Thursday 21 March 2019

Horizon trial: day 8 - Going Postal

Post Office v Justice Fraser
What a week. A blistering judgment, revelation after revelation, and then this: the nuclear option.

We were expecting to witness the final session of Torstein Godeseth's cross-examination in court. Mr Godeseth is the chief architect for Horizon at Fujitsu. He'd spent the morning being taken through various serious Horizon errors, including a financial discrepancy mistakenly created by a Fujitsu engineer who was wandering around in a Subpostmaster's terminal without permission.

During a bungled attempt to fix a software glitch, the engineer miskeyed a digit, causing a $1000 discrepancy in a forex transaction. It wasn't picked up by Fujitsu at the time. It was only found during this litigation whilst the claimants' legal team were preparing for the Horizon trial. When it happened the Post Office held the Subpostmaster liable for the loss. More on that tomorrow.

Right now we're still reeling from the Post Office's attempt to have the judge recuse (sack) himself on grounds of apparent bias. It seemed to come as a surprise even to the Post Office's own QC, Anthony de Garr Robinson.

Mr Justice Fraser: in the firing line
At 2.02pm, after the usual lunch break, the judge walked into court and said: "I have received an application,
 Mr De Garr Robinson.  Do you know about it?"

Mr de Garr Robinson replied: "My Lord, I know that there has been an
 application, that is almost all I know."

The judge explained: "It is
 an application for me to recuse myself as being the managing judge in these proceedings which means
 effectively.... for this trial to stop.
 Although the application says "adjourn the trial",
 I think it really means start it again with another

To say this is beyond extraordinary barely touches on it. The judge rose to give Mr de Garr Robinson a chance to try to work out what was going on. He returned ten minutes later to be told that Lord Grabiner, not Mr de Garr Robinson, would be acting for the Post Office in the application.

Lord Grabiner is One Essex Chambers' Big Dog. But unfortunately no one had been able to contact him, and so Mr de Garr Robinson and Mr Patrick Green QC for claimants would duke out the pre-Application procedural arguments, as the judge effectively decided the date on which his professional intergrity was going to be attacked.

Calculated to derail

Mr Green rose to his feet and drew his Lordship's attention to a witness statement supporting the application signed by Andy Parsons, a partner at Womble Bond Dickinson, the Post Office solicitors.

Lord Grabiner: The Big Dog
The witness statement says J Fraser's judