions, that's all.
MR DE GARR ROBINSON: My Lord, I should tell your Lordship
that questions have been raised about redactions and
a further review has been undertaken by my instructing
solicitors and also by junior counsel --
MR JUSTICE FRASER: It has been done already, has it?
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: All right. I assume the result of that
review was that they were properly redacted?
MR DE GARR ROBINSON: The result of the review is that there
are a relatively small number of cases where a different
judgment call has been made, usually where one can see
why a different decision was made, but in the main the
redactions have remained.
My Lord, I can tell your Lordship that
Susan Crichton was general counsel.
MR JUSTICE FRASER: Susan Crichton.
MR DE GARR ROBINSON: Who is the first attendee. In fact
the chair.
MR JUSTICE FRASER: Can you just -- not now, because I don't
want to know now, but can you just identify for me on
how many separate occasions the review led to disclosure
being made where they had previously been redacted,
following the review you have just told me about. Not
now.
MR DE GARR ROBINSON: I will find out.
If we could go forward to page 3 {F/1140/3} the
document says:
"It was reported that following the recent Ernst &
Young external audit four risks [have] been identified.
Three of the risks raised had been addressed, however
the final risk, relating to the communication by Fujitsu
of changes made to the Horizon system, was still
outstanding.
"It was identified that it would cost over
£1 million to implement the mitigation being suggested
by the audit and that this was not proportionate to the
risk being managed."
And the decision made was that:
"The committee agreed that the risk be accepted with
Dave Hulbert as the owner and Lesley Sewell being
ultimately responsible."
My Lord, this is evidence that is asserted by
Mr Coyne and adopted by the claimants as evidence that
known issues/bugs were often deferred and dealt with on
a cost-benefit basis. So you will see how high the
claim is put, but it is worth looking at the Ernst &
Young report that's referred to. My Lord, that's at
bundle {F/1127}, or rather a committee meeting which
considers the Ernst & Young recommendations. This is
a risk and compliance committee meeting relating to the
acceptance of risk following Ernst & Young audit of
2012/2013. "Purpose":
"The purpose of this paper is to:
"Update the risk and compliance committee to a risk
that IT&C have 'accepted' following the 2012/13 Ernst &
Young IT audit.
"Background.
"2.1. The 2012/13 Ernst & Young IT audit found no
significant exceptions but did identify a small number
of improvement opportunities. Four high level
improvement opportunities were recorded. Three have
progressed and are either complete or in the process of
completing. For one, IT&C believe we have sufficient
process and mitigation in place to accept this risk.
This paper is to highlight this decision to the Risk &
Compliance Committee."
And paragraph 2.2 reads:
"The specific observation was with regard to change
management monitoring control. The actual observation
read 'management should make use of a system-generated
list of changes in performing the monitoring control to
further enhance its effectiveness'."
2.3:
"The risk being that changes may be made to the
system that are not approved and not found through
monitoring."
So it's a process suggestion, my Lord, it's not
something that has any bearing on the quality of any
changes to the system.
3:
"The Post Office service management team currently
monitor IT system changes on a monthly basis by
cross-referencing known and approved changes against
a list produced by Fujitsu. E&Y observed that this
could be enhanced if the list was generated by the IT
system rather than by change records.
"IT service management engaged with Fujitsu to
understand how this could be achieved and it was
concluded a very difficult and potentially expensive
approach to adopt this as all changes are recorded as
'events' within the IT system of which there are
multiple thousands per day with changes only being
a small percentage. The cost and difficulty in
extracting these specific change events on a regular
basis would outweigh the value in monitoring the
change."
So the options considered were:
"1. Continue with the existing approach of using
a list generated by the change records."
Or:
"2. Develop an approach with Fujitsu to generate
a list from the IT system of events."
And then over the page, my Lord {F/1127/2} the
proposal at paragraph 5:
"To continue with the existing process of monitoring
but to additionally raise this as a risk within IT&C and
to monitor any exceptions found through the existing
process. If exceptions are found then reconsider the
proposal from E&Y and assess the impact of the change
versus the benefit."
And, my Lord, if we then go down to paragraph 7 "Key
risks/mitigation":
"There is a risk that some changes may not be
monitored using the existing process. In mitigation of
this, the current process has never uncovered any
changes that have not been monitored and that is
supported by the annual IT audits by Ernst & Young."
So, my Lord, that's the decision. That explains
what the proposal was, how carefully it was considered
and what the conclusion was. That is not evidence for
the proposition that when a bug arises, quite often what
Post Office and Fujitsu would do was do nothing because
it costs them money. Your Lordship will bear in mind
Mr Parker's witness evidence in which he said that bugs
with a branch impact were always treated as high
priority.
So, my Lord, obviously I have not made my case just
simply by referring to one document, but I would invite
your Lordship to be cautious when dealing with
submissions of that sort from the claimants and indeed
from Mr Coyne.
MR JUSTICE FRASER: We are probably going to have to have
a break.
MR DE GARR ROBINSON: We are.
MR JUSTICE FRASER: Is now a good time?
MR DE GARR ROBINSON: It is a perfect time, my Lord.
MR JUSTICE FRASER: We will come back in at 25 past and
don't forget at the very end we just have to deal with
that timetable point.
(3.15 pm)
(Short Break)
(3.27 pm)
MR DE GARR ROBINSON: My Lord, having dealt with the
operational issues and robustness I was now going to
move as quickly as I could to remote access. To save
time I'm proposing to take your Lordship to some
relevant paragraphs in our opening submissions and for
that purpose I would invite your Lordship to go please
to paragraph 40 of those submissions, which is at
{A/2/17}. This is a context point. It's a really
really important context point. It's a point that
applies to transaction corrections as well, but for
present purposes I'm making it in relation to remote
access. It is the second order issue that your Lordship
I'm sure will be familiar with now. At paragraph 40 we
say:
"On a number of issues on which Mr Coyne places
considerable emphasis in questioning Horizon's
robustness, Mr Coyne overlooks that they are second
order issues that can only have minimal effect. At best
they represent a very small fraction of a very small
fraction of any cases. Remote access is one such issue.
Transaction corrections are another."
Paragraph 41 reads:
"Taking remote access as an example, the need for
remote intervention affecting branch accounts will
obviously be rare. On any view, the occasions on which
privileged users at Fujitsu have exercised their ability
to remotely inject, edit or delete branch transactions
or accounting entries will represent a tiny percentage
of the relevant transactions/accounting entries. And
the occasions on which they have done so negligently or
dishonestly will, in turn, represent a very small
percentage of those occasions. So, compared with the
volume of business recorded in branch accounts, the
number of cases in which false data will have been
remotely introduced will be extremely small (multiplying
a small chance by a small chance). This is a 'second
order effect' ... which is, by definition, extremely
unlikely to have any significant impact on the
robustness of Horizon."
My Lord, if we take a step back and think again
about the 3 million sets of monthly branch accounts that
have occurred over the last 20 years, I ask rhetorically
how many interventions, insertions, deletions, editing
would one need into branch accounts -- and I emphasise
into branch accounts, not other kinds of remote access,
we're talking about interventions which have an impact
on branch accounts, transactions done in the branch or
stock or cash held at the branch, those kind of things,
how many of those interventions would one need in order
to generate a material risk that any given branch's
accounts are likely to be wrong? You would need
hundreds of thousands because the chances of any
intervention actually being wrong -- all human
intervention is subject to error so there will be an
error rate, or there might be an error rate, but it's
going to be a relatively low error rate on any view, so
one would need hundreds of thousands of those even to
produce the number of interventions that could have even
a small impact on the general body of branch accounts.
The numbers would have to be unimaginably huge for this
to have any material impact on the issues with which
your Lordship will be wrestling in the Horizon issues
trial.
It is hard to overstate the importance of this
point, my Lord. These remote access issues are here
because of concern expressed that Fujitsu -- and we are
only talking about Fujitsu, who are professionals -- was
using its administrator rights in such a way and on such
a scale as to undermine the reliability of the
claimants' branch accounts. And it is vital to
understand, in my submission, that in the real world
this is not going to be an answer to that question, this
is not going to have a bearing on the robustness of the
system and on the reliability of any given branch
accounts in any given month.
So, my Lord, that is a first and in my respectful
submission critical point of context that should always
be borne in mind. There's a sense of unreality. It is
quite understandable, the issues here are quite
eye-catching, my learned friend quite understandably has
developed his submissions as to how the history of this
issue has arisen and how matters have been revealed in
the course of time, one quite understands why he has
done that, but when looking at the history of the case
and when looking at the witnesses and what they say
about remote access it's really important to bear in
mind in my submission that even if the claimants' case
succeeds at its highest, it's never actually going to
have a material impact on the reliability of branch
accounts. That's just not what this activity is about.
MR JUSTICE FRASER: Now, this is the same point I think, is
it not, that where the dispute used to be this couldn't
be done, now the dispute is in theory it can be done but
in practice it never would have been; is that a fair
summary?
MR DE GARR ROBINSON: No, my Lord, I would put it as
follows. If your Lordship would like me to address on
what --
MR JUSTICE FRASER: No, it is just so that I understand
firstly that it's the same point that Mr Green developed
along those lines and secondly if it is the point which
I accurately understand the way you are putting it, it
is that Fujitsu did have the ability to do that but in
practice never would.
MR DE GARR ROBINSON: No, my Lord, I'm going to take you to
this in a few minutes, but let me -- first of all one
has to distinguish between Legacy Horizon and
Horizon Online.
MR JUSTICE FRASER: Correct.
MR DE GARR ROBINSON: Horizon Online, there has been one
occasion when a transaction was inserted into one
branch's accounts at the BRDB, one occasion, and
my learned friend wants it to be more, so does Mr Coyne
and there will be evidence given on that question.
In relation to Legacy Horizon it is different.
There's a complication because whereas with
Horizon Online access was made to a central database, or
server I should say; with Legacy Horizon the data in the
first instance was maintained on server's held at the
branch, or what were called counters. So there there
was an element -- there was a greater complication
because counters held data and counters could go wrong
and they would need backups. Transactions could
sometimes be inserted into branch accounts when there
had been problems. It's a very different process from
the position in relation to Horizon Online and I'm not
seeking to give you a full account of Legacy Horizon,
that's in the evidence and I don't want to be taken to
be summarising it.
There were transactions insertions made into
counters on occasion. There were also occasions when
counters broke and their data had to be basically backed
up from another source. It was called replicating from
another source. And there were variants of those two
processes. My Lord, those were occasions therefore when
it could be said that what we mean by remote access took
place.
So I don't say remote access never took place but
what I say is, take the claimants' case at its highest,
how many occasions of remote access of that sort in
Legacy Horizon would there have to be in order to
generate a material risk to the reliability of any given
set of branch accounts?
MR JUSTICE FRASER: I understand that point and I understand
that's your case and in a way that is central to the
different way in which the two parties are approaching
it and I'm not in any way suggesting that one of those
ways is preferred at the moment. All I was doing was
seeking to establish -- all it comes down to really,
Mr De Garr Robinson, is are you and Mr Green using the
term, or using your broad categorisation in the same
way, that's all.
MR DE GARR ROBINSON: No we're not and that's one of the
difficulties.
MR JUSTICE FRASER: That then brings me on to my next point.
You don't appear to be using the terms in the same way.
MR DE GARR ROBINSON: That is one of the problems.
My learned friend -- and I think Mr Coyne also -- adopts
a construction of the phrase "remote access" which is
unimaginably wide. It includes, for example,
transaction corrections, because transaction corrections
are a process by which Post Office presses a button in
some office somewhere and something pops up on the
screen and then a postmaster has to decide whether or
not to allow that change, which is specifically notified
to the postmaster to allow that change into his or her
accounts. My learned friend treats that as an example
of remote access. That's not how I understand it at all
and indeed it is not how I understand the pleadings.
But it shows your Lordship the width of -- I would say
the lack of utility of the definition that he is seeking
to propose.
I on the other hand have a more practical approach
which is what's this question about? It's about whether
or not people remotely could make changes to branch data
such that their branch accounts would be wrong. There
are all sorts of things that could be done remotely that
would have no impact on branch accounts. You might have
a counter for example in Legacy Horizon that was locked,
there was a binary bit that was on a zero instead of a 1
and it needed to be turned to a 1. There was a process
by which Fujitsu could unlock the locked counters,
locked items of that sort. That had no conceivable
impact on branch accounts. Now, one could call that
remote access if one wanted to, but it's not a relevant
form of remote access.
When I talk about remote access I'm talking about
action taken remotely to either inject new transactions
or to edit existing transactions or to delete existing
transactions in a way that could change the accounting
position of the relevant branch.
MR JUSTICE FRASER: And by Fujitsu only? Because I think
you started this passage by saying only Fujitsu.
MR DE GARR ROBINSON: Yes, only Fujitsu.
MR JUSTICE FRASER: That's very helpful because that defines
for me the way you are using the term.
MR DE GARR ROBINSON: I'm grateful.
MR JUSTICE FRASER: All right, thank you very much.
MR DE GARR ROBINSON: So your Lordship has the second order
issue.
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: As I say, in my submission it
overwhelms everything else. It makes the next
40 minutes really rather -- I don't want to say
irrelevant, that's disrespectful, but of marginal
importance.
My Lord, further points of context I would ask
your Lordship to note. If I could move on in the
submissions to page 83, paragraph 243 {A/2/83},
paragraph 243, headline point, my Lord, irrelevance of
or immateriality -- is that a word, I'm not sure -- of
the suggestion of some master criminal sitting in
Fujitsu's offices manipulating branch data for his
personal benefit:
"Although claimants will probably draw attention to
a dramatic, but only theoretical, possibility of the
malicious alteration of transaction data by a rogue
employee of Fujitsu, there's no evidence that this ever
took place, nor any allegation to that effect. It is
unlikely to assist the court for the parties to engage
in speculation as to what might have happened, in
theory, if there had been some rogue employee who had
abused his or her access rights. If there is any
reason, in a specific case, to think that it might have
happened, that can of course be explored ... but there
is no generic issue as to any malicious alteration of
transaction data."
So again this is a real world point, my Lord.
Your Lordship will see speculation -- well, a discussion
in Mr Roll's witness statements about speculation as to
whether it might be possible to pay a gas bill or make
a bank transfer using the transaction insertion facility
that was available in Legacy Horizon, but that is all it
is, it's just a theoretical possibility that need not
detain the court for five minutes.
And in paragraph 244 we continue:
"The real thrust of claimants' case is that, in the
course of using their abilities to insert, edit or
delete data to correct problems arising in the operation
of Horizon, Fujitsu personnel might accidently have
introduced a further or different error into transaction
data. This is a clear example of what Dr Worden calls
a second order issue ..."
And I have addressed your Lordship on that. As we
say at the end of that paragraph:
"Such second order issues are, for this reason
alone, not viable candidates to explain any significant
proportion of disputed shortfalls."
So having got rid of the master criminal theory and
having made it clear of how peripheral this issue really
is, let's then move on to the position and let's move on
to paragraph 246 {A/2/83}:
"... the picture is complex. There are different
Fujitsu methods for altering different kinds of data
remotely, and Fujitsu's current methods are themselves
different from the tools and methods that are available
under Legacy Horizon. The Fujitsu witnesses have done
their best to recollect, investigate and to some extent
hypothesise as to what may have been possible in the
fairly distant past.
"The picture is also complicated by the fact that
the parties do not agree on what counts as remote
alteration of data."
My Lord, this addresses the question your Lordship
has just asked.
For example, Mr Coyne includes transaction
corrections. Curiously, my Lord, it is worth noting
that although Mr Coyne includes transaction corrections
as a form of remote access, he excludes the predecessor
that applied until 2005, namely error notices. So error
notices weren't, TCs were and the reason he gives for
that is because TCs are electronic, that they were
communicated to the branch through the system rather
than being sent by post. This to him is a major
difference. I say it is a distinction without
a difference.
Then, my Lord, paragraph 248, another red herring to
do with global users. I say red herring, that's perhaps
unfair to my learned friend. There is an issue between
the parties as to whether global user rights could be
exercised outside the branch. It is quite clear that
there were some people who did have the privileges
needed to go into a branch and make changes to the
branch, to use the branch machines if that's what they
wanted to do. That's common ground. There's an issue
as to whether it was possible to use those rights
remotely, go to somewhere else from some kind of central
office at Fujitsu and use your global user rights to
make changes to the branch. My Lord, Fujitsu's evidence
is that that is not possible, but it is challenged by
Mr Coyne and the claimants, so that's an issue that
your Lordship will have to decide.
Then, my Lord, another important contextual point is
in paragraph 249 {A/2/84}. There are complications of
terminology and this is to do with different kinds of
data:
"Mr Coyne discusses the deletion of session data and
the deletion of transaction data as though these were in
essence the same thing. That is misleading. Horizon
holds more than just transaction data; it stores and
tracks a lot of other forms of data that are needed to
make the system operate properly, including data that
does not relate to customer transaction and which does
not affect a branch's accounting position. Session data
is a good example of this: it may well not include
transaction data at all; it can consist entirely of
other types of data associated with a counter session
(such as the data 'flag' that determines whether a stock
unit is locked or unlocked and available for use). The
deletion of data of that kind does not affect branch
accounts and cannot create a discrepancy. It merely
affects the availability of the system to a [postmaster]
or an assistant wishing to perform transactions or
conduct other branch business."
So again it is very important to be clear about what
kind of data we are talking about, when we are talking
about editing, deleting or inserting data, what kind of
data are we talking about, because there are all sorts
of irrelevant data the ability to change which is
utterly benign and indeed is important, an important
part of the system and the system wouldn't work without
it. So that's an important distinction as well.
Having made those contextual points clear, my Lord,
let me just say a very few things. Most of these points
will be clear to you already.
First of all, we are not really concerned about the
reading of data, we are concerned about the addition,
editing or deletion of data, obviously.
Secondly, the position is very different now from
what it was when Legacy Horizon was in operation about
nine or ten years ago. Horizon Online's data, all the
data is written directly to the BRDB, the central
databases maintained I think at Fujitsu's offices, but
with Legacy Horizon data was held on counters before
being downloaded to the central data services, I think
as I recall, at the end of the day. So where remote
access is concerned it was possible that access could be
obtained to counters until 2010, but it's different now.
It's important to understand that.
MR JUSTICE FRASER: Well, I can understand why you make that
submission and it is important, but I have to consider
Legacy Horizon and Horizon Online.
MR DE GARR ROBINSON: Oh, of course. I'm not suggesting any
different.
Thirdly, I should mention the way in which the
evidence has developed in relation to Legacy Horizon.
I will be absolutely frank with your Lordship, I wish it
hadn't developed in quite the way that it has, but we
are talking about the state of affairs that persisted
during 2000 and 2010, it's a long time ago. The
system -- there is no Legacy Horizon system still in
operation that people can go and check, that people are
still operating. People are working off their
recollections and off design documents that are now very
elderly and that problem has been compounded by the fact
that when Mr Roll made his witness statement in 2016 --
it was provided in September last year -- the things
that he said in that witness statement were quite hard
to follow and we will see how hard they were to follow
when he gives evidence later on this week. The result
is that the responsive evidence by Fujitsu witnesses
wasn't as focused as it should have been and wasn't as
clear as it should have been and wasn't as accurate in
certain respects as one would like it to have been and
I must face up to that completely, but what I do suggest
to your Lordship is that it wouldn't be right to draw
any great inferences as a result of the way in which
this the evidential position has developed.
I make no criticism of Mr Roll for giving his
evidence in the way that he did, he is not being blamed
for this process, it is simply a fact of the matter,
it's simply what happened and it is only right that
your Lordship should be aware of that.
Against that background, my Lord, it may be helpful
to have a summary of what I would include as remote
access in this case and, my Lord, that's in
Mr Godeseth's third witness statement, which is {E2/14}.
I would like to pick it up at page 4 of that witness
statement {E2/14/4}. He says at paragraph 14:
"Having further explained that global users and the
TIP repair tool cannot insert, inject, edit or delete
transaction data remotely, to the best of my knowledge,
the following types of remote access as defined in
paragraph 3 above, are or have been possible:
"14.1. Privileged users could, theoretically,
inject, edit or delete transaction data in
Legacy Horizon ..."
"As far as I am aware", he says, "this has never
happened."
14.2:
"Members of the SSC could inject transaction data
into a branch's accounts in Legacy Horizon."
And then, my Lord, when we are still talking about
Legacy Horizon it may help to jump forward to
paragraph 14.5:
"In Legacy Horizon ..."
And Legacy Horizon alone:
"... Fujitsu could cause data to be rebuilt from
copies of the same data as described ..."
In Mr Parker's second witness statement.
So this is a simplified summary. There are
complications particularly in relation to the rebuilding
of data referred to in 14.5, but your Lordship has
a sense of the three basic categories of remote access
that we say was possible in Legacy Horizon and, my Lord,
as regards remote access in Horizon Online, at
paragraph 14.3:
"Privileged users can, theoretically, inject, edit
or delete transaction data in Horizon Online. As far as
I am aware, this has never happened."
And 14.4:
"Members of the SSC can inject additional
transactions into a branch's accounts in Horizon Online
using a designed piece of functionality called
a balancing transaction (BT). Audit records show that
this has happened once."
So your Lordship will see the scope of the dispute.
It is disputed by the claimants that there's only ever
been one balancing transaction in Horizon Online.
I believe it is not accepted by the claimants that
privileged users didn't use their privilege user rights
to muck about with branch accounts, if I can put it that
way, but I'm not sure about that. I'm not sure what
their positive case is. I think their case may be just
that it was possible, not that it actually happened.
And then in Legacy Horizon it was possible to inject
transactions and that happened more frequently than has
happened with balancing transactions and it is possible
to rebuild data from machines which had problems.
So is that a helpful summary of what I say --
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: I'm grateful.
MR JUSTICE FRASER: Thank you.
MR DE GARR ROBINSON: Now, Mr Roll deals with the
Legacy Horizon position. He worked in third line
support in the software support centre at Fujitsu. In
that capacity he could make transaction insertions and
he could rebuild data. But his evidence is quite
unclear about this, or at least his evidence in his
first witness statement is not very clear and it will
need to be unpicked as to what data he is talking about.
Your Lordship will have seen in paragraph 14 there's
a reference to the TIP repair tool, the transaction
information processing repair tool. My learned friend
addressed your Lordship on that this morning. That's
addressed by Mr Godeseth at paragraph 10. I say it is
a red herring. Paragraph 10 {E2/14/3} he explains how
Mr Coyne is confusing balancing transactions with
exercises of the TIP repair tool and then he explains
why the TIP repair tool doesn't have an impact on branch
accounts:
""The TIP repair tool (which was available in
Legacy Horizon and is available in Horizon Online) is
used on data that has failed validation on the transfer
between the BRDB and the TPS system on Horizon Online
and is therefore quarantined within TPS. I understand
from speaking with colleagues that it served a similar
role in Legacy Horizon in relation to data moving
between the Riposte Message store and the TPS system."
And, my Lord, this is important:
"The TPS system is used to transfer data out of
Horizon and on to other external systems. The TPS
system (in either Horizon Online or Legacy Horizon) does
not hold or generate data that is used to produce
a branch's accounts from a subpostmaster's perspective.
Accordingly, an error or change in TPS data will not
affect a branch's accounting position.
"The TIP repair tool is used where the format or
content of the data output from Horizon is incompatible
with the systems to which it is being delivered. For
example, a system may require that certain data fields
are populated. If these criteria are not met, the
receiving system may reject the data. The TIP repair
tool is used to correct these incorrect or missing
attributes. The correction does not change the core
information about the transaction."
And then there is a reference to a PEAK which shows
mandatory fields were omitted from four messages and the
TIP repair tool was used to insert suitable values:
"These are all time stamps so have no impact on
accounts, but the receiving system expects the fields to
be there. In practice, there are multiple time stamps
in messages, so other, appropriate time stamps would
have been used (which may differ by a few seconds from
the missing one)."
My Lord, here is an important point:
"The changes are made to the data in the TPS system
not in the BRDB (or the Riposte Message store in
Legacy Horizon)."
Your Lordship has already heard submissions about
front of the system and the back-end of the system.
Branch accounts are in the front end of the system, they
are within Horizon, Horizon generates accounts for the
branch. The data that is in the Horizon system then has
to be extracted from the Horizon system into the
back-end systems, so Post Office and Fujitsu -- mainly
Post Office -- so that it can be used by Post Office for
its accounting functions. The most important accounting
system that Post Office currently uses is called POLSAP.
It deals with all its internal financial matters from
paying rent on buildings to salaries and also movements
resulting from Horizon transactions. POLSAP draws data
down from the front end. The important thing is that
the TIP repair tool changes the data that is taken from
Horizon and put into POLSAP, but changing data in POLSAP
would not change anything in the branch accounts. It's
just -- they're just different things. My Lord, the
accounting systems are separate. The only way in which
POLSAP could be used in such a way as to result in
a change to branch accounts would be if Post Office used
POLSAP to decide to issue a transaction correction,
Post Office then issued a transaction correction to the
branch and the postmaster accepted that transaction
correction. That's the only way it could happen.
So it is really important to understand the
fundamental difference between facilities which enable
changes to be made to back-end systems and facilities
which enable changes to be made to branch accounts.
And, my Lord, that is overlooked in the claimants'
submissions. A good example of that is at paragraph 273
and perhaps we could look at that. For the record it is
{A/1/94}. Paragraph 273, my Lord.
MR JUSTICE FRASER: Yes, I've got it on the common screen.
MR DE GARR ROBINSON: "Mr Coyne's view is that the above
tools have the potential to affect transaction data and
potentially branch account data by way of incorrectly
altering the transactions prior to entering the
recipient systems such as POLSAP and external clients
(after processing by the counter). The end result may
be the issuing of a flawed TC by Post Office who may not
be aware of the error."
My Lord, actually the point is well made there and
I apologise because I was suggesting this was
a paragraph which showed that the point wasn't
understood. The point is that when we're talking about
changes to back-end systems like this we're not talking
about second order issues, we're talking about third
order issues. We're talking about a change to the
POLSAP figure as a result of some intervention which is
wrong, which results in a mistake being made by
Post Office in deciding to issue a transaction
correction, which then results in a mistake being made
because the postmaster accepts the transaction and it is
loaded into his accounts.
One is not going to find an answer to the question
whether Horizon is robust by referring to tools which
can affect the data that goes into POLSAP.
My Lord, I note that the claimants and Mr Coyne
place emphasis on what they say is a failure to follow
proper permission controls by Fujitsu and there is
a reliance on an audit recommendation by Ernst & Young
in 2011. That is referred to again and again and again
in Mr Coyne's report and again and again and again in
the claimants' submissions. My learned friend took
your Lordship to it. It's at {F/869} and it is referred
to -- well, it is referred to in many many paragraphs,
but including paragraphs 5.161 and 5.196 in Mr Coyne's
first report, the references to which are {D2/1/97} and
{D2/1/107}. And it is also referred to in paragraph 282
of the claimants' opening submissions, for the
proposition that Fujitsu had weak user management
controls.
My Lord, could we go to that document please. It is
{F/869}. You have already seen it once. My Lord, but
your Lordship hasn't seen the first page, or rather --
if it your Lordship goes to --
MR JUSTICE FRASER: I think you mean the second page.
MR DE GARR ROBINSON: It is the second page {F/869/3}.
Paragraph 1 "Executive summary":
"The finance leadership team at Post Office Limited
has implemented and process improvements throughout the
organisation during the past financial year.
"In particular, focussed management action has
addressed many of the issues raised in our prior year
management letter and led to significant improvement in
the overall payroll control environment. The
recommendations we have made in this report should be
seen as refinements rather than fundamental control
deficiencies in comparison."
My Lord, they are put forward in the evidence as
fundamental control deficiencies. Again this doesn't
win me the case but I do invite your Lordship -- when
your Lordship sees frequent references to documents, it
can sometimes be very beneficial to read the whole
document carefully. My Lord, that's my first submission
about that document.
The second submission I would make about the
document is that although Mr Coyne refers to it several
times and indeed there's a suggestion that Ernst &
Young's recommendations aren't being carried into
effect, he doesn't refer to a later document, Ernst &
Young control themes and observations 2013, which is at
{F/1138}. If I could ask your Lordship to go to page 2
of that document {F/1138/2} and again it is the letter
which introduces this document, second paragraph down:
"As part of our audit of the financial statements,
we obtained an understanding of internal controls
sufficient to plan our audit and determine the nature,
timing and extent of testing performed. Although the
purpose of our audit was to express an opinion on the
financial and not to express an opinion on the
effectiveness of internal control, discover weaknesses,
detect fraud or other irregularities (other than those
which would influence us in forming that opinion) and
should not, therefore, be relied upon to show that no
other weaknesses exist ..."
I'm so sorry, my Lord, I'm actually reading the
wrong text.
MR JUSTICE FRASER: "... to show that no other weaknesses
exist or areas require attention."
In other words we have identified some of them but
don't reply on that as saying there aren't any others.
MR DE GARR ROBINSON: Exactly. If your Lordship goes on to
page 4 {F/1138/4}
MR JUSTICE FRASER: Page 4? "Overview". Is that the one?
MR DE GARR ROBINSON: Third paragraph down:
"Focused management action in the past few years has
addressed many of the issues raised in prior year
management letters. Whilst there continue to be
challenges in areas including POL's IT environment,
management have taken steps to ensure these challenges
are and continue to be addressed."
So, my Lord, what your Lordship gets from a reading
of the documents as a whole that the audit processes
which were regularly undertaken by Ernst & Young of
Fujitsu and of its permission controls and operating
controls, regulations, the picture actually to be
derived from those documents is not that Fujitsu was not
doing the right thing, the picture to be derived was
that Fujitsu was being monitored for proper conduct and
although there could on occasion be improvements, they
were essentially acting in the right direction.
My Lord, unless I can assist your Lordship further,
that summarises my overview of remote access.
MR JUSTICE FRASER: That's very helpful. I have read
everything that I have been asked to -- I haven't read
everything obviously in terms of the database, but
I have read all of the documents that both of the
parties asked me to read, and that's very, very useful,
thank you very much.
MR DE GARR ROBINSON: My Lord, I was going to address
your Lordship -- your Lordship may not want to be
addressed on this -- on two points which I apprehend are
included by way of prejudice. One is on the process of
disclosure that's been followed in this case and the
other is the so-called shadow expert allegation.
I don't know whether your Lordship would feel the need
to hear any submissions about any of those things.
MR JUSTICE FRASER: Well, I would have thought the best
place to do that is probably in closing because actually
at the moment whatever the situation is suggested to be
vis-Ã -vis shadow experts, or so-called shadow experts,
it will become a lot clearer after the
cross-examination, I would have thought, but I'm not
shutting you out from addressing me on it if you want
to.
MR DE GARR ROBINSON: No, my anxiety is to help
your Lordship not to set hares running.
MR JUSTICE FRASER: I would have thought closing.
MR DE GARR ROBINSON: Very well. My Lord, all I would say
about shadow experts is two things. First of all, dark
inferences are drawn as if having an advisor advising
you before you have actually appointed an expert is
something that is somehow untoward or inappropriate.
My Lord, in cases of this scale it is commonplace in my
experience.
MR JUSTICE FRASER: Well, it depends on what they have been
doing, which is why it is probably best left until after
the cross-examination I would have thought.
MR DE GARR ROBINSON: My Lord, that brings me to my second
point. There appears to be if not a suggestion then an
implication sought to be achieved that the technical
advisor has in some way been used in order to shield the
experts and the parties from adverse documents.
My Lord, if that is the suggestion being made, it is
wrong and it should not be made. I can tell
your Lordship that all the documents reviewed by the
advisor were reviewed with a view to ascertaining
whether any of them constituted adverse documents and
any adverse documents that were revealed as a result of
that review have been disclosed and it is important that
your Lordship should not allow yourself to be -- it's so
easy in cases of this kind to be drawn into the sort of
painting of pictures. My learned friend is actually
creating something out of nothing and it is --
MR JUSTICE FRASER: I don't think you need concern yourself
that I am easily drawn into painting pictures.
MR DE GARR ROBINSON: I'm very glad to hear it, my Lord.
So, my Lord, assuming your Lordship doesn't wish to
hear me on disclosure and the procedure that was adopted
and your Lordship has submissions in the annex to our
opening -- written opening submissions, all that remains
is for me to talk about timings, the trial timetable.
MR JUSTICE FRASER: Yes.
Housekeeping
MR DE GARR ROBINSON: Since the PTR I have been giving
anxious thought as to the extent to which I can properly
cross-examine Mr Coyne within the compass of two and
a half days and were I required to do that then I would
do that.
MR JUSTICE FRASER: Of course.
MR DE GARR ROBINSON: It is my view, having thought about it
quite carefully, that it would be very, very difficult
to get it under three days and three and a half days
would be doable but under three would be very hard
indeed, but if your Lordship were to say it should be
two and a half days then it can be done in two and
a half days.
MR JUSTICE FRASER: Mr De Garr Robinson, I will -- and just
for the purpose of everyone in court because obviously
counsel know this but not everybody will. I separately
raised this point of my own volition --
MR DE GARR ROBINSON: You did.
MR JUSTICE FRASER: -- about three weeks ago after I read
the first joint statement which emerged from the meeting
which I think was taking place the very day of the PTR
or possibly a couple of working days later, so the trial
timetable that was set down for the PTR was not chiseled
into granite and I expressly invited this debate on
Day 1.
If you are going to have longer, and on current
understanding of the different expert issues it seems to
me that that's sensible, we just have to grasp the
nettle now about how that's going to impact the second
half of the trial. I mentioned this morning
difficulties in respect of another case on Friday the
5th anyway. It seems to me that the best way forward is
to keep the shape of the first half the same, that the
week commencing 1 April you should be given your four
days to cross-examine Mr Coyne. We then won't sit on
the 5th and on Monday the 8th we will start with
Dr Worden, which if Mr Green wants three days he can
have them, if he wants four days he can have them but
I know he said at the pre-trial review he would only
want three but what's sauce for you is sauce for him,
which means we are going to have to address closings.
Now, I know from time to time I have come across as
somewhat more robust about counsels' availability but
obviously in this case that's slightly different now
because we are starting the trial and this is an
alteration and I know at the pre-trial review Mr Green
had some observations about going into the week after
that and you said this morning that the beginning of the
next term might be a better time for them.
So I'm open to suggestions and debate about that,
but the primary decision is when do we do the evidence
and it seems to me you want your four days and I'm
prepared to give you your four days.
MR DE GARR ROBINSON: Well, my Lord, I certainly want three
to three and a half days.
MR JUSTICE FRASER: All right, if you go three and a half
days what we will do is do a hard start with Mr Coyne on
the Monday morning, because apart from anything else
people need to plan or organise their diaries and it's
bad practice to start an expert just before the weekend
and then he is in purdah and Mr Green can't speak to
him, or vice versa.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: So that's my current thinking.
MR DE GARR ROBINSON: I'm grateful. Shall I discuss it with
Mr Green and then we can come back to your Lordship with
hopefully an agreed approach.
MR JUSTICE FRASER: Mr Green, two things. Longer for
cross-examination, I have made that clear.
MR GREEN: My Lord, I'm anticipating within three days.
MR JUSTICE FRASER: All right, that's fine. You will have
to discuss it with Mr De Garr Robinson about when you
might do your closings.
MR GREEN: Indeed.
MR JUSTICE FRASER: The beginning of the term afterwards at
the moment I'm supposed to be on TCC business but that
can and will be rearranged to fit around you. I think
term starts on 1 May which is a Wednesday, so you could
have 1 and 2 May, or you could have two days the week
after. I think any longer than that it's beginning to
get difficult in terms of the timetable for the whole
year and actually the difficulties in the timetabling
are probably more my difficulties than yours because I'm
the one that has to write the judgment.
So do you want to have a chat about that, about
closings, but for the moment as far as cross-examination
of the experts, Mr Coyne will be called on Monday,
1 April and you, Mr De Garr Robinson, can have as much
of the four days that week up to and including Thursday
the 4th as you want and the same the other way round:
Dr Worden will be called on Monday the 8th and you can
have as much of the three into three and a half days
that week to cross-examine him as you want.
MR GREEN: My Lord, I think the Thursday is Maundy Thursday,
I don't know whether that --
MR JUSTICE FRASER: No, I think that's a week out, isn't it?
I think Maundy Thursday is the following week because
Easter is so late.
MR GREEN: Yes exactly. It is so late.
MR JUSTICE FRASER: So that whole week we don't have any
Easter issues at all that week.
MR GREEN: That's excellent.
MR JUSTICE FRASER: All right? Is that helpful?
MR DE GARR ROBINSON: My Lord, it is extremely helpful,
thank you.
MR JUSTICE FRASER: Couple of other admin points. I have
obviously been working on hard -- well, I have actually
been working on the system but I've got three screens
already and if I bring my laptop down I'm going to end
up with four screens so I would like a file please from
you of your witness statements that actually have the
trial bundle pages printed on them. I don't need the
exhibits. And the same for you, Mr De Garr Robinson,
just a file of your evidence of fact at the moment with
the trial bundle pages printed on them.
Obviously I would like yours for tomorrow morning.
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: Yours can come at some stage during the
week and at some point I would like a hard copy file of
your two experts' reports in the same file, no
appendices, again with the trial bundle pages on them
and the same for your expert as well.
MR DE GARR ROBINSON: Your Lordship may prefer to have the
appendices as well because there is quite a lot of work
done in the appendices of the --
MR JUSTICE FRASER: I've got the appendices -- actually if
you think -- you are right, it is probably sensible to
have those with the trial bundle references on. The
reason I said no appendices was simply to try and reduce
the amount of work you have to do, that's all. Is that
quite clear?
MR GREEN: It is easy to do.
MR JUSTICE FRASER: And obviously the witnesses will need to
have, as they did in the common issues trial, a bundle.
MR GREEN: Indeed.
MR JUSTICE FRASER: And I think there have been some recent
statements, haven't there, just making corrections
et cetera.
MR GREEN: My Lord, yes, there are some small changes.
MR JUSTICE FRASER: So I imagine examination-in-chief will
be quite straightforward.
MR GREEN: Yes.
MR JUSTICE FRASER: Is that everything? Thank you both very
much and tomorrow morning.
MR DE GARR ROBINSON: My Lord, actually having nodded when
your Lordship said "Is that everything" I should mention
that Mr Henderson and Mr Draper will be doing some
cross-examining --
MR JUSTICE FRASER: I had guessed that.
MR DE GARR ROBINSON: So in proper reflection of my real
role in this case I will be allowing them to take pole
position.
MR JUSTICE FRASER: Just so that you know, because I think I
did say this at the beginning of the common issues trial
but I will just say it to you, as far as counsel are
concerned I don't mind where you sit, where they sit.
They can sit up front -- there's actually a practice
direction about this for the Rolls Building
specifically. So please don't think that if you would
rather have Mr Henderson next to you or Mr Draper next
to you all the time, that as junior counsel they have to
sit behind you, because as far as we are concerned we
don't do that. But I anticipated they would be doing
some of the cross-examination and I'm sure that might be
the case for the other side as well.
Is that everything?
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: Thank you all very much. Tomorrow
morning.
(4.15 pm)
(The court adjourned until 10.30 am on Tuesday,
12 March 2019)
INDEX
Housekeeping .........................................1
Opening submissions by MR GREEN ......................8
Opening submissions by MR DE GARR ...................79
ROBINSON
Housekeeping .......................................159
(10.30 am)
MR JUSTICE FRASER: Mr Green.
Housekeeping
MR GREEN: May it please your Lordship. One of the matters
your Lordship was going to deal with first thing today
I think was the question of when the common issues
judgment might formally be handed down and whether the
claimants may have permission in the event that they
receive a draft to disclose the draft to the steering
committee of the claimants.
MR JUSTICE FRASER: Yes. I think Mr Warwick's email said
two members of the steering committee. I don't know how
many people are on the steering committee.
MR GREEN: Yes.
MR JUSTICE FRASER: This is the draft which is currently
embargoed.
MR GREEN: Indeed.
MR JUSTICE FRASER: Right and my position on this is as
follows. I have no difficulty with two members of the
steering committee seeing the draft, subject to
conditions. One is the names of those two people have
to be notified to my clerk in an email and that email
should come from one of the claimants' legal advisors.
It should identify who they are by name and the fact
that they have been specifically told the terms of the
embargo and that to breach the terms is a contempt and
what the possible consequences of the contempt are.
MR GREEN: My Lord, I'm grateful.
MR JUSTICE FRASER: If those three elements are satisfied
then they can be shown the draft --
MR GREEN: I'm most grateful.
MR JUSTICE FRASER: -- under terms of the embargo.
MR GREEN: I'm most grateful, my Lord.
MR JUSTICE FRASER: Now, handing it down, that ball is
rather in your court and when I saw "your" court I mean
the Post Office's court, although I know it is not
Mr De Garr Robinson's side of it.
MR GREEN: Side of it yes.
MR JUSTICE FRASER: I was expecting or had invited typos to
be provided by Wednesday.
MR GREEN: Indeed.
MR JUSTICE FRASER: Depending on the extent and scope of
those I intend to hand the judgment down on Friday, but
if there are an enormous quantity and it was a judgment
that was sent out more in draft than I would ordinarily
hope for, on Thursday morning I might say to you it's
not going to be Friday, it's going to be the beginning
of next week so I can use the weekend just to deal with
the typos.
MR GREEN: Most grateful, my Lord. Would it be possible for
us to deal with any consequential matters the following
Friday rather than this Friday?
MR JUSTICE FRASER: No, you can have longer than that.
MR GREEN: I'm most grateful.
MR JUSTICE FRASER: The important thing on consequential
matters is that when I hand it down I make the order in
the relevant terms for the parties to give them the
necessary extension of time so that time doesn't run.
I don't intend to put the parties in the position that
time is running for the purposes of any consequential
applications during this trial.
MR GREEN: My Lord, I'm most grateful.
MR JUSTICE FRASER: So you don't even necessarily need to
come when it is formally handed down, depending on when
that is.
MR GREEN: I'm most grateful.
MR JUSTICE FRASER: Is that clear? Yes, good.
MR GREEN: My Lord, in terms of use of the time for
claimants' oral opening, what I propose to do -- because
I know your Lordship has obviously had sight of the
expert reports and joint reports already.
MR JUSTICE FRASER: Yes.
MR GREEN: I propose to highlight a few key areas of
agreement at a fairly high level, highlight a few key
areas which we will say at this stage are likely to be
important battle grounds for the trial, highlight the
importance of the difference of approach of the two
experts and the approach we're going to respectfully
invite the court to adopt and then, which we hope will
be useful for the court, take your Lordship through one
worked example of a bug.
MR JUSTICE FRASER: One worked example of ..?
MR GREEN: Of a particular bug, so that your Lordship can
see practically how a KEL works and practically how it
relates to a PEAK -- or one or most PEAKs or one or more
KELs because your Lordship will have probably
appreciated that you can have multiple KELs referring to
one or more PEAKs and vice versa -- the practical
realities of the information flow between Post Office
and Fujitsu in their system and the extent of the impact
that one bug can have, the limitations on the sources of
information available to the experts.
MR JUSTICE FRASER: You seem to be counting on your figures
but I don't know what number you've got to.
MR GREEN: I'm sorry. I will give your Lordship just
a narrative overview to start with.
The limitations of the sources of information
available to the experts and what knowledge Post Office
had of that bug and when, to inform the court as to its
approach to these bugs and that will hopefully give
the court at least at the outset of the trial both
a practical understanding, in addition to what the court
has already gleaned from the experts' reports, of how it
actually worked, upon which we are going to place
I think greater emphasis possibly than the defendant,
and to provide a sort of microcosm illustration of what
we, the parties and the court, now have, what those
documents do and do not do, what the claimants have had
to do, what Post Office doesn't do and what Post Office
has known in relation to that bug all along.
So with that brief introduction --
MR JUSTICE FRASER: We also at some point, and I would like
to do it before lunch if possible because I don't want
to cut into Mr De Garr Robinson's time, need to address
in outline terms whether either or each of you want an
adjustment to part 2 of the timetable to deal with
experts' cross-examination, which was an email I sent
out about two weeks ago.
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: So we just mustn't forget that.
MR GREEN: At the moment I think our position is we are not
seeking one and we are content to deal with it in that
way.
MR JUSTICE FRASER: "We" being you?
MR GREEN: The claimants. But there may be a different
view.
MR JUSTICE FRASER: Well, I'm in a much more developed
position than I was at the pre-trial review and I'm
obviously raising the point for a reason but we can deal
with it in outline terms at about 5 to 1, and please
don't forget that the shorthand writers need a short
break between about quarter to 12 and 10 past.
MR DE GARR ROBINSON: My Lord, I wonder whether now would be
a good time to discuss that question. It has been
something that's been bearing on my mind.
MR JUSTICE FRASER: All right.
MR DE GARR ROBINSON: Your Lordship will be aware from the
PTR that my judgment is four days is needed with
Mr Coyne. That remains my judgment. Now that
your Lordship may have had an even greater opportunity
to read the expert reports and their length and assess
the complexity of their contents and their length,
your Lordship may have a different reaction to that
submission than the one that you had during the PTR.
MR JUSTICE FRASER: Well, my position -- I will tell you
what the situation is and then we can revisit at the end
of the day if necessary, although because today is silks
day there is a ceremony for the new silks at quarter to
5 which means we will have to stop bang on half past 4.
My position at the pre-trial review was fairly
clearly based on anticipation of future expert
agreements because I knew that they were still
continuing to meet. I knew what your position was about
four days and I was fairly robust about that.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: Robustness being the word of the moment.
Given what has happened since then, I am now more
open minded to you having longer than two and a half
days if you consider you need longer than two and a half
days. I know originally Mr Green said he wanted I think
three but he seems broadly content with two and a half.
There's also something of a difficulty brewing in the
wings in respect of other litigation on Friday 5 April
because as you know this court sits usually on Fridays
on other business, so part 2 of the trial, by which
I mean the expert evidence onwards, seems to me,
Mr De Garr Robinson, if you tell me you need four days,
I am going entirely to rejig the second half of this
trial so you can have your four days.
MR DE GARR ROBINSON: I'm much obliged to your Lordship.
MR JUSTICE FRASER: So if you just want to mull that over
and we obviously need to set the timetable in more
outline terms, though nothing is set in stone, either
today or tomorrow and that might mean we need to
readdress when the closing arguments are going to be.
MR DE GARR ROBINSON: Yes. My Lord, I was thinking more
time with the experts and then perhaps oral closing
arguments at the beginning of next term, but I have
heard what your Lordship said and I'm grateful for the
indication.
MR JUSTICE FRASER: And that's not impossible either, that
way forward. It would break those two weeks, which are
currently the first week after the break, expert
cross-examination, and the second week, closings; it
would break them into a week for the claimants' expert
to be cross-examined by you, however many days of the
next period Mr Green would want to cross-examine
Dr Worden and whether that's two and a half or three,
there's not really much difference, and then whatever we
do about closings. That's to give you my outline
thinking.
MR DE GARR ROBINSON: I'm grateful.
MR JUSTICE FRASER: All right, Mr Green.
Opening submissions by MR GREEN
MR GREEN: Most grateful, my Lord.
My Lord, there is, as your Lordship has seen, some
fairly high level agreement. Obviously the Horizon
architecture is broadly uncontroversial and Horizon
support, at least the outline of it, how it was provided
is uncontroversial.
MR JUSTICE FRASER: Are there four statements now?
MR GREEN: There are four joint statements. I think the
fourth doesn't take it that much further.
MR JUSTICE FRASER: But there are four?
MR GREEN: There are four.
And the experts agree that the PEAKs and KELs, the
known error logs KELs and the PEAKs, which are the
higher level record created in relation to a KEL, it
goes up the support line; the experts agree that the
PEAKs and KELs together form a useful source of
information about bugs in Horizon, but while they are
the best available resource to the experts, they provide
a limited and incomplete window on what happened and so
cannot paint a comprehensive picture and that's the
agreed view of the experts, just to give your Lordship
a brief outline of the landscape of the evidence they
predominantly relied upon.
It is also true that there are a number of other
documents they have had reference to, as your Lordship
would expect, I think various emails, Fujitsu
presentations and other things which we will come to,
how they provide greater insight.
The PEAKs are created by Fujitsu's third and fourth
line support teams. So your Lordship has in mind how it
works, the first line support seeks to identify whether
there is an existing known error log entry that might
relate to a support call. If not, the second line
support will create a new KEL, a new known error log
record, and then it is the third and fourth line of
support teams that create and investigate PEAKs. And if
your Lordship wants a reference just as a description of
PEAKs there's a helpful one in joint 2 at 0.5, the
reference of which is {D1/2/27} which is where the
experts agreed:
"PEAKs record a timeline of activities to fix a bug
or problem. They sometimes contain information not
found in KELs about specific impact on branches or root
causes - what needs to be fixed."
Then there is some agreement about bugs and errors,
robustness and potential for errors and measures and
controls. It is agreed that there were multiple bugs
with the potential to have a financial impact on branch
accounts and your Lordship will probably have seen from
joint 2, paragraph 1.15 {D1/2/29} the range of views is
between 12 and 29 bugs that the experts have identified
as distinct for which they have seen strong evidence of
the bug causing a lasting discrepancy in branch
accounts. So that's the range of opinion at the moment
and for your Lordship's reference the table where
Mr Coyne refers to those is {D2/4/16}, which is in
Mr Coyne's supplemental report, which if we can just
bring that up on Magnum, your Lordship will see there is
an "Evidence of branch impact" column and where it says
"Yes", that's where the relevant bugs that he has
counted up to 29 are said to have strong evidence of
potential impact on branch accounts.
The areas of robustness where there is at least
outline agreement, the experts agree that overall the
system is relatively robust. They agree that computer
systems are considered more robust if access to the
back-end database is restricted tightly and they agree
that in 2012 Post Office's auditors observed that there
were inappropriate system privileges in this regard and
that's found at paragraphs 3.2 to 3.3 of joint 3, which
is at {D1/4/3}. And the source -- so that's
paragraphs 3.2 to 3.3, your Lordship will see at the top
there. And the source for that is the Ernst & Young
management letter which is at {F/869/32}, which over the
page at 33 {F/869/33} identifies:
"There are inappropriate system privileges assigned
to the APPSUP role and SYSTEM_MANAGER role at the Oracle
database level on the branch database server ...
inappropriate privileged access ..."
And so forth. On page 34 over the page {F/869/34}
they say:
"Unrestricted access to privileged IT functions
increases the risk of unauthorised/inappropriate access
which may lead to the processing of unauthorised or
erroneous transactions."
And then at the bottom they say:
"We noted that there is currently no process to
review POLSAP user accounts or HNGX back-end user
accounts on a periodic basis to determine that user
access is appropriately granted given the job
responsibilities. As a result, our review revealed the
following ..."
And over the page they set out examples of what they
have found and the bottom entry:
"Whilst we noted that there was a monitoring control
in place for privileged access to POLSAP whereby
accounts associated to the SAP_ALL profile are reviewed
and monitoring of failed and successful login attempts
for SAP*, DDIC and BASISADMIN accounts is performed,
this control does not include accounts associated to the
SAP_NEW privileged profile."
And so forth. So that was a document which the
experts identified in relation to that point.
Then at the level of undetected errors, in joint 3,
paragraph 3.6, which is {D1/4/3}, the experts agree
that:
"PEAKs show that some defects have lain undetected
in Horizon for extended periods without being diagnosed
and fixed."
And your Lordship will anticipate we will look at
that carefully through the prism of Dr Worden's
countermeasures which he relies on for robustness and
detection of errors and correcting them in a timely way.
Then as to the effectiveness of the countermeasures
themselves, the experts agree that the effectiveness of
various countermeasures has changed throughout the life
of Horizon. The existence of the countermeasures has
changed as well and your Lordship finds that at joint 3,
paragraph 3.11 and 3.20; that's {D1/4/4}. Your Lordship
will see there 3.11:
"The effectiveness of various countermeasures
changed throughout the life of Horizon."
And if we go over the page {D1/4/5}, at 3.20:
"As Horizon has changed throughout its lifetime, the
existence and effectiveness of any countermeasures has
too. To have considered the time dependence of all
robustness countermeasures over 20 years would have made
the expert reports impossibility lengthy. There was not
the time to do so."
There is a final point on this page, while I'm
there, which is also we say highly pertinent to one of
the difficulties which is at the core of this
litigation, which is that the experts are agreed at 3.22
that:
"Many software bugs can have the same effects as
a user error (as illustrated, for instance, by the
Dalmellington bug, which produced a remming error)."
Your Lordship will anticipate how that will feed
into an analysis of attribution of fault when
a subpostmaster raises something and the experts now
agree that many software errors will look like user
errors.
Then moving on, as to reconciliation and transaction
corrections, about which the court has heard quite a lot
of evidence already in the common issues trial, the
experts agree on the mechanics at least of
reconciliation and TCs and just briefly as to that, it
is clear that the process of data comparison between
third party client data and Post Office held data, much
of that appears to be automated to identify where there
are discrepancies and some of those comparisons are
carried out within Horizon itself, as defined, while
others may not be, so there's a difference I think in
terms of system about exactly where the automated
comparison of external third party client data and
Post Office held data is carried out and we can see that
at {D2/4/22} which is Mr Coyne's second report at 3.37
to 3.38 which is essentially agreeing with Dr Worden's
comments about reconciliation.
Then in relation to the manual allocation of
responsibility and TCs, essentially the experts agree
that there is a human or manual process which is
inevitably subject to errors and in a sense to some
extent that is as far as Dr Worden goes, subject to
a point which I will return to as to the role that
transaction corrections play in this trial.
In relation to other quick topics where there is
broad agreement, issues 2 and 14, which is Horizon
alerting and reporting facilities, there are two big
agreements about that. One is that Horizon doesn't
alert SPMs to bugs and errors itself and that's joint 2,
paragraph 2.1 at {D1/2/38}. And then in relation to
functionality for SPMs obviously it's agreed that
Horizon's functionality allowed subpostmasters to check
cash and stock by counting the same and inputting those
figures. The experts generally agree on the steps and
processes in dealing with discrepancies and they agree
that it was not possible to record a dispute on Horizon
itself and that's joint 2, paragraphs 14.1 to 14.3 at
{D1/2/40}.
And the two last areas of high level agreement are
Horizon shortfalls data and reporting for
subpostmasters, which is 8 and 9. There is fairly high
level agreement about available data and reporting.
They agree factually about what transaction data and
reporting functions were available to subpostmasters and
Post Office respectively and that's joint 3 at 8.2
{D1/4/10}. And they agree, importantly -- although
your Lordship has already heard some evidence about this
in the common issues trial -- that Post Office had
access to several sources of information to which
subpostmasters were not privy, which is joint 3 at 8.1,
which is {D1/4/10}.
MR JUSTICE FRASER: Right. I'm a bit puzzled at some of
your references although you were going quite quickly so
it might be that I missed some of them. You said
joint 2, paragraph 14.1 to 14.3. I'm not sure if you
actually turned that up, did you? Was that turned up on
the common screen?
MR GREEN: {D1/2/40} is 14.1 to 14.3, my Lord, at the bottom
of page 40.
MR JUSTICE FRASER: Yes.
MR GREEN: So that's where the expert agreement is and the
reference is -- they haven't set out.
MR JUSTICE FRASER: No, I was looking for a different --
I was looking for subparagraphs of the earlier number 14
which was euro discrepancies which was on page 12, which
is also a paragraph 14 but it doesn't have
subparagraphs.
MR GREEN: Indeed.
MR JUSTICE FRASER: Yes, so ...
MR GREEN: I'm sorry if I'm going too fast but this is
just --
MR JUSTICE FRASER: Well, I don't know -- when you refer me
to these I don't know whether you are expecting me
hurriedly to look at them on here before you go on to
the next one or not.
MR GREEN: I will perhaps indicate if I invite your Lordship
to look carefully at it.
In relation to remote access and editing of
transactions, your Lordship will appreciate this is
going to be something of a hot potato during the trial.
There is a measure of agreement that certain categories
of access or tool have been available at various times
and at the moment I don't want to go into that in too
much detail save to identify what the types are, if
I may.
So there is Post Office remote access which was at
a minimum read only access to all branch transaction
data, which is referred to at joint 3, paragraph 7.2
which is {D1/4/10}. I'm not asking your Lordship to
look at it particularly.
There is the Fujitsu ability to insert transactions,
one such tool being the balancing transaction tool used
by Fujitsu's SSC, system support centre, third line
support, which has been used on at least one admitted
occasion {D1/5/5}, which is joint 4 at 10.3.
There is privileged users with the capability to
edit or delete transaction data and there are some logs
relating to this access but what's recorded in those
logs has changed significantly over time. That's
joint 4 at 11.3 {D1/5/10}.
There is accounts altered without consent which is
changes to an SPM's branch transaction data made without
a subpostmaster's consent which your Lordship will find
for example at Dr Worden's first report, paragraph 1136
which is {D3/1/248}.
And there is also reference there to the rebuilding
of branch transaction data --
MR DE GARR ROBINSON: I'm sorry, I don't understand
my learned friend's reference to paragraph 1136. It may
not be helpful but I wonder if he could explain what he
means about Dr Worden agreeing.
MR GREEN: So if your Lordship sees, there is a table at
1136 where Dr Worden sets out what he says can be done
and it has got "Data amendment" as the first column and
he says:
"Whether Post Office has had the ability to:
"Inject/inject: yes, global users have had that
ability.
"Edit/delete: no."
And then "without the knowledge of subpostmaster:
no"; "without the consent of subpostmaster: yes".
So I'm just trying to summarise the effect of what's
in that column.
MR JUSTICE FRASER: That's how I read it.
MR GREEN: I hope that's helpful to my learned friend.
MR DE GARR ROBINSON: I'm grateful.
MR GREEN: Then the final one is the transaction repair tool
which is referred to at {D1/5/3-4}. It is at the bottom
of that page:
"The earlier transaction repair tool affects only
[this is Dr Worden] back-end copies ..."
And then he lists some of the others.
MR JUSTICE FRASER: Sorry, where were you just looking at?
MR GREEN: Sorry, the bottom bullet point on that internal
page 3, which is actually --
MR JUSTICE FRASER: The one that begins "The earlier
transaction repair tool ..."
MR GREEN: Exactly:
"... affects only back-end copies of transaction
data [this is Dr Worden's view] and so does not enable
remote access."
And then he refers to other things. On that,
my Lord, I just invite your Lordship to note on page 7
{D1/5/7}, at 10.11, the experts agree:
"We have not been provided with logs or audits from
the transaction repair tool (TRT)."
So just trying to pick out the broad landscape,
where the big disputes will be, one of the big areas of
difference between the parties is as to robustness and
has a couple of facets to it: one is its utility in
terms of determining the individual other issues in the
trial and we have referred to that on page 9 of our
written opening {A/1/9} including at, for example,
paragraph 17.1.
The issue of robustness has been a fairly focal
point of the defendant's case throughout. They first
raised the contention that the Horizon computer system
is robust in their response to the Panorama documentary,
which is at {F/1422/1}. Your Lordship will probably
remember this document from it before, but the
Post Office was responding to the Panorama programme on
17 August 2015 and it says that the allegations are
based on partial, selective and misleading information:
"The Post Office does not prosecute people for
making innocent mistakes and never has.
"There is no evidence that faults with the computer
system caused money to go missing at these Post Office
branches.
"There is evidence that user actions, including
dishonest conduct, were responsible for missing money."
And so forth and then it refers to the allegations
and then the last paragraph before "Background facts" is
where they say:
"The Horizon computer system is robust and effective
in dealing with the six million transactions put through
the system every day by our postmasters and
employees ..."
And so forth:
"It is independently audited and meets or exceeds
industry accreditations."
Then the letter of response makes four references to
"robust". I won't take your Lordship to them. The
generic defence then reflects that language at
paragraph 16, paragraph 50 and paragraph 153, which are
respectively -- we don't need to turn them up, but are
respectively for reference at {C3/3/5}, {C3/3/21} and
{C3/3/61}.
And then the third CMC, Post Office themselves
particularly proposed issue number one, "Is Horizon
robust and extremely unlikely to be the cause of
shortfalls" and for reference -- we don't need to turn
it up -- that's the skeleton argument at {C8.4/2/25}
and then that becomes the focal point of Dr Worden's
report and we respectfully say feeds into his approach
to the evidence as a whole. So what he does, in
contra-distinction to Mr Coyne, is Dr Worden looks at
the idea of robustness in a particular way, which I will
break down in a moment, and then through the prism of
robustness then looks at the other issues and we
respectfully will invite the court to adopt an approach
more consistent with Mr Coyne's approach which is to
look at what actually happened with particular examples
and trace them through to a reasoned and careful
conclusion and then from the ground up, as it were, draw
inferences upwards rather than from an overarching
hypothesis downwards.
Your Lordship has probably seen that in addition to
that we have questioned the extent to which something
being said to be robust provides any solace to an
individual postmaster and that's at page 10 in -- it is
{A/1/10}
MR JUSTICE FRASER: Page 10 of?
MR GREEN: In our written submissions. And the short point
there, my Lord, is what's different about this is this
is not a provider of an IT system and the customer and
the customer being able to aggregate and deal with
things in the round with the provider. We're looking
one hop over and it is no solace to an individual SPM
who faces an unexplained shortfall which might be a lot
of money for them, even though a small amount of money
relatively for Post Office, to be told "But don't worry,
it's a rare occurrence", and so we respectfully say that
the entire universe of transactions is not the right
comparator for answering at least the other questions
and possibly the question of robustness in this trial.
We have made clear from the latest our generic reply
that we respectfully say that a low chance multiplied by
a high number of transactions is totally consistent with
the levels of claims being advanced by the claimants in
this case. My Lord, if I can just very briefly take
your Lordship to that, {C3/4/21}. It's at paragraphs 36
and 37 of the reply.
MR JUSTICE FRASER: Which paragraphs?
MR GREEN: It is paragraphs 36 to 37:
"Notwithstanding the various checks and
controls ..."
MR JUSTICE FRASER: It is really 35 to 37, isn't it?
MR GREEN: It really is, my Lord, your Lordship is right.
Then in 37, second line:
"In fact, the relatively small chance of errors
admitted by the defendant, would be likely to produce
the very picture reflected in the claimants' case. The
existence of money in the defendant's
suspense account(s) ... shows that errors generate
financial consequences by which the defendant receives
money to which it does not believe it is entitled, and
credits those sums to its profits."
That's a reflection of the suspense accounts being
credited profits after three years which we will turn to
when we get to Dr Worden's evidence.
"This too is consistent with the claimants'
case ..."
And if we go over the page {C3/4/22}, it identifies
the publicly maintained position and if we can go
forward to page 29 of that document which is {C3/4/29},
we look at paragraph 52:
"... the claimants repeat its primary case pleaded
in GPOC and aver that the terms identified are onerous,
oppressive ..."
Et cetera and that relates back -- that's the
position on the common issues reflecting the 52.5, the
identification of some errors and so forth. So that's
how that fed back into the trial your Lordship has
already heard.
In relation to robustness there's the sort of second
big area, but it's absolutely dovetailed with
Dr Worden's definition of robustness, which is his
definition of countermeasures which your Lordship will
have seen. He has identified these countermeasures and
he has drawn inference about their effectiveness and as
a result of those inferences concluded that the Horizon
system is robust and the most extraordinary of these is
the treatment of transaction corrections as
a countermeasure, because Post Office's position, we
respectfully say, is illogical and effectively a one-way
ratchet in Post Office's favour. So the approach is to
say that the process of making transaction corrections
is relevant as a countermeasure but not within this
trial, that's effectively the position adopted, and it
is we respectfully say an unusual position.
If we look at {A/2/44}, this is Post Office's
written opening for the Horizon issues trial, and we can
see at paragraph 114 the opening line of that:
"Post Office's reconciliation processes are outside
the scope of the Horizon issues."
So that's the prism through which the Post Office
invites your Lordship to be constrained for the purposes
of this trial.
Now, we compare that to what Dr Worden refers to at
{D3/1/71} and we see at paragraph 257 that Dr Worden
says:
"In my opinion, the countermeasure of UEC was so
essential in Horizon, and it was effectively
implemented. Because of this, many software errors
resembling user errors were also corrected."
Now, there what he is talking about is user error
correction, which is not the correction of user errors,
it's subpostmasters spotting software errors and drawing
them to the attention of Post Office and that feeding
through to Fujitsu. And we will look carefully at what
the information flow in real life looks like, but UEC is
not just an important countermeasure, in it Dr Worden's
opinion UEC, which is SPMs spotting system errors and
pointing them out successfully, UEC was "so essential in
Horizon".
If we then go to page 78 in that document {D3/1/78},
I would invite your Lordship to look carefully at
paragraph 294, flatly contrary to Post Office's position
in its written opening:
"The processes of reconciliation, TAs and TCs are
a very important part of the robustness countermeasures
built into Horizon - particularly for UEC."
So, my Lord, that ties back to that paragraph we
have just looked at.
Then just as an extra point, when Dr Worden is
presented with KELs in which it appears there might have
been a financial impact on branch accounts, he
frequently infers that TCs would have been issued to
correct the position and therefore it's robust. We will
explore some examples of that with Dr Worden in due
course. And therefore it would be certainly helpful if
my learned friend could clarify what Post Office's
position is about the relevance of TCs. If they do not
form part of the Horizon system, robustness of which
they have insisted is in issue in issue 1, then to the
extent that that robustness is dependent on transaction
corrections, the system is not robust. If it is in then
it is dependent on that process of transaction
corrections and your Lordship will obviously appreciate
from the previous trial what that involved in practical
terms.
So ultimately, the approach of Dr Worden more
globally we respectfully say has an element of
circularity about it because what we find is that where
bugs are detected -- so where we have been able to find
evidence of bugs -- Dr Worden prays that in aid to show
that "Well, they can be detected, so the system is
working, so it is robust", where bugs have not been
detected by the system that's prayed in aid as the
absence of bugs and where bugs have been found that have
gone undetected for a long time, but are finally found
several years later, that is still said to be evidence
that the system and controls are all robust. So in fact
the position is that it is not possible to identify any
evidence which could ever lead to the conclusion the
system is not that robust on that basis and we
respectfully invite the court to scrutinise that
approach with some care.
The big difference which I have already indicated
between the approach of Mr Coyne and the approach of
Dr Worden is Mr Coyne has started with the primary
source material and the PEAKs and KELs -- and we will
illustrate this in a moment in relation to
Dalmellington -- and has tried to build up the picture
from those, whereas Dr Worden has looked at everything
through the prism of the robustness countermeasures that
I have just been describing.
The third big area of dispute is remote access.
Your Lordship will appreciate that the position on
remote access has developed somewhat to say the least.
It is worth just briefly recapping how that position has
developed. Your Lordship will remember that Post Office
originally made its public statement in response to the
Panorama programme which denied any ability remotely to
alter branch data. That's at {F/1422/2} and you see
there halfway down the page:
"There is also no evidence of transactions recorded
by branches being altered through 'remote access' to the
system. Transactions as they are recorded by branches
cannot be edited and the Panorama programme did not show
anything that contradicts this."
Your Lordship will remember Mr Roll appeared on the
Panorama programme.
We have set this section out at page 22 of our
written opening {A/1/22} and we have traced through the
development of the position. It is clear that what
Post Office told the public in response to the Panorama
programme was not true.
At paragraph 65:
Following the claimants' letter of claim ...
Post Office admitted (in their 28 July 2016 letter of
response) that in fact Post Office and/or Fujitsu did
have some limited capacity remotely to access and edit
transactions ..."
Then at the GLO hearing my learned friend said to
the master -- wanted to deal with the remote access
point upfront and explained that the people who gave
that response thought it was correct. He said:
"... Horizon system is a very complicated system.
It involves lots of departments in ... both in Fujitsu
and in the Post Office. And the people who are
responsible for the correspondence didn't know that in
fact there were these two other routes. Very few people
at Post Office knew that there were these two other
routes. They were ... they were routes that are
under ... essentially under the control of Fujitsu who
is the expert independent contractor ..."
And then at the bottom:
"... the point having been discovered, the
Post Office wasted no time in ... in bringing the
truth ... the accurate ... and accurate set of facts to
the knowledge of the claimants."
And at the end of that section:
"... the fact that there is a possibility to alter
remotely itself is ... not in issue, it now having been
discovered and the fact that there are these clever
routes by which they can be done."
MR JUSTICE FRASER: I think you have gone over the page
to 23.
MR GREEN: I have indeed, my Lord, yes.
So that was what the court was told at the GLO
hearing, that it shouldn't be in issue because it had
now been admitted, and then the generic defence, we
identified what was admitted at that point paragraph 57
of the generic defence which is {C3/3/25}. In fact can
we just go back one page to 24 {C3/3/24}. There's an
admission at the bottom there:
"... bugs or errors ... have resulted in
discrepancies and shortfalls or net gains ..."
Go over the page and then that deals with those bugs
and errors. You come down to the "Remote editing of
branch transaction data" heading at 57 and then
subparagraph 1 says:
"Neither Post Office nor Fujitsu has the ability to
log on remotely to a Horizon terminal in a branch so as
to conduct transactions."
MR JUSTICE FRASER: What's the name of the Post Office or
the person who signed the statement of truth on the
generic defence? There is just a signature on it but
I can't see what the name is. {C3/3/75}.
MR DE GARR ROBINSON: My Lord, it is Jane MacLeod.
MR JUSTICE FRASER: Jane MacLeod, right. Thank you.
MR GREEN: Your Lordship will see that the case is then set
out in the subsequent subparagraphs:
"A Post Office employee with 'global user'
authorisation can, when physically present at a branch,
use a terminal ..."
And then:
"Any transactions effected by a global user are
recorded against a global user ID and are readily
identifiable ..."
Then 3 {C3/3/26}:
"Fujitsu (and not Post Office) has the ability to
inject transactions into branch accounts (since the
introduction of Horizon Online in 2010, transactions of
this sort have been called 'balancing transactions')."
Then halfway down 3:
"They may be conducted only by a small number of
specialists at Fujitsu and only in accordance with
specific authorisation requirements. They are rarely
used. To the best of Post Office's information and
belief, only one balancing transaction has ever been
made so as to affect a branch's transaction data, and
this was not in a branch operated by a claimant.
A balancing transaction is readily identifiable as
such."
And so that's the account that we get which appears
on its face to conclude the allegation which had been
originally made by Mr Roll in Panorama, subject to --
MR DE GARR ROBINSON: My Lord, just to be clear -- I'm sorry
to interrupt, but just to be clear, your Lordship may
recall an argument in the pleadings, this is talking
about Horizon Online, paragraph 57 is principally about
Horizon Online not about Legacy Horizon and it is
important not to swerve between the two different forms
of Horizon in relation to which different forms of
remote access were possible.
MR GREEN: My Lord, I agree it is important not to swerve
between them.
The development of the case in terms of evidence
essentially followed the service of Mr Roll's witness
statement, Mr Roll's first witness statement {E1/7/3}.
Now, in fact that statement was dated 11 July 2016 --
your Lordship will understand why a witness statement
was taken at that stage before a pleading of this
type -- and it was served on 28 September 2018 and at
paragraph 18 of that witness statement, for example,
Mr Roll says:
"The ability to remotely access the Horizon system
at branch level was extensive, in that we were able to
change not only data and transaction information, but we
also had the ability to insert transactions and transfer
money remotely without the subpostmaster knowing.
Obviously this was not done by me, however I can recall
thinking that a third party may have been able to do
that if they could have remotely accessed the system in
the way that we could (which may or may not have been
possible)."
So he is being qualified there about him not having
done it himself.
We then on the same day are served the witness
statements of Mr Godeseth and Mr Parker, Mr Godeseth
first witness statement on 28 September 2018. He says
that any remotely injected transaction would be easily
identifiable as such because it would have a counter
number greater than 32 and the reference to that is
{E2/1/17}, 58.10. And it is right to distinguish
between Legacy Horizon and Horizon Online:
"In Legacy Horizon any transactions injected by SSC
would have used the computer server address as the
counter position which would be a number greater than
32, so it would be clear that a transaction had been
injected in this way."
So that's served on the same day as Mr Roll's first
statement.
Then we get the 16 November 2018 statement of
Mr Parker, Parker 1, {E2/11/5}, at paragraph 22. He
says -- notwithstanding that he is responding to
Mr Roll, he says:
"It is correct that the 'remote access' described
above could have been carried out without the permission
of a subpostmaster. However, any additional
transactions inserted remotely would be identifiable as
such from the transaction logs that are available to
subpostmasters from Horizon."
So the effect of those two witness statements, one
at the same time as Mr Roll and one responding to
Mr Roll, is to preclude a transaction appearing as if it
has in fact been done by a subpostmaster when actually
it hasn't and to do so clearly.
Then Dr Worden says that Post Office's evidence
accords with his experience with support staff more
generally and we see at {D3/1/244}, paragraph 1114, he
effectively takes a view on the conflict of evidence
between Mr Roll and Mr Godeseth and sides with
Mr Godeseth saying that it accords with his experiences:
"... that support staff should have a facility like
this, so that branch accounts could be corrected in
exceptional circumstances - without resorting to DBAs."
And if we go forward to page {D3/1/245},
paragraph 1119, he said:
"Mr Roll worked in the SSC and I established
above ... certain SSC users had the ability to transact
injections ..."
I think it might be the other way round, inject
transactions:
"... although these would have become visible to
subpostmasters. So in my opinion Mr Roll could not have
made these changes to branch accounts 'without the
subpostmaster knowing'."
So that's Dr Worden's conclusion on that, that's
7 December and then if we -- your Lordship will remember
that Mr Roll's second statement explained how those were
to be made and in response to that Mr Parker serves
a witness statement confirming that Mr Roll is right and
we see that at {E2/12/9} which is paragraph 27, where he
says:
"In paragraph 20 of Roll 2 [which we will look at in
a second] Mr Roll describes a process by which
transactions could be inserted via individual branch
counters by using the correspondence server to
piggy-back through the gateway. He has not previously
made this point clear. Now that he has, following
a discussion with colleagues who performed such actions
I can confirm that this was possible. I did not mention
this in my first witness statement because, when faced
with a less clear account in Mr Roll's first statement,
my recollection was that if it was necessary for the SSC
to inject a transaction data into a branch's accounts,
it would have been injected into the correspondence
server (injecting via the server was the default option
which was followed in the vast majority of cases)."
MR JUSTICE FRASER: So apparently it is all Mr Roll's fault.
MR GREEN: Apparently.
MR JUSTICE FRASER: Well, I dare say that will be pursued in
due course.
MR GREEN: Indeed. And the final reference, just so
your Lordship has a reasonably complete picture about
this, is {D3/6/21} which is Dr Worden's second report,
which postdates Mr Parker's second statement, at
paragraphs 83 to 85. If we go to {D3/6/21} and if we
look at 83 to 85:
"It seems to me that I require further factual
information before I can comment on this evidence.
Which 'specific person'? Under what circumstances? How
frequently? Until I have that information, it remains
possible in my view that any transaction which 'would
appear to the subpostmaster as though it had been
carried out through the counter in branch' might only be
a transaction that he had given his consent for, as the
'specific person' - and which had in effect been made on
his behalf.
"Therefore, Mr Roll's new evidence does not cause me
to alter the opinion expressed at paragraph 1119 of my
first report, when commenting on Mr Roll's first witness
statement, that he could not alter branch accounts
without the subpostmaster knowing."
85:
"In paragraphs 27-34, Mr Parker provides detailed
and specific commentary on Mr Roll's paragraph 20, using
his knowledge and the appropriate contemporary
documents, where they have been found. Here he
acknowledges that Fujitsu could insert transactions into
branches by a piggy-back process. I am not yet able to
comment on Mr Parker's evidence or the documents he
cites."
So that's the manner in which Dr Worden engaged with
the picture that emerged in that way through those
witness statements.
So, my Lord, that's the background to those big
issues and the sort of key features of them. I don't
know whether it is worth taking a very slightly earlier
break.
MR JUSTICE FRASER: I would maybe go on a bit.
MR GREEN: Shall I push on a bit?
MR JUSTICE FRASER: Yes.
MR GREEN: Because I'm about to begin just tracing through
the Dalmellington bug to see how that arises.
The Dalmellington bug is a shorthand name for
a particular bug and it takes its name from an iteration
of the bug which occurred in October 2015 and it is in
the Horizon Online system, particularly, but probably
not exclusively, affecting transfers of cash between
core branches and outreach branches, which are small
part-time branches that use mobile equipment. Cash is
sent from Post Office to a core branch and then it is
transferred from the core branch to an outreach branch.
When the barcode for the cash was scanned at the
outreach branch, the number of remittances would
multiply so that Horizon showed far more cash on the
system than was physically present. And just so
your Lordship knows, or has an idea of how it seemed to
the postmistress Ann Ireland who was affected in
Dalmellington, what in fact appears to have happened is
that at the remming in stage the post mistress was
presented with the "Enter" button, she presses it, that
should take her on to a new screen, but it stays there
and it is pressed again and again, and it appears that
there is a reasonable inference that the multiple of
cash reflects the number of times -- that looks to be
how it works. So she ends up with trying to rem in
an £8,000 cash remittance into the outreach branch and
actually the Horizon system recording her account as
having remmed in 32,000. So four enters effectively, so
she is over by £24,000.
My Lord, we say that this is quite an interesting
bug to look at because of the precise way in which it
arose because unusually, in a lot of other cases the
postmistress or postmaster is trying to work out what's
happened, without knowing, but in this case they are on
both ends of the transaction because they see a receipt
that they have printed out going out and they are at the
outreach branch and they see what they get at the
outreach branch and they can literally hold them up and
go "That cannot possibly be right". So this is a good
example of a very particular bug which was at literally
one end of the spectrum of visibility to subpostmasters,
in contrast to a number of others, and we will see that
in the documents that we go through.
My Lord, can I begin by taking your Lordship to
{F/1389} which is the PEAK. I say "the PEAK" and I will
explain in a little more detail in a minute. So this is
PEAK PC0246949 which for convenience I will refer to as
the 949 PEAK. And just to show your Lordship how the
PEAK document works -- it may be absolutely apparent
already -- "Call type", "Live incidents/defects" and
then there's a "Priority", priority C, "Non-critical".
And then there's a summary "Horizon -- transaction
discrepancies", as we come down, and then "All
references" your Lordship will see as a heading, "Type"
and "Value" and there under SSCKEL, that is system
support centre known error log, your Lordship can see
the acha621P KEL. Just as a practical matter, in terms
of knowing what a KEL is about, the way the KEL system
was set up, the KELs are named after the person who does
them, not the issue. So you can't tell anything about
the KEL from the name.
Then your Lordship then sees "Clone call", PC0246997
which for convenience I will refer to as the 997 PEAK.
So that's an associated PEAK.
Then just following this document through, the
progress narrative has a very brief summary of the
fuller data above, so you can see "Call type: L", means
"Live", "Call priority: C", cross-references to
non-critical and so forth. And we then come down. The
date of the record in the sort of yellowy-beige section
is 13 October at 2.46 in the afternoon, 14.46.
MR JUSTICE FRASER: Where are you looking?
MR GREEN: Just halfway down the page, my Lord, when it goes
from a duck egg blue colour to a yellowy colour.
MR JUSTICE FRASER: I see, but date time is the day before
at 5.10.
MR GREEN: Exactly.
So the record there in yellow is 13 October and the
transfer note begins:
"Please can PEAK investigate this discrepancy issue.
NBSC has confirmed that following discussions and checks
with the user that this is not a user error issue ..."
So confirmed not a user error issue, which in this
particular case was very easy for reasons I will show.
"... but an issue within the system requiring
Fujitsu investigation."
And then there's the message:
"Hi Eden, need to raise an incident for below issue
and ... provide Fujitsu re ... it's been confirmed with
SM."
Then you get the same text effectively again about
confirming that it is not a user error. And if
your Lordship comes down to just under
"Problem/request":
"User has discrepancies when transferring cash from
one branch to another (specifically between their main
branch to their outreach branch); OUTREACH BRANCH ISSUE.
"User said instead of the system logging it as
£8,000 transaction, it recognises it as £32,000
transaction.
"User already contacted NBSC and was rightaway
directed to us ..."
And the amounts are logged at the bottom: star
£8,000 over £32,000. I think the amount should be
actually over 24,000 but I think they are recording what
it actually did is 32,000.
MR JUSTICE FRASER: Well, it says it should have been £8,000
but it has been recorded as 32,000.
MR GREEN: Exactly.
And the subsequent pages of the PEAK record the
dealings with the PEAK in a bit more detail. I will
come back to some more specific aspects of that. If we
can just go back to the first page for a second
{F/1389/1} and we look at "Clone call" and the 997 PEAK,
if we go to {F/1389.1} this is the 997 PEAK, which
appears to be a PEAK cloned from the other one. So
"Release PEAK", there's a reference to another PEAK
there and the clone master is the 949 PEAK that we have
just looked at. So this is a clone of the master PEAK
and it refers to another release PEAK and it also refers
to the KEL, the acha621P KEL which is the same KEL
referred to in the previous one. And your Lordship will
see under "Progress narrative", this 997 PEAK is opened
on 14 October by someone called Anne Chambers who we see
quite a bit and then it appears to paste in what's
happened on the 13th below it, so it's not actually in
chronological order going downwards.
And we get a bit more information there in the
middle set out quite helpfully:
"Branch has a discrepancy of £24,000. 4 other
branches have had a similar problem in the last
2 months."
And your Lordship will see in a minute that she is
unable to go back more than two months at that stage to
see what else has happened.
"3 of these resolved by remming out the excess.
Since these were all branch to branch rems and there is
no cross-branch accounting within Horizon this removes
the discrepancy."
And then if we can then go to {F/1393}, this is
PEAK 207, which is just for your Lordship's note not the
other release PEAK that was mentioned in the previous
document, because that ends 024, it is a third one. And
here we can see halfway down that the date is 21 October
we're in now and there is email correspondence involving
Mr Parker as the originator -- your Lordship will see
"Originator" about halfway down the page, just below
where it goes from sort of green to duck egg green or
duck egg blue, 21 October 2015, 13.35.01. Four lines
down:
"Originator: Parker Steve ..."
Which we understand to be Mr Stephen Parker who is
giving evidence in this trial. And we can see that
there is correspondence from Tony Wicks to Anne Chambers
about Anne Chambers having done most of the
investigation into this. If we look at the bottom we
see Tony Wicks on 20 October 2015 at 15.25 to
Sandie Bothick saying:
"Hi Sandy,
"Looking at PEAK [949] ..."
Which --
MR JUSTICE FRASER: That's the one we started with.
MR GREEN: Exactly, so that's effectively the master -- it
is treated as the clone master PEAK:
"Looking at PEAK [949] it appears to be derived from
I7991774 and I found TfS incident ..."
And there is a number there:
"There is no problem record raised for this, however
PEAK [997] was used by development to investigate this.
A code fix has been developed, but requires official
testing and releasing. I've made enquiries and
unfortunately LST are unable to take the fix for testing
and release 12.88 without significantly impacted that
release to live.
"As the condition can be avoided by postmasters,
ie by making them aware of the condition and advising
them not to press enter multiple times, I propose that
this is KELed and included in the counter release
13.05."
And just a bit further down {F/1393/2},
Sandie Bothick is replying. She is saying:
"Hi POA DM ..."
Duty Manager:
"Have PEAK make you aware of this issue?
"Do you have a PR open ..."
And so forth. And then below is what she sent to
Atos earlier:
"Hi Katie, I'm coming in blind on this. Looking at
the incident this is our update from PEAK TfS
connector ..."
And so forth. Then there are further references to
the 997 PEAK:
"We are continuing to investigate the problem ..."
Just over halfway down:
"... but any fix will not retrospectively change the
branch accounts."
MR JUSTICE FRASER: Yes.
MR GREEN: "So we are aware of the issue and are continuing
to investigate but NBSC should be able to sort the
discrepancy out in the meantime."
MR JUSTICE FRASER: I think if you are going to move on to
another document I think we should take a break.
MR GREEN: Shall we take a break there?
MR JUSTICE FRASER: Yes. Come back again at 12.
(11.54 am)
(Short Break)
(12.00 pm)
MR GREEN: My Lord, can I just highlight a couple of
remaining points in this PEAK. If we can begin at
{F/1393/4} please.
MR JUSTICE FRASER: This is still in PEAK 207, is it?
MR GREEN: It is still in PEAK 207, exactly.
Now, your Lordship will see at the bottom of that
page, Monday October 19th, 2015 at 5.33 pm.
MR JUSTICE FRASER: Yes.
MR GREEN: "IT-Solutions R SPM Post Office incident
management".
"Hi Ibrahim, as this incident is not getting
resolved can we have a concall set up between NBSC &
Fujitsu.
"The site had transaction discrepancy. As per
Fujitsu, they have found 4 other instances (outreach
branches ..."
It gives the name:
"... and all but the last removed the discrepancy by
completing a rem out for the excess ..."
Then if we go back to the previous page {F/1393/4},
there is an email which is on 20 October 2015 at 9.53 at
the top of the page, part of it, and if we come down
four paragraphs -- well, let's maybe take it from the
second line:
"She was concerned as she had never seen this
before. She balanced core and it was correct, but
outreach was £24,000 short.
"Although the core had sent only one lot of £8,000,
the outreach had accepted 4 lots of £8,000 in one
transaction!
"She has spoken to NBSC ref 1358666 who told her it
was a technical issue.
"She then phoned the IT help desk ref I7972295. She
was unconvinced they understood the problem although
they said they could probably 'rectify remotely'. After
waiting till the end of day she called back and
escalated to option 7 and spoke to Rich who told her to
phone NBSC.
"I don't think the helpline understood what's
happened. I can understand that as you would think it
is not possible. But incredibly Anne's outreach Horizon
now shows £24,000 short and it does not exist. As you
can imagine, Anne is concerned and I have told her not
to touch the outreach unit until this is resolved for
her.
"The incident was passed to Fujitsu who have advised
that in order to resolve the issue the branch/NBSC must
'complete a rem out for the excess to correct the cash
holding' which Fujitsu are unable to do. The NBSC has
subsequently advised that they cannot assist as this is
an IT issue, however Fujitsu are also advising that they
cannot assist. As a result, the issue has been passed
back and forward for over a week."
Then if we go back a page {F/1393/3} to 20 October
at 10.42, Kendra Dickinson at the Post Office says:
"Could I enlist your help and support on the below
issue please?"
MR JUSTICE FRASER: This is underneath "Hi Rod/Dawn"?
MR GREEN: Exactly.
"Whilst I am happy for NBSC to try and support where
they can, the concern I have with the below is that we
have no process for managing this type of issue and we
are unable to see any of the back-end accounting for
this branch. Therefore, any advice that we try and
provide could end up making matters worse - this is
already showing a 24K loss. I am not happy for NBSC to
give advice on something that is not a process that
exists within the knowledge base.
"Similar to a disconnected session, NBSC would have
no understanding as to the implications on branch
accounting if they were to advise the branch as
suggested below."
And then if we go up there, there is more about the
difficulty of NBSC giving help and advice with
insufficient information, top of that page, which is
under Tuesday 20 October at 11.57:
"... an explanation of the root cause to be supplied
by Fujitsu via Atos so that both our Finance Service
Centre and NBSC colleagues can be assured that the right
advice is given, there is no impact to the branch
account and a full audit trail is available. It does
not feel right for Atos and Fujitsu to be giving
instruction to NBSC to speak to branches with advice
with insufficient information.
"If this has happened in this case it would be
useful to see that in this email trail.
Then if we go back a page to {F/1393/2}, halfway
down the page -- this is in the Sandie Bothick email
that appears to start at the top and appears to include
what she sent to Katie, who I think I referred
your Lordship to already. If we come halfway down does
your Lordship see "POA-Horizon".
MR JUSTICE FRASER: No. Oh yes, I see it.
MR GREEN: Just there and then you have "Provider ref" and
a reference to the 949 PEAK.
MR JUSTICE FRASER: This is the one we have seen already.
MR GREEN: Indeed. It says:
"Resolution details: update by Anne Chambers:
category 70 - final - avoidance action supplied: we have
found that if there is a log-out before a user has fully
logged on, then subsequently a pouch is remmed in
manually (most likely at an outreach branch), then after
the rem in slip has been printed, the same screen is
redisplayed and the user is likely to press enter again
and duplicate the remittance, possibly several times.
A different screen should be displayed which would
prevent this happening.
"A rem in slip is printed each time, showing the
same details but different session numbers, and
a transaction log search confirms the repeated rems."
And then importantly, we would respectfully say, she
says:
"This is not an area that has changed for several
years so it is likely to have happened before but we
have no record of it having been reported to us. I can
only check back two months; I've found 4 other instances
[of the outreach branches] ... and all but the last
removed the discrepancy by completing a rem out for the
excess ..."
MR JUSTICE FRASER: Those four must be in the last two
months, mustn't they?
MR GREEN: Precisely. So pausing there --
MR JUSTICE FRASER: On the face of the document they must be
the last two months.
MR GREEN: Exactly. So pausing there, your Lordship will be
beginning to get a feel for the fact that it is quite
difficult to identify with confidence from a particular
KEL that you have necessarily found any related KELs, or
from a particular PEAK that you have necessarily
identified all of the PEAKs that relate to that problem
and there is obviously some information flow
practicalities, both in relation to what information
flows to the affected subpostmaster and whether there's
a clear process for that, and also internally about the
reporting of these issues by Post Office through its
processes back to Fujitsu because the reporting of those
issues is obviously essential to one of Dr Worden's
countermeasures in terms of fixes being applied to
correct the system errors.
From there can I invite your Lordship just to see
{F/1389} and {F/1389} is -- that's 949 that we have
identified as the PEAK we have looked at and then when
we look at the reference to the additional receipts
being produced we need to look at a couple of
documents --
MR JUSTICE FRASER: Do you mean on the same PEAK?
MR GREEN: Yes, this is still -- this is all cross-referring
to the same ones. We've got {F/1386}, and, my Lord,
this makes good the advantage to a subpostmaster --
"advantage" is a relative term, but compared to some
other software issues. By being on both ends of the
transaction she is able to produce what has gone out and
in. So we've got the remming in money which should be
£8,000 and you've got on the right-hand side four
separate remming ins of £8,000, all effectively in the
same -- within one minute of each other, those four
separate receipts coming down the right-hand side and
one slightly on the left, numbered 1 to 4.
If we then go to 1392 we've got the events log which
the subpostmistress was able to see showing rem out slip
on the left-hand side where she has written "Rem out"
and then on the right-hand side she has identified
multiple receipts being printed which are the four
receipts we have just looked at. So on this particular
bug this subpostmistress at Dalmellington had both ends
of the data, as it were, and was able to say "Look, this
cannot possibly be right."
MR JUSTICE FRASER: Yes.
MR GREEN: And that is obviously reflected in the
recognition internally within Post Office of what's then
happened.
Then if we just briefly go back, your Lordship will
notice that the date of the event itself is 8 October
and then we get the record created at 12th and notes at
13th and then the later ones where they are arguing
about the fact it has been bounced back between helpline
and Fujitsu are dated the 20th, just to get the timeline
clear in that respect.
Can I take your Lordship now to the underlying KEL
which is at {F/1426}. So this was a KEL raised by
Anne Chambers on 15 October 2015, so on the face of it
looks like prior to that date the acha6 -- it is
difficult to see, prior to that date of 15 October 2015,
to what extent there was an existing KEL identifying
this on the face of the documents.
MR JUSTICE FRASER: Yes.
MR GREEN: And the symptoms are described:
"A cash pouch was received at an outreach branch and
scanned into Horizon. The manual process was followed
and 2 Delivery Receipts printed. Then the clerk pressed
Enter to complete the process, and a Rem In slip was
printed. They were then able to press Enter again and
another Rem In slip was printed - and the same amount of
cash was recorded a second time. They may have repeated
several times before using Cancel to escape, resulting
in much more cash being recorded on the system than they
actually have."
And "Solution - ATOS" at the bottom -- they refer to
the problem they have identified which is a problem
your Lordship has already seen. "Solution":
"Known problem should now be fixed so any further
occurrences need to be investigated - send call to PEAK.
"Outreach branches can avoid the problem by making
sure that they do not press Enter again after they have
printed both Delivery Receipts and the Rem In slip - if
they find the Rem In screen is still displayed they
should press Cancel to get out of it, ignoring the
message that not everything has been printed."
So actually what's reflected there, my Lord, just
pausing, is that what's shown on the screen is actually
positively misleading and that is in fairness to some
extent reflected in the next sentence on {F/1426/2},
where they say:
"However, they are unlikely to notice immediately
that they are on the wrong screen, and will probably
have duplicated the rem in before realising something is
wrong."
Because if you successfully press the enter button
it's meant to move on to the next screen, so when it
doesn't go away they just keep pressing it.
MR JUSTICE FRASER: That says in the third paragraph:
"The cause of the problem is being investigated ..."
MR GREEN: Indeed.
MR JUSTICE FRASER: And can we go back to the previous page,
page 1 {F/1426/1}:
"Known problem should now be fixed ..."
What does "known problem" mean?
MR GREEN: My Lord, this is one of the points -- there are
two tasks I'm trying to do, which is to try to
interrogate the documents as helpfully as I can for
the court, but at the same time try to identify to
the court the difficulties that one is -- anyone is
faced with when looking at the incomplete picture that
the experts have referred to.
MR JUSTICE FRASER: All right, understood. Let's go on to
page 2 again please {F/1426/2}.
MR GREEN: And your Lordship will see again there:
"... but it will not retrospectively correct the
accounts at affected branches."
So that's noted again there.
Now, what in fact happened was there was external
third party interest in this problem and that resulted
in a Fujitsu presentation on 10 December 2015. To be
fair to Post Office, Post Office wanted answers but
wanted an identification of root cause and there's also
some pressure from a blogger at the time which we will
see later, and at {F/1415}, there is a Fujitsu
presentation on 10 December 2015 on the branch outreach
issue. "Initial findings", the first page confirms it
is for Post Office's internal purposes only as
confidential. If we go over the page {F/1415/2} it
confirms there are potentially two separate issues at
play. It:
"Doesn't correctly close down on the post log on
script. This leaves the script on the 'stack' of
incomplete processes."
And also:
"The pouch delivery script thinks it has completed
doesn't explicitly finish".
And there's some consideration of that.
If we look at page 3 {F/1415/3}, as
at December 2015, the date of this presentation,
Post Office knew from Fujitsu that there had been 112
occurrences that Fujitsu had identified of duplicate
pouch IDs over the past five years, three issues with
duplicate pouches, 47 outreach cases, 19 using the
"Previous" button after a pouch scan, which was said to
have been fixed March 2010, 46 remitted at multiple
counters, fixed January 2011, 108 items corrected at the
time either by transaction correction or subpostmaster
referral, four items still to be confirmed, no items
related to the period where the mediation scheme --
MR JUSTICE FRASER: What does BLE stand for at the top?
MR GREEN: I'm not --
MR JUSTICE FRASER: If you don't know it doesn't matter.
MR GREEN: I'm not sure I know, my Lord. I was going to
hazard a guess but I'm not sure I'm right. Maybe we can
check that.
And if we go forward to page 7 {F/1415/7} of that
document please, in 2010/2011 there were 65 incidents of
a slightly different iteration where the "Previous"
button -- if you used the "Previous" key during or just
after the pouch barcode scans you get a multiple remming
in problem and:
"No more occurrences found post fix."
And then 46 remittances at two counters, that's the
same pouch being remitted at the same branch at more
than one counter. 46TCs reviewed and applied by
Post Office and then a fix applied in January 2011, "No
more occurrences found post fix", fully aware of both at
the time.
MR JUSTICE FRASER: And are these -- I think you said
previous iterations?
MR GREEN: Previous iterations of related but not identical
code issues that led to multiple remming in.
MR JUSTICE FRASER: Because they are not all under the same
PEAK number, are they?
MR GREEN: They're not. So tracing exactly where it is
found is not absolutely straightforward.
MR JUSTICE FRASER: Because part of the document you showed
me before was the people involved trying to find out if
it there was an existing PEAK number to which it
related.
MR GREEN: Precisely.
Then if we go over to page 8 {F/1415/8}, this goes
to the flow of information from Post Office to Fujitsu
in order to ensure timely corrections of the software.
One transaction correction completed by Post Office,
five remittance transactions completed by PMs, zero
calls raised with Fujitsu. Nine incidents in 2012, zero
calls with Fujitsu. Seven incidents in 2013, zero calls
with Fujitsu. Two unknown outcomes noted in 2013,
£25,000 and 2,500. And those, until I think it was
yesterday or the day before, we didn't have clarity on
what had happened on those. There is now greater
clarity as a result of some additional documents that
we've got from Post Office.
The further "Detailed preliminary findings" on
page 9 {F/1415/9}, identify 2014, nine incidents, no
calls and then 2015 to 2016, one call raised with
Fujitsu, which is effectively the call which I think is
Ann Ireland's call which I think ultimately goes
through. Then "January 2016 fix to be applied".
So that gives your Lordship a feel for how in this
particular example the information flow appears to have
worked. There had been a five-year period over which
double remming system errors had been detected, there
had been some fixes of aspects of that, but it's
uncertain -- it's difficult to analyse precisely the
genesis of all of those incidents.
If we now go to {F/1399}, we can see that
Computer Weekly was running an article about the problem
that the CWU was looking into and if we look on page 3
of that document {F/1399/3}, we can see at the top of
the page:
"The alleged problem investigated by the CWU
involves the process where subpostmasters transfer money
from a core Post Office branch to a remote branch
created to serve rural areas, known as an outreach,
which is basically a branch on a laptop. These
processes are known as remittances."
And so forth. So "Post Office department recognises
duplication problem" at the bottom:
"Following a post on a web forum, another postmaster
recognised the problem as something she had experienced
in the past, and the financial department of the
Post Office in Chesterfield was contacted on her advice.
"According to the postmasters' branch of the CWU,
the financial department recognised the issue and told
the postmaster they would need to send a positive
monetary change to the Horizon branch accounts ..."
So that was following a post on a web forum. So
although it is clear that there are cases that have been
identified and have been corrected, precisely how that
has happened may vary from case to case.
At the bottom:
"The alleged fault, if proved, would question the
Post Office's continued claims that there are no
systemic faults in Horizon."
So that was what was happening in November. There
is a follow-up article at {F/1405} which is
a Computer Weekly article, on 18 November 2015.
MR JUSTICE FRASER: I'm not sure we are there yet. Where do
you want to go now?
MR GREEN: I'm not going to take you to the detail of it.
Just so your Lordship knows, there is a follow-up to the
point --
MR JUSTICE FRASER: Which is at F/1405?
MR GREEN: This is at F/1405.
So just stepping back from this, this bug is
significant in the sense that not only was it one that
was at the top end of the visibility for proof for the
subpostmaster, who actually got both ends of the
receipts, but there is also public pressure being
applied in the media specifically on the issue
in November and then we have actually got the Fujitsu
presentation about it, so there's an unusually rich
source of information available to the claimants and
the court in respect of that.
There are then internal Post Office emails at
{F/1495.1/5} and the first four pages of this are
redacted but it is an email from Paula Vennells, the
chief executive, citing a blog post by Mr McCormack, who
was a fairly energetic blogger on this topic and
I haven't taken your Lordship to his blogs but they were
happening in parallel, and she says:
"Dear both,
"This needs looking into please ... can I have
a report that takes the points in order and explains
them.
"Tim McCormack is campaigning against PO and
Horizon. I had another note from him this am which Tom
will forward, so you are both in the loop.
"We must take him seriously and professionally.
"This particular blog is independent of Sparrow but
clearly related in that it appears to present similar
challenges that were raised in the course of the scheme.
"I'm most concerned that we/our suppliers appear to
be very lax at handling 24k."
Pausing there, that appears to be a reference to the
triple sum rather than to any of the outstanding cases
they haven't traced because they were 2,500 and 25,000.
And response on the same day at {F/1495.2/1} from
a Rob Houghton who was head of IT at Post Office, so we
there get:
"I need an urgent review and mini <taskforce> on
this one."
MR JUSTICE FRASER: Where are you reading?
MR GREEN: Sorry, immediately under Rob Houghton's response
at the top, third of the way down, copied in to Angela
van den Bogerd, "The Dalmellington error in
Horizon/problems with POL" which was the news article.
"I need an urgent review and mini <taskforce> on
this one. It probably needs to link up heavily with
Angela's work as FSC are mentioned extensively ..."
This is 1 July 2016, my Lord:
"... - Angela cfi."
Copied for information presumably:
"I don't know how we respond to this but can we
section a few inside people to get all over it and give
me/Al/Paula evidence and understanding."
And then at the top of the page the response at
11.59, which is difficult to fit into the chronology,
appears to be on the same day, Friday 1 July:
"Can you stand down on this please?"
Redacted:
"Any specific actions and I will revert.
"My apologies."
Pausing there, the claimants' letter of claim was
sent on 28 April 2016 and the Post Office sent its
letter of response on 28 July 2016 so nearly four weeks
after the decision to stand down on the investigation of
that bug. So as at the date that the Post Office was
responding in its letter of response, it had front and
centre in its mind the existence of this bug.
Now, that bug was not disclosed in the letter of
response. The bugs that were disclosed in the letter of
response were the three that Second Sight had already
found and Post Office letter of response, if we can just
turn to {H/2/95}, stated --
MR JUSTICE FRASER: That's the letter of response, is that
right?
MR GREEN: Yes.
MR JUSTICE FRASER: This is the schedule 6 rebuttal, is that
right?
MR GREEN: Precisely.
This is where the Post Office obviously rebuts the
allegations that have been made in the letter of claim
and at 1.5:
"Second Sight only reported on a number of already
resolved defects in Horizon (which they called 'bugs').
Second Sight did not discover these defects through its
investigations. These were issues already known to and
remedied by Post Office. It was Post Office that
disclosed them to Second Sight."
So those are the three. Then 1.6 deals with the
lack of attribution of any shortfall in the scheme to
Horizon. Then 1.7:
"The letter of claim also presents no evidence that
a defect in Horizon has caused a postmaster to be held
wrongfully liable for any shortfall in their branch.
"Nevertheless, you make repeated references to the
existence of historic defects in Horizon in order to
give a false impression that Horizon deeply suffers from
major defects, that Post Office does nothing about them
and that these errors have caused postmasters losses
which have gone unremedied. In order to dispel any
myths around the defects reported on by Second Sight and
cited by other sources, we have set out below in detail
what happened in these instances. To be clear -
Post Office does not claim that these have been the only
defects in Horizon."
So what they do do is they respond to the three that
were known about, but they don't give any account of the
Dalmellington bug or of its true extent which they well
knew about from the Fujitsu presentation -- sorry,
Dalmellington related issue on multiple remmings,
because there are a number of different PEAKs and
different software code problems that relate to multiple
remming.
So if we just look over the page, just
parenthetically, my Lord, if we may, at {H/2/96}. In
relation to the Callendar Square, Falkirk issue, that is
said to be an issue that only affects one branch and it
is ruled out in the -- at the bottom:
"... also raised as part of a defence in a civil
action by Post Office against a former postmaster,
Lee Castleton ... The Court accepted the evidence from
Fujitsu’s witness, Anne Chambers, and found 'no
evidence' of the Falkirk bug in Mr Castleton’s branch."
We now know from Mr Godeseth's witness statement of
16 November that this bug affected 30 branches and
resulted in mismatches at 20 branches.
So it's not just in the letter of response that they
don't deal with Dalmellington, but it's not a full
account perhaps of what was being said.
MR JUSTICE FRASER: The Callendar Square one affected
30 branches.
MR GREEN: Indeed.
MR JUSTICE FRASER: That's different to the Dalmellington
one.
MR GREEN: Completely separate.
MR JUSTICE FRASER: Is there a list of those 30 branches
somewhere?
MR GREEN: I think we've got -- I will trace where it is.
MR JUSTICE FRASER: Just give me the reference in due
course.
MR GREEN: Of course.
Coming back to Dalmellington, so what in fact
happens is it is not disclosed in the letter of response
and then the experts are then provided essentially with
8,000 KELs and about 220,000 PEAKs. My Lord, just for
your Lordship's note, in the appendix we have dealt with
how we obtained the KELs and the genesis of that
disclosure at {A/1/12-14} and then we have set it out in
greater detail in the appendix.
MR JUSTICE FRASER: Which is at 106 I think.
MR GREEN: Indeed.
So what in fact happens is there is the --
eventually we get the KELs.
MR JUSTICE FRASER: I made an order I think, didn't I?
MR GREEN: Your Lordship made an order, exactly. And they
had first been -- the KELs had been requested in the
letter of claim and your Lordship made observations
about the response to that earlier.
What in fact happens is Mr Coyne is the person who
discovers the existence of the Dalmellington bug in his
first report. If we look at that, it's {D2/1/58}. And
he actually locates it -- it is paragraph 5.16 -- and
your Lordship will see at paragraph 5.16 he explains
what's happened and footnote 46 is the email thread and
then he also finds the duplicated branch receipts and
then if we can just go to page 60 of that document --
MR JUSTICE FRASER: Page 60 of which document?
MR GREEN: Of Mr Coyne's first report {D2/1/60}.
Your Lordship will see that although he does refer to
a KEL at 5.23:
"... evidence of cash declaration discrepancies
arising from clerks duplicating remittance in
transactions ... because of wrong messages being
presented on the Horizon counter screen ..."
MR JUSTICE FRASER: Yes.
MR GREEN: He has not at that stage worked out that this is
the Dalmellington bug. So it just gives your Lordship
an insight into how we had to discover what was done.
Then Mr Parker and Mr Godeseth's evidence is
significant because the bug was not dealt with in the
first round of the Post Office's evidence at all and
only after it was referenced by Mr Coyne was it dealt
with in the first statement of Mr Parker and the second
of Mr Godeseth and Mr Parker confirmed the link between
the KEL and Dalmellington and says temporary financial
impact which was rectified by a transaction correction
being issued. Mr Godeseth then discloses the 112
instances of duplicate bar codes and then appends the
analysis that I have already mentioned to the court.
Then Dr Worden's initial analysis, which is
7 December 2018, does not reference Dalmellington, so
Post Office appear not to have told him about it, or he
has not dealt with it, we don't know which it is, and
despite the fact that it had actually been referenced by
Mr Coyne in Coyne 1 and he is responding to it, and
referenced in Godeseth 2 and Parker 1, which are
statements which Dr Worden -- I'm sorry, I was corrected
by my learned friend earlier, I have forgotten to say
that: my Lord, Dr Worden pronounces his name Dr Worden,
I have been pronouncing it wrongly.
Despite the fact that Dr Worden has referred to the
defendant's witness statements on other matters. He did
mention the KEL and he regarded it as having --
MR JUSTICE FRASER: Are you talking about Worden 2 now or
Worden 1?
MR GREEN: This is Worden 1. Then Mr Coyne, in Coyne 2,
identifies further PEAKs on his own without any
assistance from Post Office and sets those out -- no
need to turn it up, I will just give the references
{D2/4/105} and the PEAKs concerned are the 207 PEAK
which we have looked at which is {F/1393}, and 949 PEAK,
{F/1389}.
MR JUSTICE FRASER: Sorry, can you give me the first one
again?
MR GREEN: Sorry, the 207 PEAK is {F/1393} and the 949 PEAK
is {F/1389}. Then Mr Coyne then attempts to look for
PEAKs with FAD codes of those branches whose situations
are unresolved and can't find anything. There are four
unresolved of which two are a significant sum and he
mentions that at Coyne 2, paragraph 4.53, we don't need
to go there but it is {D2/4/107}.
Then in Dr Worden's second report he does refer to
Dalmellington, explaining he didn't realise that the KEL
he was looking at related to Dalmellington and he
concludes that there was no permanent error due to the
branch account because it was resolved by a TC, a PEAK
and KEL were created, so the system worked well and it
was fixed, and his opinion is re-enforced by the small
maximum financial impact that he has estimated of
incorrect TCs. He doesn't actually expressly mention
the 112 occurrences, the 87 other branches affected or
there that it lay undetected for five years, at least
for some parts of that aspects of it appear to have been
corrected by various fixes, the lack of calls put into
Fujitsu or actually directly address the four branches
where there is no outcome confirmed.
So stepping back, your Lordship will now have
a picture of the task and the information available, why
the experts are agreed that the KELs and PEAKs have
relevant information in them but not a complete picture,
and how this particular bug was addressed.
Now, the postscript to this is that four hours and
45 minutes after our written opening had been filed with
the court, so at 4.45 on 4 March, PO disclosed for the
first time 36 additional documents.
If we look at {H/232} --
MR JUSTICE FRASER: Are these documents other than the ones
you mention in one of your paragraphs as being
outstanding that Mr Coyne had asked for?
MR GREEN: My Lord, they are -- well, I think they overlap
because they relate to the Dalmellington bug, some of
them.
MR JUSTICE FRASER: So 36 new documents. Where are we going
now?
MR GREEN: This is {H/232}, so this is the letter on
4 March, 4.45 in the afternoon, so after written
openings had been filed with the court and it says:
"During preparation for trial a number of further
documents which relate to the Horizon issues trial have
come to Post Office's attention.
"Disclosure of these documents is being provided by
way of enclosed disclosure list. The enclosed list also
contains those documents which have been provided to the
claimants but not yet formally disclosed."
My Lord, I'm not going to deal with the contents of
those documents now, but I am going to have to take
Dr Worden to them and some of the witnesses to them, but
in fact what seems to have happened, there's some sort
of investigation that has been done in relation to the
two outstanding branches that we said were unremedied in
our opening and a conclusion is reached that it is
probably all fine, if I can put it in fairly neutral
terms at the moment.
There are other bugs which we are obviously
concerned about whether we got the full picture on but
that will emerge in the evidence.
The background, my Lord, if I can just very quickly
take your Lordship through it. There is correspondence
which covers the disclosed documents here and the
Dalmellington bug, which starts on 2 October 2018 at
{H/122} in which we refer to the bug or error, we refer
to bugs which are in addition to those acknowledged in
the letter of response and ask for all documents
relating to these bugs and errors.
MR JUSTICE FRASER: Yes.
MR GREEN: So that's when it starts. My Lord, I'm not going
to take your Lordship through all the correspondence.
Can I just give you the references.
MR JUSTICE FRASER: Go on.
MR GREEN: There's a chaser on 13 December 2018 {H/147},
there's the 11 January 2018 letter from Wombles at
{H/165} offering voluntary disclosure of documents,
providing 162 documents for Dalmellington; there's the
22 January 2019 letter at {H/173/6} referring to the
four unknown branches that I have just been talking
about.
MR JUSTICE FRASER: That's a letter from your solicitors?
MR GREEN: From my solicitors.
1 February, we've got Mr Coyne's second witness
statement at 4.51 to 4.53 {D2/106}, 11 February, some
disclosure, but 4 March these actual documents relating
to those outstanding branches.
MR JUSTICE FRASER: Thank you very much.
MR GREEN: My Lord, that's hopefully a helpful introduction
to what the micro texture of the facts looks like,
trying to build up and answer the question.
Can I just very briefly take your Lordship to
a couple of documents which give an overview from the
internal perspective of Post Office and your Lordship
will have in mind that if we just quickly turn to
{F/1325/145}, Post Office's public position in its
response to Second Sight of 11 March 2015, paragraphs 18
and 19:
"Questions were raised about Post Office's plans to
change to a new system when the Post Office's current
contract with Fujitsu in respect of Horizon comes to an
end in March 2017.
"Post Office's intention to move to a new system
does not reflect any dissatisfaction or lack of
confidence in Horizon. It is simply that the current
contractual arrangements are due to expire."
So that's the public position. And there are
a number of documents -- given the time I will just take
your Lordship to a couple of them -- which suggest that
there were concerns with both the overall IT system and
also the back office aspects of that and the ability
properly to control and understand the sorts of issues
that would be required in reconciling data.
If we can go very briefly to {F/1557}, this is
22 October 2016, paragraph 3:
"Our back office also struggles with the
complications of dealing differently with each of our
many clients, heavily manual processes, reconciling
disparate sources of data, retrospective financial
controls and a lack of flexibility. This backlog of
challenges, poor support contracts and a lack of skills
have led to a prohibitive cost of change, preventing the
about improvements that should occur as part of
a business as usual."
And if we go then forward please to {F/1587/1}.
This is a draft document dated 28 November 2016, so
I qualify it with the fact that it is a draft, and
"Context" it says:
"This document forms an update to the IT strategy
approved in July by the POL board. In July we outlined
that IT was not fit for purpose, expensive and hard to
change."
If we go to page 3 of that document {F/1587/3},
paragraph 1:
"The IT strategy outlined a view of the current
state of technology within POL as failing to meet POL
aspirations on any assessment lens (cost, risk, delivery
or service)."
And paragraph 5:
"Our greatest 'run the business' risk areas where we
are outside of appetite are age and state of the legacy
environment (eg Horizon availability, back office
estate, lack of resiliance and [disaster recovery] of
core platforms ...) ..."
Then Mick 24.11.16 appears to be repeatedly
referenced throughout this document. One of the main
risk drivers over the page at {F/1587/4} is lack of
a robust IT and controls environment in the table at
paragraph 7, that's one of the main risk drivers
identified in this document in November 2017. Then if
we can just briefly go to the final version of that
document at {F/1610}, that's dated 30 January 2017 and
your Lordship will note from that page that in context
again the line that was in the draft has survived the
considered review that doubtless took place before it
was finalised:
"In July we outlined that IT was not fit for
purpose, expensive and difficult to change."
And the conclusion refers to reporting on the IT
strategy in July. And at page 2 {F/1610/2}, the first
indented bullet point:
"We need to quickly rationalise and resolve
misaligned contracts enacted to support legacy IT,
obsolescence, a lack of PO technical competence,
particular focus on Fujitsu and Accenture."
And on page 3 of that document {F/1610/3} at bullet
point 1:
"The IT strategy outlined a view of the current
state of technology within PO as failing to meet PO
aspirations on any assessment lens ..."
Which is the quote I have already identified to
your Lordship. And quite a lot more of the same. The
only last page I would refer your Lordship to just very
briefly -- we will have to go to these in more detail
with other witnesses, but at page 8 of that document
{F/1610/8} there's a diagram on page 8 and it is
introduced by the bullet point just above it:
"The following highlights the current operational
risk areas referred to earlier in the document and the
initiatives underway or proposed ... to migrate these
into risk appetite - purple - severe risk, red -
high risk, amber - within appetite but attention
required ..."
And your Lordship will note that the Horizon branch
systems box is in red in the Post Office's own internal
document.
MR JUSTICE FRASER: Which means it is high risk.
MR GREEN: It means it is high risk.
MR JUSTICE FRASER: Yes.
MR GREEN: My Lord, in overview then, your Lordship will be
hearing some important factual evidence which we
respectfully say is going to be an absolutely essential
bedrock for the experts then to give their considered
opinions on, after the factual evidence that Post Office
has put forward has been properly tested, because I'm
afraid we've got some aspirational "would have" evidence
and conclusions feeding through into the expert reports.
The three key points are the parties radically
differ on their approach to working out the answers. We
are going to commend the approach of what actually
happened rather than the hypotheses. The second is that
we are confident that the factual enquiry that will be
undertaken will enable your Lordship to have a more
robust basis for drawing any inferences as to the
answers than without it. And the final point is that
the question of robustness we respectfully say, while
relevant, is not going to be the determinative prism
through which those issues fall to be answered.
MR JUSTICE FRASER: Final question. Trial management, we
are starting with Mr Latif tomorrow.
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: He is on the video, is that right?
MR GREEN: He is. He is travelling specially to Islamabad
to get a better connection.
MR JUSTICE FRASER: In view of time difference do you want
to start at 10 rather than 10.30?
MR GREEN: My Lord I think it is all teed up for 10.30.
MR JUSTICE FRASER: That's fine. I need not interfere any
more.
Okay, so 2 o'clock.
(1.00 pm)
(The luncheon adjournment)
(2.00 pm)
Opening submissions by MR DE GARR ROBINSON
MR DE GARR ROBINSON: My Lord, good afternoon. I will just
say something briefly first of all about the claimants'
history, Mr Green's history, of how we got here. He
devotes 25 pages of his opening submissions to those
questions. My submission is that those questions are
mostly a distraction from the important questions in
this case, which is the Horizon issues. Many of the
points that he makes are unfair and some of them we say
are downright wrong, but I will not take up time I don't
have in addressing them in this opening. Instead,
subject to your Lordship, I propose to deal with them in
writing in our written closings. If I have time at the
end of these submissions I may say a few brief things
about some of them, but I suspect I won't have time.
Laying those points to one side, the Horizon issue
consists of 15 questions and, as your Lordship will have
seen from our submissions, we say they can be
conveniently divided into three groups. In descending
order of importance, the first question is is Horizon
robust or does it cause branch shortfalls? The second
group of questions can be summarised as was Fujitsu --
because we are talking about Fujitsu here -- secretly
manipulating Horizon data? And then thirdly there's
a miscellany of factual questions about the function and
operation of the system.
Your Lordship has already heard from Mr Green
indicating that the operational/functional issues are
largely agreed. Despite the apparent differences
between the experts on proper analysis we say there is
no material disagreement between them. They are agreed,
for example, that subpostmasters could run over 100
different types of report covering transactions
conducted at the branch. In the ordinary course these
reports would show enough information for
a subpostmaster to be able to balance his or her
accounts.
My Lord, these reports can be used to identify the
causes of some types of discrepancies but not others
because to do more would require knowledge of complex
back-end systems which subpostmasters cannot be expected
to have and for your Lordship's note that's in the
second joint statement at paragraph 9.3 {D1/2/39}.
It is important to note that it is not suggested by
the claimants that the -- or at least by Mr Coyne at any
rate -- that subpostmasters should be given direct
access to information of a back-end kind and indeed in
his second report your Lordship will note that Mr Coyne
positively disclaims any suggestion of that sort. He
deals with that at paragraph 5.380 which is at
{D2/4/225}.
So why are those issues here? They are here because
it is the claimants' pleaded case that there was
something wrong with the way in which Horizon was
designed and operated for subpostmasters. For example,
they say there was an asymmetry of information which was
inappropriate. Horizon did not give them the
information that they should have done. Amongst other
things, the suggestion seems to be that it should have
notified them of bugs, it should have given them far
more information than it did to enable them to dispute
shortfalls.
Your Lordship will see that from paragraph 19.3 of
the generic particulars of claim. I won't take
your Lordship to it but for your note the reference is
{C3/1/7}, where there is a reference to limitations on
subpostmasters' ability to access, identify and
reconcile transactions recorded on Horizon and the lack
of any or any adequate report writing features as
repeatedly raised by Mr Bates.
Now, that is what is noted by Dr Worden in his first
report and he discerns an assumption, he says, in the
claimants' case that there is something wrong with the
level of information that's provided to subpostmasters
and your Lordship will see that, for example, in
paragraph 954 of his first report, the reference to
which is {D3/1/213}.
My Lord, in my submission he correctly discerned
that allegation in the claimants' case, but in
Mr Coyne's second report, paragraph 5.380, that's
{D2/4/226}, Mr Coyne has now firmly disassociated
himself from that suggestion. So that's good news, it
means we can put that aspect of the claimants' case to
one side.
But the claimants' opening does go further. It
spends a great deal of time addressing the effectiveness
of the information that was provided to subpostmasters,
the reports that are covered in the functional and
operational issues. In my respectful submission, that
is unnecessary and inappropriate for the purposes of
this trial. It is not a Horizon issue -- the
effectiveness of those reports, what can be done with
them is not a Horizon issue. Whether in any given case
a report is sufficient to enable a subpostmaster to
identify the root cause of a discrepancy depends on the
nature of the discrepancy that he or she is faced with.
It is essentially a breach issue and it is not something
that should take any time up in this trial. There is
already quite enough to be arguing about.
So we can put the operational issues largely to one
side. We say, as your Lordship will be well aware, that
the critical issue is one of robustness. The claimants
seem to think that this is the wrong question. Indeed,
they criticise Post Office for seeking to include it in
the Horizon issues, even though all that Post Office did
was seek to formulate issues that reflected the
pleadings.
Now, why is robustness critical? It is explained in
our opening at paragraphs 23 to 26. When the court
decides individual claims an important question will be
whether Post Office can generally rely on accounting
data from Horizon as evidence of what the postmaster or
his staff keyed in at the relevant time, or whether the
relevant claimant can say the court should infer or
presume that the shortfall shown by the accounting data
was caused by a bug. The question of robustness is not
dispositive of that question. What the court decides in
any breach trial will depend on the evidence of that
particular case. For example, it could be shown that
the shortfall was caused by a particular bug operating
in a particular way at a particular time, or it could be
shown that the shortfall was caused by a particular
transaction correction and that that transaction
correction was erroneous, but these are individual
breach issues which will turn on the facts of the
individual breach trials. This trial is to decide the
generic issues. Hence the wording of the Horizon issues
themselves. I don't know whether your Lordship has
a copy of --
MR JUSTICE FRASER: Well, the ones I'm using are at your
annex.
MR DE GARR ROBINSON: Well, I'm grateful.
MR JUSTICE FRASER: They are in a few places but it seemed
the most useful.
MR DE GARR ROBINSON: Yes, we hoped that would be helpful to
your Lordship.
Issue 1:
"To what extent was it possible or likely for bugs,
errors or defects of the nature alleged to the
effects ..."
Set out there. Your Lordship will note that the
issue did not stop at the word "possible". It is common
ground that it's possible. No one is claiming that
Horizon is perfect, no one has ever claimed that Horizon
is perfect. The interesting question is not whether
it's possible; we know it has happened. The interesting
question is whether it is likely.
Similarly with issue 3:
"To what extent and in what respects is the Horizon
system robust and extremely unlikely to be the cause of
shortfalls in branches?"
That asks an extent question. It asks a likelihood
question. Why? Because as I have sought to explain to
your Lordship, that's a useful issue which will then
have a bearing on the conduct of breach trials to be
conducted in the future.
Similarly with issue 4:
"To what extent has there been potential for errors
in data recorded within Horizon to arise in data entry
and so on?"
Again, it is another extent question. And, my Lord,
in paragraph 6, Horizon issue 6:
"To what extent did measures and/or controls that
existed in Horizon prevent, detect, identify, report, or
reduce to an extremely low level the risk of the
following ..."
That's a risk question, an extent of risk question.
So, as I say, my Lord, the critical question that's
raised by the Horizon issues, the relevant Horizon
issues here is not whether it's possible that bugs have
occurred in Horizon which have caused branch shortfalls;
we know it's possible, it's actually happened. That's
not even an issue on the pleadings, my Lord. The
critical issue is the issue that's raised in
paragraph 16 of the generic defence and perhaps I could
ask your Lordship to look at that. It's at bundle
{C3/3/5}. Paragraph 16 reads:
"Highly generalised and speculative allegations are
made that Horizon ... is unreliable or vulnerable to
manipulation and thus may have been the root cause of
some of the losses in branches. Like any IT system,
Horizon is not perfect, but Post Office maintains that
it is robust and that it is extremely unlikely to be the
cause of losses in branches."
My Lord, that means it is extremely unlikely -- in
any given case, when you see a loss in a branch, it is
extremely unlikely that that loss is going to be caused
by a bug.
So, as I say, my Lord, the question is not whether
it's possible for Horizon to create shortfalls, the
question is whether in relation to any given shortfall
Horizon is likely or unlikely, or extremely unlikely, to
have caused those shortfalls. In my submission that's
the essential question at the heart of this trial. It
will allow the parties to know whether at any breach
trial the accounting information on Horizon for the
relevant branch and the relevant month is a valid
generally reliable starting point.
MR JUSTICE FRASER: I'm not in any way being difficult,
I think we may as well just deal with it upfront at the
beginning. Am I to read "robust" as meaning "extremely
unlikely to be the cause", or is there more meaning to
"robust" than that? Because I think whatever it is, we
all have to make sure we are using the word the correct
way, or the same way.
MR DE GARR ROBINSON: The concept of robustness is a concept
which involves reducing to an appropriate low level of
risk, the risk of problems in Horizon causing shortfalls
which have a more than transient effect on branches. So
it involves both measures to prevent bugs arising in the
first place but those measures are never going to be
perfect and it includes measures which operate once
a bug has actually occurred and triggered a result. It
is both aspects of the equation.
I don't say that the word "robust" necessarily means
"extremely low level of risk", but what we say is that
if you have a robust system it produces a result in
which the system works well in the overwhelming majority
of cases and when it doesn't work well there are
measures and controls in place to reduce to a very small
level the risk of bugs causing non-transient lasting
shortfalls in any given set of branch accounts.
MR JUSTICE FRASER: All right, thank you very much.
MR DE GARR ROBINSON: So it is not necessary or indeed in my
submission appropriate to investigate all the bugs or
errors that have ever been found in Horizon if those
bugs have no real impact on branch accounts. There
simply isn't the time for that.
The important thing is to focus on bugs which have
a financial impact on the branch accounts. And, as
I have already sought to explain to your Lordship, one
needs to bear in mind that robustness does not mean bugs
can't occur, or will almost never occur; it includes the
controls and measures which have the effect that when
they do occur they are likely, very likely, to be picked
up and remedied.
One consequence of that is that some bugs may have
an effect on branch accounts which is only going to be
transient because the system supporting Horizon will
pick up the impact and correct it as night follows day
in the ordinary course of the business.
Let me give your Lordship an example. The example
of remming in and remming out. My learned friend spent
some time this morning explaining the Dalmellington bug
and what he described as linked bugs, some other linked
bugs that were also dealt with in the report that
your Lordship saw. Actually those other bugs were
separate bugs -- they had a similar symptom but they
were separate bugs.
In remming it is an easy case. It is particularly
easy when it is an internal rem, as it were, from the
branch to an outreach branch. There are a very small
number of outreach branches. But also more generally
when you are remming in cash that has been provided by
Post Office and is sent to the branch, the Post Office
will have its own record of how much money was sent out
and the branch will have its own record of how much
money was received. If those two numbers don't
reconcile that is going to be picked up as night follows
day and that is going to be the result of some process
which will result in the problem being resolved.
Your Lordship will have seen from the Dalmellington bug
report itself that you saw this morning that a large
number of the impacts that were discussed in the course
of that report were sorted out by transaction
corrections without the need for any intervention by
Fujitsu or anybody else.
In fact, Fujitsu still fixed those bugs,
your Lordship will note, so Fujitsu picked up on the
bugs even though they weren't the result of reports from
subpostmasters to Fujitsu. So Fujitsu itself -- it's
quite a good example of how problems in the system, in
reconciliation, will result in Fujitsu becoming aware of
things because of its own automatic systems and sorting
them out. But the important point is that it will be
extraordinarily rare for a remming in or a remming out
problem ever to produce a result that would have
a lasting effect that will cause a branch to suffer
a shortfall which leaves it powerless to resist. That's
simply not in the nature of the remming process and the
reconciliation processes that are associated with it.
While dealing with reconciliation, my learned friend
I noticed tried to kick me in the heels by inviting me
to state what my case is on reconciliation generally and
transaction corrections --
MR JUSTICE FRASER: I always ignore those sorts of comments.
MR DE GARR ROBINSON: My Lord, it is a tempting thing for
him to do, I understand why he did it, perhaps I would
have done it if I was in his position, but the important
thing to note is that the reconciliation process, we all
know how it works, it is essentially automated and
discrepancies are picked up between the system and when
discrepancies are picked up they are then investigated.
There isn't enough time in this trial to investigate
the processes -- and there are many of them -- by which
discrepancies are investigated. It simply wouldn't be
possible and that's why those issues were positively
excluded from the Horizon issues. There was a debate
about it and that part of the process was excluded and
that's why your Lordship will see from Horizon issues 5
and 15 which deal with reconciliation and TCs,
your Lordship will see that those questions are
essentially factual.
So to the extent that my learned friend is
suggesting that one can only have a Horizon trial if one
had disclosure of every single reconciliation process
that has been operating in Post Office or Horizon for
the last 20 years and every single transaction
correction that's ever been sent in the last 20 years,
my learned friend is in my respectful submission
obviously wrong.
Now, does that mean, as my learned friend would like
to pretend, that it is therefore not possible to have
a trial of the robustness question? And the answer
is: obviously not. We all know that the process by
which reconciliation happens means that where there are
irreconcilable figures, where there are discrepancies
between figures that should be the same, they will be
looked at and in the vast majority of cases they will
result in conversations, they will result in enquiries,
which will cause the problem to be resolved in
a satisfactory way.
My learned friend wants to say "Well, sometimes" --
it being a human process -- "sometimes the corrective
process will come to the wrong conclusion." Well,
my Lord, that doesn't alter the fact that the process
itself is a corrective process, it's a process that will
tend to improve the reliability of the ultimate figures
rather than take away from the reliability of the
ultimate figures.
So, my Lord, that's the very short answer to
my learned friend's question. If he wants a longer one,
or if your Lordship wants a longer one, we can of course
discuss it later.
My Lord, another example of measures which prevent
problems from arising is in relation to recoverable
transactions. Your Lordship will have seen some
discussion of recoverable transaction in the expert
reports and also in some of the witness statements. So,
for example, when the system crashes, there's a power
failure or something similar, it is always possible that
a transaction being undertaken at the branch will not at
that point have reached the Horizon system, for example
because the outage occurs before the basket for the
relevant transaction is closed. It is when the basket
is closed that the transaction gets added to the
branch's Horizon accounts.
Now, in that situation the accounts will not show
the transaction that has been done and it might be that
that transaction has already resulted in cash having
changed hands. My Lord, does that mean there's
a problem in Horizon? Is that the result of a bug which
is a matter of some criticism? My Lord, the answer is
no because what Horizon does have is a system which
enables the transaction that hasn't been recovered to be
identified and your Lordship will see from the witnesses
who are addressing this issue, Mrs Burke for example,
that the unrecovered transaction was actually
specifically identified to her and your Lordship will
also see that Post Office, because of its own
reconciliation processes, was aware of it and was able
to deal with it and Mrs Burke's -- or rather Mr Burke's
branch did not suffer a lasting loss as a result of what
happened on that day.
So, my Lord, those are just two very broad examples
of mechanisms in place that have a tendency to reduce to
an even smaller level the risk of lasting discrepancies,
lasting shortfalls being inflicted on branch accounts as
a result of bugs.
But to take a step back, the critical point I would
like to address your Lordship on is that it is not
helpful simply to ask the question whether it is
possible that there are bugs out there which affect
branch accounts. We know it is possible. The question
is, the interesting question for your Lordship is
whether bugs are likely or unlikely to affect a given
set of branch accounts in a given month in a given
breach trial and, my Lord, on that question possibility
is not the same as probability. You can't simply say
"Well, it's possible it happened", that's not enough.
Now, in their submissions the claimants at times
appear to recognise this, but neither they nor their
expert Mr Coyne acts on it. My learned friend took
your Lordship to paragraph 17 of the claimants' opening
submissions this morning. Perhaps we could have another
look at that. It is at {A/1/9}. The claimants say:
"As to the precise wording of the issues, the
claimants previously made clear that they consider the
wording of some of the issues insisted upon by
Post Office to be unhelpful, but their inclusion was
ultimately agreed by the claimants in order to reach
agreement with Post Office. Post Office had very clear
views on two particular points.
"First, on issue 1 (Robustness): Post Office was
insistent on including this issue, formulated by the
defendant is whether Horizon is 'robust' and 'extremely
unlikely' to cause shortfalls. This reflects language
pleaded in [the defence], and indeed 'robustness' has
been one of Post Office's 'narrative boxes' and
a favoured term in Post Office's public relations
pronouncements ... Coincidentally or otherwise, it has
also featured in the NFSP's defence of Post Office
relied upon by Mrs Van den Bogerd. However, as the
claimants made clear in their [reply], whereas the
claimants' is that it is relatively robust and has
become more robust over time - but not so as to be an
answer to the Claim (and in so far as 'robustness' has,
in this case, a sufficiently clear meaning – addressed
further herein). The combination of Horizon's admitted
imperfections (and discovered bugs and remote access)
and the volume of many millions of transactions, 14 is
entirely consistent with the levels of errors reflected
in the Claimants' case."
My Lord, two points are being made in that
paragraph. The first one I can deal with quickly. It's
that the claimants' own case is that Horizon is
relatively robust.
The second point is that the combination of admitted
imperfections -- and I apprehend my learned friend would
now say the impressions that have been shown as a result
of Mr Coyne's analysis -- and the volume of the many
millions of transactions that are done through Horizon,
is consistent with the level of shortfalls in relation
to which the claimants make their claims in this
litigation.
My Lord, as to the first point, it is simply wrong.
Mr Green has shown you paragraph 37 of his reply, that's
at bundle {C3/4/21}, where it is specifically denied
that Horizon is robust. So on the pleadings at least it
is not the claimants' case that Horizon is relatively
robust, the claimants obviously don't like that, but
after seeing the expert evidence the claimants, as
I apprehend Mr Green, are now admitting the central
issue which was previously denied. In my submission
that's a major achievement from having this trial. In
my further submission it is the opposite of unhelpful to
have raised it as an issue in this trial.
My Lord, the second point -- perhaps we could look
at paragraph 37 -- well, we can pick it up in
paragraph 17.2. What the claimants are saying is that
the relatively small chance of bugs in Horizon, because
of the volume of transactions undertaken in Horizon, is
likely they say to produce the very picture that's
reflected in the claimants' case.
Now, what's important to understand about that is
that the claimants are relying on the concept of
likelihood to support their case, so, as in my
submission they have to, they are groping towards
a numbers argument, the very kind of numbers argument
that Dr Worden makes in his reports and about which they
have so many critical things to say in their
submissions. They say that the level of bugs in Horizon
is likely to reflect the fact of the claimants' case.
But what's entirely unstated in their evidence is how
the level of bugs encountered in Horizon is likely to
produce anything like the £18.7 million of shortfalls
that the claimants say should not have been included in
their accounts. My Lord, and it is unsupported by their
expert who refuses point blank to engage in any
numerical analysis at all and yet at the same time they
criticise Dr Worden for trying.
So in my submission, my Lord, the claimants are in
an awkward position. In making the case which I have
just referred to in paragraph 17.1 they are engaging in
an intellectual process which their own expert refuses
to engage in and which when Dr Worden tries to engage in
it they then criticise him.
The best that they can say is that having found 29
bugs it is possible that other bugs have arisen, but
they won't say anything about how likely it is other
bugs have arisen, how big the effects of those bugs are
likely to be, they won't engage in any kind of questions
of that sort at all.
Now, in their submissions the claimants say that
they will challenge Dr Worden's numerical analyses.
That is to be welcomed. It will assist your Lordship to
assist the soundness of his calculations. At the moment
there is no engagement really by Mr Coyne with any
questions of likelihood or extent, there are just some
criticisms made of some of the assumptions that
Dr Worden makes in his report.
Now, it is worth noting that Dr Worden has a number
of different calculations, some of which are more
complicated and some of which involve more assumptions
than others. Let me just deal with one very simple
calculation. This requires no understanding of
statistics or mathematics. It is set out in section 8.5
of Dr Worden's first report which starts at {D3/1/148}
and it has changed a little bit in Dr Worden's second
report but we don't need to address that in any detail
at this stage.
MR JUSTICE FRASER: I should just tell you for interest I do
understand mathematics and statistics. I'm not being
funny, but I do.
MR DE GARR ROBINSON: No, that's very helpful, my Lord.
I thought I did, my Lord, I have several maths A-levels,
but I realised that my own sense of my own mathematical
abilities was rather greater than it turned out to be.
MR JUSTICE FRASER: I mean this one is just a simple
multiplication, isn't it?
MR DE GARR ROBINSON: Exactly.
MR JUSTICE FRASER: I think most school children would
probably follow this one.
MR DE GARR ROBINSON: Exactly. It is one I understand:
Over the period 2000 to 2018 the Post Office has had
on average 13,650 branches. That means that over that
period it has had more than 3 million sets of monthly
branch accounts. It is nearly 3.1 million but let's
call it 3 million and let's ignore the fact for the
first few years branch accounts were weekly. That
doesn't matter for the purposes of this analysis.
Against that background let's take a substantial bug
like the Suspense Account bug which affected 16 branches
and had a mean financial impact per branch of £1,000.
The chances of that bug affecting any branch is tiny.
It is 16 in 3 million, or 1 in 190,000-odd. The chances
of affecting a claimant branch are even tinier because
the claimant branches tended to be smaller than ordinary
branches. One could engage in all sorts of
calculations, but your Lordship may recall from
Dr Worden's second report that he ends up with
a calculation of a chance of about 1 in 427,000-odd. So
for there to be a 1 in 10 chance for a bug of this scale
to affect one set of monthly account for a claimant
branch, one would need something like 42,000 such bugs.
Of course there's a much simpler way of doing it
which really is just a straight calculation. There have
been 3 million sets of monthly accounts so the chances
of the Suspense Account bug affecting any given set of
monthly accounts is 60 in 3 million or about 5 in
a million, so to get a one in 10 chance of such a bug
you would need to have 50,000 bugs like it.
But, my Lord, all the roads lead to the same basic
result which is that even for a significant bug of that
sort, the number of bugs that would need to exist in
order to have any chance of generating even a portion of
the losses that are claimed by the claimants would be
a wild number that's beyond the dreams of avarice. It
is untenable to suggest that there are 40,000 or 50,000
bugs of that scale going undetected in Horizon for
20 years.
Dr Worden explains that in paragraphs 643 and 644 of
his first report and the reference to that is
{D3/1/152}. And it is interesting, my Lord, that the
claimants very sensibly do not suggest that there will
have been bugs of that scale in that number operating --
lurking secretly in Horizon for the last 20 years and
they don't suggest it because they can't. It's a matter
of common sense. And in my respectful submission just
that calculation demonstrates that the claim made at the
end of paragraph 17.1 of the claimants' submissions is
untenable. A combination of Horizon's impressions with
the volume of transactions done in Horizon is not
entirely consistent with the errors reflected in the
claimants' case. In my respectful submission it is
obviously inconsistent with that.
Just to be clear, that's not to say that a claimant
could not have been hit by a bug. As I hope I have made
clear to your Lordship, Horizon is not perfect. It
remains a possibility, but the important point is how
unlikely it is. But of course the question of whether
an individual claimant has suffered an impact as
a result of a bug is not a point for this trial. That
is a breach issue to be dealt with in an individual
case. This trial is about setting a baseline for
Horizon's reliability, not a final conclusion that will
govern every single breach case that comes before
your Lordship.
Now, before addressing the expert reports on
robustness it is worth noting the large measure of
agreement that now exists between the experts. There is
no dispute about the architecture or capabilities of
Horizon. There's no suggestion that Horizon lacks
important capabilities or that it doesn't generally
perform satisfactorily. There is no suggestion of any
systemic problem lurking in Horizon.
In short, it is accepted that Horizon works well for
the overwhelming majority of cases and consistently with
that it is now common ground between the experts that
Horizon is robust and that its robustness has improved
over time and your Lordship already has the reference,
it is the joint statement, the third joint statement,
page 2, {D1/4/2}.
Now, what does relatively robust mean? It means
robust as compared with comparable systems -- big
systems, systems that keep aircraft in the air, that run
power stations and that run banks.
My Lord, by the same token it is common ground that
the Horizon is not infallible. It has and will continue
to suffer faults every now and then. Sometimes, in
a really small number of cases, those faults will have
an effect on branch accounts, but it should be
remembered that robustness is not just about preventing
bugs from appearing in the first place, it is also about
limiting the lasting detrimental effects when they do
appear.
Your Lordship will hear evidence that bugs affecting
branch accounts are given a high priority when they are
addressed by Fujitsu. They are not ignored. And,
my Lord, the evidence also shows that bugs which have an
effect on branch accounts occur only very rarely indeed.
There is a dispute between the experts as to precisely
how rarely, but in the context of a huge system that's
been in continuous operation for 20 years, that dispute
in my submission does not have a material bearing on the
outcome of this trial. In the overwhelming majority of
cases, branch accounts will not contain a shortfall
caused by a bug and the scale of bugs that would be
needed to undermine that simple fact would be enormous.
Putting the point another way, the difference now
being played out between the experts is at the margins.
They accept that there are imperfections in the Horizon
system with the result that in some rare cases bugs
affecting branch accounts occur and will not be
immediately fixed. The issue between them is how slight
are the relevant imperfections.
The scale of this difference is magnified by the
adversarial process but in the scheme of things, in my
submission, it is in fact tiny and to plagarise
Lord Justice Lewison in section 1 of his first chapter
in the interpretation of contracts, the lazy reader can
stop here.
My Lord, we say that what is already common ground
between the parties means that the claimants must fail
in their primary endeavour to persuade the court to draw
the inference or make the presumption that they want
the court to make or to draw or make, to the effect that
when faced with a shortfall in a set of branch accounts
the shortfall was caused by a bug in Horizon.
Now, against that background let me say a few words
about the experts. The claimants submissions are most
unfair to Dr Worden. Your Lordship will see those at
{A/1/33}. First of all, it is quite wrong to accuse him
of bias. He is an independent expert whose views are
his own. He is not a mouthpiece for Post Office's case
and the claimants should not be suggesting that he is,
as I see that they appear to do in their submissions.
Secondly, the submissions give the impression that
Dr Worden's analysis is limited to the three admitted
bugs that -- the three bugs that were discussed with
Second Sight and that were then the subject of the
pre-action correspondence and your Lordship gets that
from paragraph 156 of their submissions {A/1/54} where
they say:
"Dr Worden's analysis extrapolates from only three
bugs which happen to be those previously acknowledged by
Post Office. It appears that Post Office had not
disclosed to him the existence of other bugs, which he
could not have taken into account."
My Lord, that is an unfair and incorrect account of
the evidence that's given by -- or will be given by
Dr Worden.
If your Lordship would go to Dr Worden's first
report, annex D -- and, my Lord, it starts at
{D3/2/95} -- your Lordship will see a very lengthy
appendix which describes itself as containing:
"... some tables of KELs which are referred to in
the report. The tables are:
"First a sample of 30 randomly selected KELs
(selection of every 100th KEL in alphabetically sorted
list), with commentary on the robustness countermeasures
which acted in the case of each KEL, as well as its
potential financial impact."
Then secondly:
"62 KELs mentioned in Mr Coyne's report, for which
I have also analysed which robustness countermeasures
applied and analysed the possible impact on branch
accounts."
Third:
"A further sample of 50 randomly selected KELs (also
every 100th KEL in an alphabetically sorted list) which
I have analysed for possible financial impact, but
I have not tabulated my analysis for robustness
countermeasures."
And fourth:
"A sample of 50 KELs which each include the symbol
'£' in their text - because in my opinion, this makes
them more likely to be concerned with possible financial
impact on branch accounts."
So your Lordship will see that Dr Worden was not
simply looking at the three admitted bugs and then
performing all sorts of mind games on the basis of those
bugs, nor did he overlook and ignore the Dalmellington
bug which Mr Green addressed your Lordship on this
morning; he looked at all of them. He looked at more
than just the bugs that were identified by Mr Coyne, he
took random selections and he tried to use a form of
searching which would disclose bugs that were more
likely to have a financial impact on branch accounts.
So, my Lord, that's a first point I should make to
your Lordship. It would be quite wrong to proceed, as
I apprehend my learned friend would have you proceed, on
the basis that Mr Coyne has done an in-depth analysis of
the problems in Horizon, whereas Dr Worden has just
looked at some pretty pictures about three admitted
bugs. That isn't what Dr Worden did at all.
My Lord, the second point I should note is that in
his second report Dr Worden increased the number of KELs
and PEAKs that -- I should say he looked at the
associated PEAKs as well, he didn't just look at KELs --
he increased the number of samples that he reviewed to
200.
And thirdly I need to make it clear to your Lordship
that the review that he conducted was thorough, we say
much more thorough than Mr Coyne's review. What
Mr Coyne intended to do -- this will be obviously
investigated with the witnesses -- is Mr Coyne tended to
find phrases in particular documents that indicated
a problem and he would stop there. He didn't,
for example, seek to ascertain in JC1, in his first
report, he didn't seek to ascertain whether any
particular bugs would actually have a branch effect at
all. That's not the exercise that he did. What he did
in his first report was just find as many problems as he
could. But what Dr Worden did was he considered both
potential branch impact and he considered the operation
of the countermeasures in practice.
Your Lordship will apprehend that Dr Worden is
criticised for engaging in some kind of armchair
analysis of countermeasures on the basis of design
aspirations. My Lord, that characterisation is quite
unfair, we would say. But more importantly what
Dr Worden did is that he looked at the operation of the
system, the PEAKs and the KELs relating to particular
problems, and he looked to see how the countermeasures
he had identified he had seen built into the system, how
those countermeasures worked in any particular case.
My Lord, that's an important function to perform if one
is engaged in the process of seeking to obtain
a balanced view of the robustness or otherwise of an IT
system and it is important to note that it is not
something that Mr Coyne did at all, certainly not in his
first report. Even in his second report he goes no
further than saying "Well, there are some bugs which
were missed by the countermeasures." Well, my Lord, so
there are, of course there are going to be bugs that get
missed by all countermeasures. It is not suggested that
it is impossible for bugs to arise which have a lasting
impact on branch accounts. The critical question is how
likely it is that such bugs will lurk in the system and
be undetected in the way that the claimants would have
you find.
It is in that respect worth noting that Dr Worden
found more bugs with non-transient branch impacts than
Mr Coyne did in his report and your Lordship will see
that from our opening submissions at paragraph 219.3 and
for your Lordship's note the reference is {A/2/76}.
Your Lordship will be aware that of the 29 bugs that
are now listed in JS2, Dr Worden thinks there is
evidence to suggest there may be up to 12 bugs that had
a non-transient financial effect on branch accounts. Of
those 12 it is worth noting that Dr Worden identified
five of them.
So this is not a case, my Lord, where some kind of
blindfold -- the picture that my learned friend seeks to
paint of the process that Post Office went through and
the process that Dr Worden undertook in arriving at his
report was one in which he was blindfolded by
Post Office and somehow stumbled into providing
a positive report which just considered the three bugs
that Post Office had already identified. My Lord,
that's simply a travesty of the true facts.
On the basis of the documents he reviewed, Dr Worden
took a balanced view of the design of Horizon and its
countermeasures and of the operation in practice of its
countermeasures as evidenced by PEAKs and KELs and
associated documents. My Lord, and he also took
a balanced view of the service history of Horizon, the
support function provided by Fujitsu and its efficiency.
Now, that will be a battleground in the rest of this
trial, I know, but even the documents that your Lordship
saw this morning with the Dalmellington bug,
your Lordship will see the rigour that's applied.
There's concern that postmasters aren't given advice
that might be incorrect. The rigour associated with
that process and the determination of Fujitsu and the
other people involved, the other stakeholders, to get to
the bottom of what happened is quite striking in my
submission.
In relation to the Dalmellington bug they did get to
the bottom of what had happened. They identified 112
potential branches with financial impact, 108 of which
had been fixed or made good. Of the other four only two
had a significant problem and, my Lord, of those two
further research showed that those two branches were not
actually affected by the Dalmellington bug at all, they
just had similar symptoms that were the result of an
entirely separate cause and that were fixed entirely
separately and my learned friend gave you I think the
reference to the document which shows that.
So by January 2016 the Dalmellington bug had been
fully investigated and it was quite clear what the
results of that bug were and my learned friend seeks to
suggest that there was more investigation to be done and
that Post Office somehow stopped that further
investigation being done. That's not right at all.
By January 2016 Dalmellington had been fully analysed
and its consequences bottomed out and my learned friends
took your Lordship to a number of emails from
Post Office, they were from July 2016, six months later.
So, my Lord, Dr Worden's conclusion is that Horizon
is well designed and well supported by a team of people
who have been working on it from the start and who are
very thorough when investigating possible bugs and
your Lordship will I'm sure bear in mind Mr Parker's
witness statement where he says that they would keep
going until they spotted the problem. My Lord, that's
Mr Parker's second witness statement at paragraphs 20 to
23 and for the transcript it is at {E2/12/7}.
Now, contrast the work that Dr Worden did with the
work that Mr Coyne did. In the first joint report
before the experts even did their work on -- produced
their reports, he said that he was going to look for
bugs. And the reference is {D1/1/3-4}. Now, of course
both parties were looking for bugs, but Dr Worden, as
I say, found more branch-affecting bugs than Mr Coyne
did with lasting effects. But, my Lord, Dr Worden tried
to do more than that. He tried to take a balanced view
of how Horizon operated in practice and how well its
countermeasures operated in fact and that is something
that Mr Coyne didn't do and as a result it shows a want
of quality of his analysis, we would submit.
Now, let's look at the bugs in issue. Could I ask
your Lordship to go to bundle {D1/2/3} which is the
joint statement, the second joint statement. If we
could pick it up at page 3, my Lord. Now, it is a long
table. It looks as if the experts are moving away from
each other, but in fact it's a very useful list. This
represents the first opportunity the experts have had to
identify where they agree and where they disagree on
these bugs and to explain what they say about them. I'm
not sure how we would have managed if a document like
this hadn't been produced.
It is worth bearing in mind how we arrived at this
list of 29. Your Lordship will see the heading "Table
of bugs/errors/defects with acknowledged or disagreed
evidence of financial impact". Mr Coyne's first report
didn't specifically look at branch-affecting bugs. His
report was more a catalogue of bugs of all sorts and all
shapes and sizes. It was a scattergun analysis. A few
of the bugs that he identified at great length were
branch-affecting.
Now, it was Dr Worden who looked for
branch-affecting bugs and in his first report he noted
what Mr Coyne had done and what he had not done. The
result was that Mr Coyne responded in his second report,
which starts at {D2/4/1} and in his second report -- and
my learned friend took you to it this morning -- at
paragraph 3.21 of that report he set out a table
consisting of 22 bugs, of which 21 were said to be
branch-affecting and, my Lord, the reference is
{D2/4/15}.
Several of those bugs had not been seen before, had
not been mentioned before. So in JR2, this was the
first opportunity that Dr Worden had to comment on and
address those bugs and through discussion between the
experts, seven additional bugs were added to the list.
Bugs 23 to 26 are bugs that are referred to in
paragraph 742 of Dr Worden's first report, the reference
to which is {D3/1/170} and these are identified as
potentially branch-affecting bugs and those were added,
they were not already part of Mr Coyne's 22 bugs.
Bugs 27 to 29 were added as a result of discussions
between the experts.
So if we look at the heading of the table, bugs with
acknowledged or disagreed evidence of lasting financial
impact {D1/2/3}. So I think we are intended to take it
that this is a table consisting of 29 bugs which
Mr Coyne says all have financial impact.
It is acknowledged that there is evidence in 12
cases for lasting financial impact and the ones where
they are acknowledged, my Lord, just for your note, it
is bug 1, which is a receipts and payments mismatch and
your Lordship will see from Dr Worden's comments that
a subpostmaster report wasn't necessary for that bug.
Bug number 2, that's the Callendar Square bug. Bug
number 3, that's the Suspense Account bug. And,
my Lord, not Dalmellington because that would have been
picked up as a normal remming reconciliation as night
follows day.
By the way, contrary to the suggestion that the
claimants at points make in their submissions, Dr Worden
did analyse that bug in his first report.
Next is bug number 10 which is a Data Tree build bug
which occurred very early in 1999, right at the
beginning of Horizon. It was very noticeable, says
Dr Worden, and very quickly fixed.
Bug number 13, "Withdrawn stock discrepancies" and
it may be worth noting that Dr Worden's opinion that it
wouldn't have lasted very long.
Bug number 14, bureau discrepancies. Bug number 18,
concurrent log-ins. Again that's a very early one in
1999, 1999/2000. Bug number 23, bureau de change. Bug
number 24, wrong branch customer change. Bug number 25,
like a top-up. Bug number 27, TPS. And bug number 28,
drop and go.
My Lord, it is worth noting that there is a link to
JR2. I would invite your Lordship to look at that link
in due course. It is a link in which Dr Worden includes
an assessment of the financial impact of those 12 bugs
with his own base estimate and then a more generous,
a more conservative estimate -- he describes it as
conservative anyway -- favouring the claimants.
In fact could we look at that. It is the link to
JR2 which is {D1/2/1}. It might not be possible,
perhaps not. Your Lordship can do it on Magnum anyway,
your Lordship will see there is a link --
MR JUSTICE FRASER: Is that the one-page document?
MR DE GARR ROBINSON: It is two pages.
MR JUSTICE FRASER: Is it? I thought it was one page.
MR DE GARR ROBINSON: My Magnum seems to be disappeared. In
any event --
MR JUSTICE FRASER: The mean impact spreadsheet?
MR DE GARR ROBINSON: Yes and then there is a second page
which is his comments on it. So if your Lordship looks
at the comments he says:
"This is an estimate of the mean financial impact on
all branches across the Post Office network ..."
MR JUSTICE FRASER: The link is just coming up with the
spreadsheet.
MR DE GARR ROBINSON: I see. There should be a second tab
to the spreadsheet. Is that not there?
MR JUSTICE FRASER: I'm not sure that's loaded on, because
I did have a look for this. I have seen this and
I haven't seen any text that goes with it.
MR DE GARR ROBINSON: I downloaded it from Magnum yesterday
but it may be that it hadn't quite got --
MR GREEN: There is an "Explanation" tab, if you mean the
one on there.
MR JUSTICE FRASER: I see. You can't see it at the bottom
of the screen.
MR DE GARR ROBINSON: I see. Does it go on forever?
MR GREEN: No, the "Explanation" tab.
MR JUSTICE FRASER: I've got it now. Is that the one -- it
has 13 cells with text in and the first says "This is an
estimate".
MR DE GARR ROBINSON: Yes. Can one click on the explanation
of calculations on the second sheet?
MR JUSTICE FRASER: I think on Magnum the tab has dropped
off the bottom of the common screen but there is
a second page -- well, I've got mine up anyway,
Mr De Garr Robinson.
MR DE GARR ROBINSON: I'm very grateful to your Lordship.
Your Lordship will see the first paragraph Dr Worden
explains that he has estimated the mean financial impact
and he has given his central estimate in relation to 12
bugs. Second paragraph he says:
"For each of these bugs the table contains a very
approximate estimate of the financial impact of the bug
if that impact had not been corrected by Post Office in
some way ..."
And your Lordship will appreciate I say that's a big
"if":
"... and my estimate of the probability that any
financial impact would have been corrected. My central
estimate of impact on the SPM reflects that probability
whereas my conservative estimate does not."
Then he says:
"As can be seen from the table, my opinion is that
the larger financial impacts would have been corrected
with high probability. Smaller financial impacts might
not have been corrected."
If your Lordship goes back to the table
your Lordship will see there is a column -- the 12 bugs
are identified that I have listed to your Lordship with
the associated KELs where there is one. There's an
estimate of financial impact column. Then there's
a probability that the postmaster was compensated column
and then there's Dr Worden's estimate of loss to
postmasters and then on the final column there's a loss
to postmasters assuming that none of them were made good
during reconciliation or other processes. So
your Lordship sees --
MR JUSTICE FRASER: When you say "made good" though I think
you need to be clear what you mean because "made good"
has a technical meaning in terms of the accounting.
I think you mean remedied.
MR DE GARR ROBINSON: I mean where there is a financial
discrepancy caused in the accounts that discrepancy is
corrected by some kind of financial transaction.
MR JUSTICE FRASER: Yes. Because making good under the
accounting system meant the SPM paying it in.
MR DE GARR ROBINSON: I'm so sorry. You are ahead of me.
MR JUSTICE FRASER: That's why I'm just checking.
MR DE GARR ROBINSON: It is the common issues trial
nomenclature that I have to be careful of.
MR JUSTICE FRASER: But that's what you meant when you
explained how you did just then. I understand.
MR DE GARR ROBINSON: Yes.
Your Lordship will see that Dr Worden's previous
estimate had been £1,000. He increased that to £2,029.
That's per SPM. But in the other column your Lordship
will see "Total impact" of all these bugs was £165,000,
mean impact per SPM who was affected, £13,800 and that
compared with his previous estimate of £6,000. So the
figures have gone up a bit and as he explains in his
commentary it is mainly because of the Data Tree build
bug, the 1999 bug, of £105,000.
Your Lordship will see it is those sort of figures
that then lead one to the calculation I explained to
your Lordship before which leads one to a requirement of
tens of thousands of these bugs in order to have any
hope of being responsible for even a relatively small
portion of the £18.7 million claims made by the
claimants.
So that's the agreed bugs.
As regards the disagreed bugs, a number of short
observations that I would like to advance to
your Lordship.
First of all, Mr Coyne refers to bugs where there
was no bug at all in the PEAK he has cited. This is
something we will explore with him. For example, bug
number 17 relates to branch customer discrepancies in
Legacy Horizon. This was not caused by a bug in
Horizon. The system crashed part way through
a transaction for an unknown reason and then it was
successfully detected and the missing transaction was
recovered. I explained to your Lordship before how the
recovery system works to identify transactions that may
have been missed. That's not an example of a bug,
that's an example of Horizon working. And it is worth
noting, my Lord, that this issue was spotted not as
a result of any human intervention by a subpostmaster,
it was spotted as a result of an automated report that
was available to Fujitsu.
My Lord, secondly, Mr Coyne includes bugs, we say,
which were only found in testing and didn't make it into
the live system. An example of that is bug number 21,
dealing with transaction corrections issues. He makes
a reference to one particular bug referring to a PEAK at
{F/314/1}.
The important point to note about this bug is that
it was eradicated before the relevant software even
reached the live system. It was spotted in testing.
That's what testing is for.
My Lord, a third point observation to make is that
Mr Coyne includes bugs which have automatic fixes which
Mr Coyne himself acknowledges. I have referred to
remming in my opening already. Just one example would
be bug 5. It was a remming in issue. Mr Coyne's own
analysis correctly records that this could cause
a duplicate pouch of cash to be remmed in by the user
causing a shortfall, but what he doesn't say is that
Post Office's reconciliation processes check the pouches
sent out by Post Office and pouches received by the
relevant branches, an automatic report is run which
defects all sort of remittance discrepancies whether
caused by user error, bugs or otherwise and then
transaction corrections are generated to correct the
problem. So it may be a bug, but, my Lord, it's a bug
which in the ordinary course of things is almost never,
if ever, going to result in a lasting loss to any
subpostmaster.
Finally, there are some bugs which both experts
agree had no financial impact, or at least one bug.
My Lord, that's bug 21. So perhaps the heading to the
table in the joint statement should be corrected. It's
not 29 bugs that are said to have financial impact, it
is 28.
But whether it is 12 or 28, my Lord, does not
matter. In a system handling the volumes of transaction
that Horizon handled, which was used by the number of
branches that used it, over a period of 20 years, bugs
of this number and scale can have no material impact on
the overall robustness of Horizon, or putting the point
more pertinently, the chances of one of these bugs
affecting a given set of accounts is vanishingly small.
Even if you sum them all up, the chances of any one of
these bugs affecting a given set of accounts is
vanishingly small.
So what are we left with? We are left with
a suggestion that it is possible that there are other
undetected bugs in the system which may have an effect
on branch accounts but, my Lord, as I have said
possibility is not the same as probability. Mr Coyne
does not say anything about probability. He makes no --
in fact he disclaims any ability to make any inferences
about how many bugs there are, what their scale is
likely to be and what their impact is likely to be.
Now, in my respectful submission that is the
approach which is not helpful. Mr Green and Mr Coyne
describe it, in my submission rather curiously, as
a bottom-up approach. It might be more accurate to
refer to it as a bottom-down approach. Mr Coyne stays
at the bottom, sticks just with the bugs that he has
found and says nothing more, nothing about the
implications of those bugs on the overall robustness of
the Horizon system. He refuses to say anything on that
question, so we are left with his agreement that the
Horizon system is robust.
So he doesn't grapple with the critical question
whether the court should infer or presume that the
shortfall is shown in any given branch accounts was
caused by a bug, my Lord, and it is not a realistic
approach either. My Lord, it is common ground that if
you have a bug it may well have a range of impacts, some
may be smaller, some may be larger, some may affect more
than one branch, but in the scheme of things where you
have a bug which has different effects on different
people, one has to ask oneself what are the chances of
that bug evading any detection by anyone as a result of
any of its impacts at any time? That's always going to
be relatively low. And if one were to postulate a tiny
bug which had an impact of a few pence, my Lord, there
would need to be millions of those bugs in order to
begin to be significant, to have a significant bearing
on the robustness of Horizon.
In the real world we are concerned with bigger bugs,
with a wider range of impacts, such as the
Suspense Account bug and I ask forensically or
rhetorically: how likely is it that there are tens and
tens of thousands of such bugs lurking in the system,
escaping detection for year after year? In my
submission the answer is obvious.
My Lord, before -- I perhaps have a few minutes just
to address one point that has a bearing on robustness
before moving on. Your Lordship will see both in the
claimants' submissions and in Mr Coyne's report
frequently repeated assertions that Post Office operated
in accordance with the cost-benefit analysis. I think
the impression is sought to be achieved that because
Post Office addressed some problems by adopting
a cost-benefit analysis, this means that the procedures
in place for dealing with or identifying bugs and fixing
them and so on were not robust, that there was some kind
of threat to the system because Post Office was cutting
corners or something like that. But, my Lord, one needs
to be careful with the evidence that is cited in support
of these claims. Many of the claims of this sort rely
on two or three pieces of paper, no more than that.
It is worth looking at one example of the evidence
that's relied on in this case. My Lord, it is the claim
in paragraph 144.1 of the claimants' submissions
{A/1/50}. I don't know if your Lordship has a hard copy
of it there.
MR JUSTICE FRASER: I do.
MR DE GARR ROBINSON: Your Lordship will see the claim made
in 144.1:
"It has been identified that known issues/bugs were
often deferred and dealt with on a cost-benefit basis."
So your Lordship will see the point and
your Lordship will see exactly what they are trying to
make of the point.
Footnote 105 refers to a paragraph in Mr Coyne's
first report, paragraph 5.161. That paragraph refers to
a document which is at {F/11/40}. This is minutes of
a risk and compliance committee on 16 September 2013 and
your Lordship will see the attendees. If I could ask
your Lordship to go forward --
MR JUSTICE FRASER: Were any of those attendees legally
qualified?
MR DE GARR ROBINSON: I'm so sorry?
MR JUSTICE FRASER: Are any of those attendees legally
qualified?
MR DE GARR ROBINSON: My Lord, I'm not in a position to
answer that question.
MR JUSTICE FRASER: Maybe you could just find out because
that might affect what I do in terms of ordering
a review of the redactions, that's all.
MR DE GARR ROBINSON: My Lord, I should tell your Lordship
that questions have been raised about redactions and
a further review has been undertaken by my instructing
solicitors and also by junior counsel --
MR JUSTICE FRASER: It has been done already, has it?
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: All right. I assume the result of that
review was that they were properly redacted?
MR DE GARR ROBINSON: The result of the review is that there
are a relatively small number of cases where a different
judgment call has been made, usually where one can see
why a different decision was made, but in the main the
redactions have remained.
My Lord, I can tell your Lordship that
Susan Crichton was general counsel.
MR JUSTICE FRASER: Susan Crichton.
MR DE GARR ROBINSON: Who is the first attendee. In fact
the chair.
MR JUSTICE FRASER: Can you just -- not now, because I don't
want to know now, but can you just identify for me on
how many separate occasions the review led to disclosure
being made where they had previously been redacted,
following the review you have just told me about. Not
now.
MR DE GARR ROBINSON: I will find out.
If we could go forward to page 3 {F/1140/3} the
document says:
"It was reported that following the recent Ernst &
Young external audit four risks [have] been identified.
Three of the risks raised had been addressed, however
the final risk, relating to the communication by Fujitsu
of changes made to the Horizon system, was still
outstanding.
"It was identified that it would cost over
£1 million to implement the mitigation being suggested
by the audit and that this was not proportionate to the
risk being managed."
And the decision made was that:
"The committee agreed that the risk be accepted with
Dave Hulbert as the owner and Lesley Sewell being
ultimately responsible."
My Lord, this is evidence that is asserted by
Mr Coyne and adopted by the claimants as evidence that
known issues/bugs were often deferred and dealt with on
a cost-benefit basis. So you will see how high the
claim is put, but it is worth looking at the Ernst &
Young report that's referred to. My Lord, that's at
bundle {F/1127}, or rather a committee meeting which
considers the Ernst & Young recommendations. This is
a risk and compliance committee meeting relating to the
acceptance of risk following Ernst & Young audit of
2012/2013. "Purpose":
"The purpose of this paper is to:
"Update the risk and compliance committee to a risk
that IT&C have 'accepted' following the 2012/13 Ernst &
Young IT audit.
"Background.
"2.1. The 2012/13 Ernst & Young IT audit found no
significant exceptions but did identify a small number
of improvement opportunities. Four high level
improvement opportunities were recorded. Three have
progressed and are either complete or in the process of
completing. For one, IT&C believe we have sufficient
process and mitigation in place to accept this risk.
This paper is to highlight this decision to the Risk &
Compliance Committee."
And paragraph 2.2 reads:
"The specific observation was with regard to change
management monitoring control. The actual observation
read 'management should make use of a system-generated
list of changes in performing the monitoring control to
further enhance its effectiveness'."
2.3:
"The risk being that changes may be made to the
system that are not approved and not found through
monitoring."
So it's a process suggestion, my Lord, it's not
something that has any bearing on the quality of any
changes to the system.
3:
"The Post Office service management team currently
monitor IT system changes on a monthly basis by
cross-referencing known and approved changes against
a list produced by Fujitsu. E&Y observed that this
could be enhanced if the list was generated by the IT
system rather than by change records.
"IT service management engaged with Fujitsu to
understand how this could be achieved and it was
concluded a very difficult and potentially expensive
approach to adopt this as all changes are recorded as
'events' within the IT system of which there are
multiple thousands per day with changes only being
a small percentage. The cost and difficulty in
extracting these specific change events on a regular
basis would outweigh the value in monitoring the
change."
So the options considered were:
"1. Continue with the existing approach of using
a list generated by the change records."
Or:
"2. Develop an approach with Fujitsu to generate
a list from the IT system of events."
And then over the page, my Lord {F/1127/2} the
proposal at paragraph 5:
"To continue with the existing process of monitoring
but to additionally raise this as a risk within IT&C and
to monitor any exceptions found through the existing
process. If exceptions are found then reconsider the
proposal from E&Y and assess the impact of the change
versus the benefit."
And, my Lord, if we then go down to paragraph 7 "Key
risks/mitigation":
"There is a risk that some changes may not be
monitored using the existing process. In mitigation of
this, the current process has never uncovered any
changes that have not been monitored and that is
supported by the annual IT audits by Ernst & Young."
So, my Lord, that's the decision. That explains
what the proposal was, how carefully it was considered
and what the conclusion was. That is not evidence for
the proposition that when a bug arises, quite often what
Post Office and Fujitsu would do was do nothing because
it costs them money. Your Lordship will bear in mind
Mr Parker's witness evidence in which he said that bugs
with a branch impact were always treated as high
priority.
So, my Lord, obviously I have not made my case just
simply by referring to one document, but I would invite
your Lordship to be cautious when dealing with
submissions of that sort from the claimants and indeed
from Mr Coyne.
MR JUSTICE FRASER: We are probably going to have to have
a break.
MR DE GARR ROBINSON: We are.
MR JUSTICE FRASER: Is now a good time?
MR DE GARR ROBINSON: It is a perfect time, my Lord.
MR JUSTICE FRASER: We will come back in at 25 past and
don't forget at the very end we just have to deal with
that timetable point.
(3.15 pm)
(Short Break)
(3.27 pm)
MR DE GARR ROBINSON: My Lord, having dealt with the
operational issues and robustness I was now going to
move as quickly as I could to remote access. To save
time I'm proposing to take your Lordship to some
relevant paragraphs in our opening submissions and for
that purpose I would invite your Lordship to go please
to paragraph 40 of those submissions, which is at
{A/2/17}. This is a context point. It's a really
really important context point. It's a point that
applies to transaction corrections as well, but for
present purposes I'm making it in relation to remote
access. It is the second order issue that your Lordship
I'm sure will be familiar with now. At paragraph 40 we
say:
"On a number of issues on which Mr Coyne places
considerable emphasis in questioning Horizon's
robustness, Mr Coyne overlooks that they are second
order issues that can only have minimal effect. At best
they represent a very small fraction of a very small
fraction of any cases. Remote access is one such issue.
Transaction corrections are another."
Paragraph 41 reads:
"Taking remote access as an example, the need for
remote intervention affecting branch accounts will
obviously be rare. On any view, the occasions on which
privileged users at Fujitsu have exercised their ability
to remotely inject, edit or delete branch transactions
or accounting entries will represent a tiny percentage
of the relevant transactions/accounting entries. And
the occasions on which they have done so negligently or
dishonestly will, in turn, represent a very small
percentage of those occasions. So, compared with the
volume of business recorded in branch accounts, the
number of cases in which false data will have been
remotely introduced will be extremely small (multiplying
a small chance by a small chance). This is a 'second
order effect' ... which is, by definition, extremely
unlikely to have any significant impact on the
robustness of Horizon."
My Lord, if we take a step back and think again
about the 3 million sets of monthly branch accounts that
have occurred over the last 20 years, I ask rhetorically
how many interventions, insertions, deletions, editing
would one need into branch accounts -- and I emphasise
into branch accounts, not other kinds of remote access,
we're talking about interventions which have an impact
on branch accounts, transactions done in the branch or
stock or cash held at the branch, those kind of things,
how many of those interventions would one need in order
to generate a material risk that any given branch's
accounts are likely to be wrong? You would need
hundreds of thousands because the chances of any
intervention actually being wrong -- all human
intervention is subject to error so there will be an
error rate, or there might be an error rate, but it's
going to be a relatively low error rate on any view, so
one would need hundreds of thousands of those even to
produce the number of interventions that could have even
a small impact on the general body of branch accounts.
The numbers would have to be unimaginably huge for this
to have any material impact on the issues with which
your Lordship will be wrestling in the Horizon issues
trial.
It is hard to overstate the importance of this
point, my Lord. These remote access issues are here
because of concern expressed that Fujitsu -- and we are
only talking about Fujitsu, who are professionals -- was
using its administrator rights in such a way and on such
a scale as to undermine the reliability of the
claimants' branch accounts. And it is vital to
understand, in my submission, that in the real world
this is not going to be an answer to that question, this
is not going to have a bearing on the robustness of the
system and on the reliability of any given branch
accounts in any given month.
So, my Lord, that is a first and in my respectful
submission critical point of context that should always
be borne in mind. There's a sense of unreality. It is
quite understandable, the issues here are quite
eye-catching, my learned friend quite understandably has
developed his submissions as to how the history of this
issue has arisen and how matters have been revealed in
the course of time, one quite understands why he has
done that, but when looking at the history of the case
and when looking at the witnesses and what they say
about remote access it's really important to bear in
mind in my submission that even if the claimants' case
succeeds at its highest, it's never actually going to
have a material impact on the reliability of branch
accounts. That's just not what this activity is about.
MR JUSTICE FRASER: Now, this is the same point I think, is
it not, that where the dispute used to be this couldn't
be done, now the dispute is in theory it can be done but
in practice it never would have been; is that a fair
summary?
MR DE GARR ROBINSON: No, my Lord, I would put it as
follows. If your Lordship would like me to address on
what --
MR JUSTICE FRASER: No, it is just so that I understand
firstly that it's the same point that Mr Green developed
along those lines and secondly if it is the point which
I accurately understand the way you are putting it, it
is that Fujitsu did have the ability to do that but in
practice never would.
MR DE GARR ROBINSON: No, my Lord, I'm going to take you to
this in a few minutes, but let me -- first of all one
has to distinguish between Legacy Horizon and
Horizon Online.
MR JUSTICE FRASER: Correct.
MR DE GARR ROBINSON: Horizon Online, there has been one
occasion when a transaction was inserted into one
branch's accounts at the BRDB, one occasion, and
my learned friend wants it to be more, so does Mr Coyne
and there will be evidence given on that question.
In relation to Legacy Horizon it is different.
There's a complication because whereas with
Horizon Online access was made to a central database, or
server I should say; with Legacy Horizon the data in the
first instance was maintained on server's held at the
branch, or what were called counters. So there there
was an element -- there was a greater complication
because counters held data and counters could go wrong
and they would need backups. Transactions could
sometimes be inserted into branch accounts when there
had been problems. It's a very different process from
the position in relation to Horizon Online and I'm not
seeking to give you a full account of Legacy Horizon,
that's in the evidence and I don't want to be taken to
be summarising it.
There were transactions insertions made into
counters on occasion. There were also occasions when
counters broke and their data had to be basically backed
up from another source. It was called replicating from
another source. And there were variants of those two
processes. My Lord, those were occasions therefore when
it could be said that what we mean by remote access took
place.
So I don't say remote access never took place but
what I say is, take the claimants' case at its highest,
how many occasions of remote access of that sort in
Legacy Horizon would there have to be in order to
generate a material risk to the reliability of any given
set of branch accounts?
MR JUSTICE FRASER: I understand that point and I understand
that's your case and in a way that is central to the
different way in which the two parties are approaching
it and I'm not in any way suggesting that one of those
ways is preferred at the moment. All I was doing was
seeking to establish -- all it comes down to really,
Mr De Garr Robinson, is are you and Mr Green using the
term, or using your broad categorisation in the same
way, that's all.
MR DE GARR ROBINSON: No we're not and that's one of the
difficulties.
MR JUSTICE FRASER: That then brings me on to my next point.
You don't appear to be using the terms in the same way.
MR DE GARR ROBINSON: That is one of the problems.
My learned friend -- and I think Mr Coyne also -- adopts
a construction of the phrase "remote access" which is
unimaginably wide. It includes, for example,
transaction corrections, because transaction corrections
are a process by which Post Office presses a button in
some office somewhere and something pops up on the
screen and then a postmaster has to decide whether or
not to allow that change, which is specifically notified
to the postmaster to allow that change into his or her
accounts. My learned friend treats that as an example
of remote access. That's not how I understand it at all
and indeed it is not how I understand the pleadings.
But it shows your Lordship the width of -- I would say
the lack of utility of the definition that he is seeking
to propose.
I on the other hand have a more practical approach
which is what's this question about? It's about whether
or not people remotely could make changes to branch data
such that their branch accounts would be wrong. There
are all sorts of things that could be done remotely that
would have no impact on branch accounts. You might have
a counter for example in Legacy Horizon that was locked,
there was a binary bit that was on a zero instead of a 1
and it needed to be turned to a 1. There was a process
by which Fujitsu could unlock the locked counters,
locked items of that sort. That had no conceivable
impact on branch accounts. Now, one could call that
remote access if one wanted to, but it's not a relevant
form of remote access.
When I talk about remote access I'm talking about
action taken remotely to either inject new transactions
or to edit existing transactions or to delete existing
transactions in a way that could change the accounting
position of the relevant branch.
MR JUSTICE FRASER: And by Fujitsu only? Because I think
you started this passage by saying only Fujitsu.
MR DE GARR ROBINSON: Yes, only Fujitsu.
MR JUSTICE FRASER: That's very helpful because that defines
for me the way you are using the term.
MR DE GARR ROBINSON: I'm grateful.
MR JUSTICE FRASER: All right, thank you very much.
MR DE GARR ROBINSON: So your Lordship has the second order
issue.
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: As I say, in my submission it
overwhelms everything else. It makes the next
40 minutes really rather -- I don't want to say
irrelevant, that's disrespectful, but of marginal
importance.
My Lord, further points of context I would ask
your Lordship to note. If I could move on in the
submissions to page 83, paragraph 243 {A/2/83},
paragraph 243, headline point, my Lord, irrelevance of
or immateriality -- is that a word, I'm not sure -- of
the suggestion of some master criminal sitting in
Fujitsu's offices manipulating branch data for his
personal benefit:
"Although claimants will probably draw attention to
a dramatic, but only theoretical, possibility of the
malicious alteration of transaction data by a rogue
employee of Fujitsu, there's no evidence that this ever
took place, nor any allegation to that effect. It is
unlikely to assist the court for the parties to engage
in speculation as to what might have happened, in
theory, if there had been some rogue employee who had
abused his or her access rights. If there is any
reason, in a specific case, to think that it might have
happened, that can of course be explored ... but there
is no generic issue as to any malicious alteration of
transaction data."
So again this is a real world point, my Lord.
Your Lordship will see speculation -- well, a discussion
in Mr Roll's witness statements about speculation as to
whether it might be possible to pay a gas bill or make
a bank transfer using the transaction insertion facility
that was available in Legacy Horizon, but that is all it
is, it's just a theoretical possibility that need not
detain the court for five minutes.
And in paragraph 244 we continue:
"The real thrust of claimants' case is that, in the
course of using their abilities to insert, edit or
delete data to correct problems arising in the operation
of Horizon, Fujitsu personnel might accidently have
introduced a further or different error into transaction
data. This is a clear example of what Dr Worden calls
a second order issue ..."
And I have addressed your Lordship on that. As we
say at the end of that paragraph:
"Such second order issues are, for this reason
alone, not viable candidates to explain any significant
proportion of disputed shortfalls."
So having got rid of the master criminal theory and
having made it clear of how peripheral this issue really
is, let's then move on to the position and let's move on
to paragraph 246 {A/2/83}:
"... the picture is complex. There are different
Fujitsu methods for altering different kinds of data
remotely, and Fujitsu's current methods are themselves
different from the tools and methods that are available
under Legacy Horizon. The Fujitsu witnesses have done
their best to recollect, investigate and to some extent
hypothesise as to what may have been possible in the
fairly distant past.
"The picture is also complicated by the fact that
the parties do not agree on what counts as remote
alteration of data."
My Lord, this addresses the question your Lordship
has just asked.
For example, Mr Coyne includes transaction
corrections. Curiously, my Lord, it is worth noting
that although Mr Coyne includes transaction corrections
as a form of remote access, he excludes the predecessor
that applied until 2005, namely error notices. So error
notices weren't, TCs were and the reason he gives for
that is because TCs are electronic, that they were
communicated to the branch through the system rather
than being sent by post. This to him is a major
difference. I say it is a distinction without
a difference.
Then, my Lord, paragraph 248, another red herring to
do with global users. I say red herring, that's perhaps
unfair to my learned friend. There is an issue between
the parties as to whether global user rights could be
exercised outside the branch. It is quite clear that
there were some people who did have the privileges
needed to go into a branch and make changes to the
branch, to use the branch machines if that's what they
wanted to do. That's common ground. There's an issue
as to whether it was possible to use those rights
remotely, go to somewhere else from some kind of central
office at Fujitsu and use your global user rights to
make changes to the branch. My Lord, Fujitsu's evidence
is that that is not possible, but it is challenged by
Mr Coyne and the claimants, so that's an issue that
your Lordship will have to decide.
Then, my Lord, another important contextual point is
in paragraph 249 {A/2/84}. There are complications of
terminology and this is to do with different kinds of
data:
"Mr Coyne discusses the deletion of session data and
the deletion of transaction data as though these were in
essence the same thing. That is misleading. Horizon
holds more than just transaction data; it stores and
tracks a lot of other forms of data that are needed to
make the system operate properly, including data that
does not relate to customer transaction and which does
not affect a branch's accounting position. Session data
is a good example of this: it may well not include
transaction data at all; it can consist entirely of
other types of data associated with a counter session
(such as the data 'flag' that determines whether a stock
unit is locked or unlocked and available for use). The
deletion of data of that kind does not affect branch
accounts and cannot create a discrepancy. It merely
affects the availability of the system to a [postmaster]
or an assistant wishing to perform transactions or
conduct other branch business."
So again it is very important to be clear about what
kind of data we are talking about, when we are talking
about editing, deleting or inserting data, what kind of
data are we talking about, because there are all sorts
of irrelevant data the ability to change which is
utterly benign and indeed is important, an important
part of the system and the system wouldn't work without
it. So that's an important distinction as well.
Having made those contextual points clear, my Lord,
let me just say a very few things. Most of these points
will be clear to you already.
First of all, we are not really concerned about the
reading of data, we are concerned about the addition,
editing or deletion of data, obviously.
Secondly, the position is very different now from
what it was when Legacy Horizon was in operation about
nine or ten years ago. Horizon Online's data, all the
data is written directly to the BRDB, the central
databases maintained I think at Fujitsu's offices, but
with Legacy Horizon data was held on counters before
being downloaded to the central data services, I think
as I recall, at the end of the day. So where remote
access is concerned it was possible that access could be
obtained to counters until 2010, but it's different now.
It's important to understand that.
MR JUSTICE FRASER: Well, I can understand why you make that
submission and it is important, but I have to consider
Legacy Horizon and Horizon Online.
MR DE GARR ROBINSON: Oh, of course. I'm not suggesting any
different.
Thirdly, I should mention the way in which the
evidence has developed in relation to Legacy Horizon.
I will be absolutely frank with your Lordship, I wish it
hadn't developed in quite the way that it has, but we
are talking about the state of affairs that persisted
during 2000 and 2010, it's a long time ago. The
system -- there is no Legacy Horizon system still in
operation that people can go and check, that people are
still operating. People are working off their
recollections and off design documents that are now very
elderly and that problem has been compounded by the fact
that when Mr Roll made his witness statement in 2016 --
it was provided in September last year -- the things
that he said in that witness statement were quite hard
to follow and we will see how hard they were to follow
when he gives evidence later on this week. The result
is that the responsive evidence by Fujitsu witnesses
wasn't as focused as it should have been and wasn't as
clear as it should have been and wasn't as accurate in
certain respects as one would like it to have been and
I must face up to that completely, but what I do suggest
to your Lordship is that it wouldn't be right to draw
any great inferences as a result of the way in which
this the evidential position has developed.
I make no criticism of Mr Roll for giving his
evidence in the way that he did, he is not being blamed
for this process, it is simply a fact of the matter,
it's simply what happened and it is only right that
your Lordship should be aware of that.
Against that background, my Lord, it may be helpful
to have a summary of what I would include as remote
access in this case and, my Lord, that's in
Mr Godeseth's third witness statement, which is {E2/14}.
I would like to pick it up at page 4 of that witness
statement {E2/14/4}. He says at paragraph 14:
"Having further explained that global users and the
TIP repair tool cannot insert, inject, edit or delete
transaction data remotely, to the best of my knowledge,
the following types of remote access as defined in
paragraph 3 above, are or have been possible:
"14.1. Privileged users could, theoretically,
inject, edit or delete transaction data in
Legacy Horizon ..."
"As far as I am aware", he says, "this has never
happened."
14.2:
"Members of the SSC could inject transaction data
into a branch's accounts in Legacy Horizon."
And then, my Lord, when we are still talking about
Legacy Horizon it may help to jump forward to
paragraph 14.5:
"In Legacy Horizon ..."
And Legacy Horizon alone:
"... Fujitsu could cause data to be rebuilt from
copies of the same data as described ..."
In Mr Parker's second witness statement.
So this is a simplified summary. There are
complications particularly in relation to the rebuilding
of data referred to in 14.5, but your Lordship has
a sense of the three basic categories of remote access
that we say was possible in Legacy Horizon and, my Lord,
as regards remote access in Horizon Online, at
paragraph 14.3:
"Privileged users can, theoretically, inject, edit
or delete transaction data in Horizon Online. As far as
I am aware, this has never happened."
And 14.4:
"Members of the SSC can inject additional
transactions into a branch's accounts in Horizon Online
using a designed piece of functionality called
a balancing transaction (BT). Audit records show that
this has happened once."
So your Lordship will see the scope of the dispute.
It is disputed by the claimants that there's only ever
been one balancing transaction in Horizon Online.
I believe it is not accepted by the claimants that
privileged users didn't use their privilege user rights
to muck about with branch accounts, if I can put it that
way, but I'm not sure about that. I'm not sure what
their positive case is. I think their case may be just
that it was possible, not that it actually happened.
And then in Legacy Horizon it was possible to inject
transactions and that happened more frequently than has
happened with balancing transactions and it is possible
to rebuild data from machines which had problems.
So is that a helpful summary of what I say --
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: I'm grateful.
MR JUSTICE FRASER: Thank you.
MR DE GARR ROBINSON: Now, Mr Roll deals with the
Legacy Horizon position. He worked in third line
support in the software support centre at Fujitsu. In
that capacity he could make transaction insertions and
he could rebuild data. But his evidence is quite
unclear about this, or at least his evidence in his
first witness statement is not very clear and it will
need to be unpicked as to what data he is talking about.
Your Lordship will have seen in paragraph 14 there's
a reference to the TIP repair tool, the transaction
information processing repair tool. My learned friend
addressed your Lordship on that this morning. That's
addressed by Mr Godeseth at paragraph 10. I say it is
a red herring. Paragraph 10 {E2/14/3} he explains how
Mr Coyne is confusing balancing transactions with
exercises of the TIP repair tool and then he explains
why the TIP repair tool doesn't have an impact on branch
accounts:
""The TIP repair tool (which was available in
Legacy Horizon and is available in Horizon Online) is
used on data that has failed validation on the transfer
between the BRDB and the TPS system on Horizon Online
and is therefore quarantined within TPS. I understand
from speaking with colleagues that it served a similar
role in Legacy Horizon in relation to data moving
between the Riposte Message store and the TPS system."
And, my Lord, this is important:
"The TPS system is used to transfer data out of
Horizon and on to other external systems. The TPS
system (in either Horizon Online or Legacy Horizon) does
not hold or generate data that is used to produce
a branch's accounts from a subpostmaster's perspective.
Accordingly, an error or change in TPS data will not
affect a branch's accounting position.
"The TIP repair tool is used where the format or
content of the data output from Horizon is incompatible
with the systems to which it is being delivered. For
example, a system may require that certain data fields
are populated. If these criteria are not met, the
receiving system may reject the data. The TIP repair
tool is used to correct these incorrect or missing
attributes. The correction does not change the core
information about the transaction."
And then there is a reference to a PEAK which shows
mandatory fields were omitted from four messages and the
TIP repair tool was used to insert suitable values:
"These are all time stamps so have no impact on
accounts, but the receiving system expects the fields to
be there. In practice, there are multiple time stamps
in messages, so other, appropriate time stamps would
have been used (which may differ by a few seconds from
the missing one)."
My Lord, here is an important point:
"The changes are made to the data in the TPS system
not in the BRDB (or the Riposte Message store in
Legacy Horizon)."
Your Lordship has already heard submissions about
front of the system and the back-end of the system.
Branch accounts are in the front end of the system, they
are within Horizon, Horizon generates accounts for the
branch. The data that is in the Horizon system then has
to be extracted from the Horizon system into the
back-end systems, so Post Office and Fujitsu -- mainly
Post Office -- so that it can be used by Post Office for
its accounting functions. The most important accounting
system that Post Office currently uses is called POLSAP.
It deals with all its internal financial matters from
paying rent on buildings to salaries and also movements
resulting from Horizon transactions. POLSAP draws data
down from the front end. The important thing is that
the TIP repair tool changes the data that is taken from
Horizon and put into POLSAP, but changing data in POLSAP
would not change anything in the branch accounts. It's
just -- they're just different things. My Lord, the
accounting systems are separate. The only way in which
POLSAP could be used in such a way as to result in
a change to branch accounts would be if Post Office used
POLSAP to decide to issue a transaction correction,
Post Office then issued a transaction correction to the
branch and the postmaster accepted that transaction
correction. That's the only way it could happen.
So it is really important to understand the
fundamental difference between facilities which enable
changes to be made to back-end systems and facilities
which enable changes to be made to branch accounts.
And, my Lord, that is overlooked in the claimants'
submissions. A good example of that is at paragraph 273
and perhaps we could look at that. For the record it is
{A/1/94}. Paragraph 273, my Lord.
MR JUSTICE FRASER: Yes, I've got it on the common screen.
MR DE GARR ROBINSON: "Mr Coyne's view is that the above
tools have the potential to affect transaction data and
potentially branch account data by way of incorrectly
altering the transactions prior to entering the
recipient systems such as POLSAP and external clients
(after processing by the counter). The end result may
be the issuing of a flawed TC by Post Office who may not
be aware of the error."
My Lord, actually the point is well made there and
I apologise because I was suggesting this was
a paragraph which showed that the point wasn't
understood. The point is that when we're talking about
changes to back-end systems like this we're not talking
about second order issues, we're talking about third
order issues. We're talking about a change to the
POLSAP figure as a result of some intervention which is
wrong, which results in a mistake being made by
Post Office in deciding to issue a transaction
correction, which then results in a mistake being made
because the postmaster accepts the transaction and it is
loaded into his accounts.
One is not going to find an answer to the question
whether Horizon is robust by referring to tools which
can affect the data that goes into POLSAP.
My Lord, I note that the claimants and Mr Coyne
place emphasis on what they say is a failure to follow
proper permission controls by Fujitsu and there is
a reliance on an audit recommendation by Ernst & Young
in 2011. That is referred to again and again and again
in Mr Coyne's report and again and again and again in
the claimants' submissions. My learned friend took
your Lordship to it. It's at {F/869} and it is referred
to -- well, it is referred to in many many paragraphs,
but including paragraphs 5.161 and 5.196 in Mr Coyne's
first report, the references to which are {D2/1/97} and
{D2/1/107}. And it is also referred to in paragraph 282
of the claimants' opening submissions, for the
proposition that Fujitsu had weak user management
controls.
My Lord, could we go to that document please. It is
{F/869}. You have already seen it once. My Lord, but
your Lordship hasn't seen the first page, or rather --
if it your Lordship goes to --
MR JUSTICE FRASER: I think you mean the second page.
MR DE GARR ROBINSON: It is the second page {F/869/3}.
Paragraph 1 "Executive summary":
"The finance leadership team at Post Office Limited
has implemented and process improvements throughout the
organisation during the past financial year.
"In particular, focussed management action has
addressed many of the issues raised in our prior year
management letter and led to significant improvement in
the overall payroll control environment. The
recommendations we have made in this report should be
seen as refinements rather than fundamental control
deficiencies in comparison."
My Lord, they are put forward in the evidence as
fundamental control deficiencies. Again this doesn't
win me the case but I do invite your Lordship -- when
your Lordship sees frequent references to documents, it
can sometimes be very beneficial to read the whole
document carefully. My Lord, that's my first submission
about that document.
The second submission I would make about the
document is that although Mr Coyne refers to it several
times and indeed there's a suggestion that Ernst &
Young's recommendations aren't being carried into
effect, he doesn't refer to a later document, Ernst &
Young control themes and observations 2013, which is at
{F/1138}. If I could ask your Lordship to go to page 2
of that document {F/1138/2} and again it is the letter
which introduces this document, second paragraph down:
"As part of our audit of the financial statements,
we obtained an understanding of internal controls
sufficient to plan our audit and determine the nature,
timing and extent of testing performed. Although the
purpose of our audit was to express an opinion on the
financial and not to express an opinion on the
effectiveness of internal control, discover weaknesses,
detect fraud or other irregularities (other than those
which would influence us in forming that opinion) and
should not, therefore, be relied upon to show that no
other weaknesses exist ..."
I'm so sorry, my Lord, I'm actually reading the
wrong text.
MR JUSTICE FRASER: "... to show that no other weaknesses
exist or areas require attention."
In other words we have identified some of them but
don't reply on that as saying there aren't any others.
MR DE GARR ROBINSON: Exactly. If your Lordship goes on to
page 4 {F/1138/4}
MR JUSTICE FRASER: Page 4? "Overview". Is that the one?
MR DE GARR ROBINSON: Third paragraph down:
"Focused management action in the past few years has
addressed many of the issues raised in prior year
management letters. Whilst there continue to be
challenges in areas including POL's IT environment,
management have taken steps to ensure these challenges
are and continue to be addressed."
So, my Lord, what your Lordship gets from a reading
of the documents as a whole that the audit processes
which were regularly undertaken by Ernst & Young of
Fujitsu and of its permission controls and operating
controls, regulations, the picture actually to be
derived from those documents is not that Fujitsu was not
doing the right thing, the picture to be derived was
that Fujitsu was being monitored for proper conduct and
although there could on occasion be improvements, they
were essentially acting in the right direction.
My Lord, unless I can assist your Lordship further,
that summarises my overview of remote access.
MR JUSTICE FRASER: That's very helpful. I have read
everything that I have been asked to -- I haven't read
everything obviously in terms of the database, but
I have read all of the documents that both of the
parties asked me to read, and that's very, very useful,
thank you very much.
MR DE GARR ROBINSON: My Lord, I was going to address
your Lordship -- your Lordship may not want to be
addressed on this -- on two points which I apprehend are
included by way of prejudice. One is on the process of
disclosure that's been followed in this case and the
other is the so-called shadow expert allegation.
I don't know whether your Lordship would feel the need
to hear any submissions about any of those things.
MR JUSTICE FRASER: Well, I would have thought the best
place to do that is probably in closing because actually
at the moment whatever the situation is suggested to be
vis-Ã -vis shadow experts, or so-called shadow experts,
it will become a lot clearer after the
cross-examination, I would have thought, but I'm not
shutting you out from addressing me on it if you want
to.
MR DE GARR ROBINSON: No, my anxiety is to help
your Lordship not to set hares running.
MR JUSTICE FRASER: I would have thought closing.
MR DE GARR ROBINSON: Very well. My Lord, all I would say
about shadow experts is two things. First of all, dark
inferences are drawn as if having an advisor advising
you before you have actually appointed an expert is
something that is somehow untoward or inappropriate.
My Lord, in cases of this scale it is commonplace in my
experience.
MR JUSTICE FRASER: Well, it depends on what they have been
doing, which is why it is probably best left until after
the cross-examination I would have thought.
MR DE GARR ROBINSON: My Lord, that brings me to my second
point. There appears to be if not a suggestion then an
implication sought to be achieved that the technical
advisor has in some way been used in order to shield the
experts and the parties from adverse documents.
My Lord, if that is the suggestion being made, it is
wrong and it should not be made. I can tell
your Lordship that all the documents reviewed by the
advisor were reviewed with a view to ascertaining
whether any of them constituted adverse documents and
any adverse documents that were revealed as a result of
that review have been disclosed and it is important that
your Lordship should not allow yourself to be -- it's so
easy in cases of this kind to be drawn into the sort of
painting of pictures. My learned friend is actually
creating something out of nothing and it is --
MR JUSTICE FRASER: I don't think you need concern yourself
that I am easily drawn into painting pictures.
MR DE GARR ROBINSON: I'm very glad to hear it, my Lord.
So, my Lord, assuming your Lordship doesn't wish to
hear me on disclosure and the procedure that was adopted
and your Lordship has submissions in the annex to our
opening -- written opening submissions, all that remains
is for me to talk about timings, the trial timetable.
MR JUSTICE FRASER: Yes.
Housekeeping
MR DE GARR ROBINSON: Since the PTR I have been giving
anxious thought as to the extent to which I can properly
cross-examine Mr Coyne within the compass of two and
a half days and were I required to do that then I would
do that.
MR JUSTICE FRASER: Of course.
MR DE GARR ROBINSON: It is my view, having thought about it
quite carefully, that it would be very, very difficult
to get it under three days and three and a half days
would be doable but under three would be very hard
indeed, but if your Lordship were to say it should be
two and a half days then it can be done in two and
a half days.
MR JUSTICE FRASER: Mr De Garr Robinson, I will -- and just
for the purpose of everyone in court because obviously
counsel know this but not everybody will. I separately
raised this point of my own volition --
MR DE GARR ROBINSON: You did.
MR JUSTICE FRASER: -- about three weeks ago after I read
the first joint statement which emerged from the meeting
which I think was taking place the very day of the PTR
or possibly a couple of working days later, so the trial
timetable that was set down for the PTR was not chiseled
into granite and I expressly invited this debate on
Day 1.
If you are going to have longer, and on current
understanding of the different expert issues it seems to
me that that's sensible, we just have to grasp the
nettle now about how that's going to impact the second
half of the trial. I mentioned this morning
difficulties in respect of another case on Friday the
5th anyway. It seems to me that the best way forward is
to keep the shape of the first half the same, that the
week commencing 1 April you should be given your four
days to cross-examine Mr Coyne. We then won't sit on
the 5th and on Monday the 8th we will start with
Dr Worden, which if Mr Green wants three days he can
have them, if he wants four days he can have them but
I know he said at the pre-trial review he would only
want three but what's sauce for you is sauce for him,
which means we are going to have to address closings.
Now, I know from time to time I have come across as
somewhat more robust about counsels' availability but
obviously in this case that's slightly different now
because we are starting the trial and this is an
alteration and I know at the pre-trial review Mr Green
had some observations about going into the week after
that and you said this morning that the beginning of the
next term might be a better time for them.
So I'm open to suggestions and debate about that,
but the primary decision is when do we do the evidence
and it seems to me you want your four days and I'm
prepared to give you your four days.
MR DE GARR ROBINSON: Well, my Lord, I certainly want three
to three and a half days.
MR JUSTICE FRASER: All right, if you go three and a half
days what we will do is do a hard start with Mr Coyne on
the Monday morning, because apart from anything else
people need to plan or organise their diaries and it's
bad practice to start an expert just before the weekend
and then he is in purdah and Mr Green can't speak to
him, or vice versa.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: So that's my current thinking.
MR DE GARR ROBINSON: I'm grateful. Shall I discuss it with
Mr Green and then we can come back to your Lordship with
hopefully an agreed approach.
MR JUSTICE FRASER: Mr Green, two things. Longer for
cross-examination, I have made that clear.
MR GREEN: My Lord, I'm anticipating within three days.
MR JUSTICE FRASER: All right, that's fine. You will have
to discuss it with Mr De Garr Robinson about when you
might do your closings.
MR GREEN: Indeed.
MR JUSTICE FRASER: The beginning of the term afterwards at
the moment I'm supposed to be on TCC business but that
can and will be rearranged to fit around you. I think
term starts on 1 May which is a Wednesday, so you could
have 1 and 2 May, or you could have two days the week
after. I think any longer than that it's beginning to
get difficult in terms of the timetable for the whole
year and actually the difficulties in the timetabling
are probably more my difficulties than yours because I'm
the one that has to write the judgment.
So do you want to have a chat about that, about
closings, but for the moment as far as cross-examination
of the experts, Mr Coyne will be called on Monday,
1 April and you, Mr De Garr Robinson, can have as much
of the four days that week up to and including Thursday
the 4th as you want and the same the other way round:
Dr Worden will be called on Monday the 8th and you can
have as much of the three into three and a half days
that week to cross-examine him as you want.
MR GREEN: My Lord, I think the Thursday is Maundy Thursday,
I don't know whether that --
MR JUSTICE FRASER: No, I think that's a week out, isn't it?
I think Maundy Thursday is the following week because
Easter is so late.
MR GREEN: Yes exactly. It is so late.
MR JUSTICE FRASER: So that whole week we don't have any
Easter issues at all that week.
MR GREEN: That's excellent.
MR JUSTICE FRASER: All right? Is that helpful?
MR DE GARR ROBINSON: My Lord, it is extremely helpful,
thank you.
MR JUSTICE FRASER: Couple of other admin points. I have
obviously been working on hard -- well, I have actually
been working on the system but I've got three screens
already and if I bring my laptop down I'm going to end
up with four screens so I would like a file please from
you of your witness statements that actually have the
trial bundle pages printed on them. I don't need the
exhibits. And the same for you, Mr De Garr Robinson,
just a file of your evidence of fact at the moment with
the trial bundle pages printed on them.
Obviously I would like yours for tomorrow morning.
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: Yours can come at some stage during the
week and at some point I would like a hard copy file of
your two experts' reports in the same file, no
appendices, again with the trial bundle pages on them
and the same for your expert as well.
MR DE GARR ROBINSON: Your Lordship may prefer to have the
appendices as well because there is quite a lot of work
done in the appendices of the --
MR JUSTICE FRASER: I've got the appendices -- actually if
you think -- you are right, it is probably sensible to
have those with the trial bundle references on. The
reason I said no appendices was simply to try and reduce
the amount of work you have to do, that's all. Is that
quite clear?
MR GREEN: It is easy to do.
MR JUSTICE FRASER: And obviously the witnesses will need to
have, as they did in the common issues trial, a bundle.
MR GREEN: Indeed.
MR JUSTICE FRASER: And I think there have been some recent
statements, haven't there, just making corrections
et cetera.
MR GREEN: My Lord, yes, there are some small changes.
MR JUSTICE FRASER: So I imagine examination-in-chief will
be quite straightforward.
MR GREEN: Yes.
MR JUSTICE FRASER: Is that everything? Thank you both very
much and tomorrow morning.
MR DE GARR ROBINSON: My Lord, actually having nodded when
your Lordship said "Is that everything" I should mention
that Mr Henderson and Mr Draper will be doing some
cross-examining --
MR JUSTICE FRASER: I had guessed that.
MR DE GARR ROBINSON: So in proper reflection of my real
role in this case I will be allowing them to take pole
position.
MR JUSTICE FRASER: Just so that you know, because I think I
did say this at the beginning of the common issues trial
but I will just say it to you, as far as counsel are
concerned I don't mind where you sit, where they sit.
They can sit up front -- there's actually a practice
direction about this for the Rolls Building
specifically. So please don't think that if you would
rather have Mr Henderson next to you or Mr Draper next
to you all the time, that as junior counsel they have to
sit behind you, because as far as we are concerned we
don't do that. But I anticipated they would be doing
some of the cross-examination and I'm sure that might be
the case for the other side as well.
Is that everything?
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: Thank you all very much. Tomorrow
morning.
(4.15 pm)
(The court adjourned until 10.30 am on Tuesday,
12 March 2019)
INDEX
Housekeeping .........................................1
Opening submissions by MR GREEN ......................8
Opening submissions by MR DE GARR ...................79
ROBINSON
Housekeeping .......................................159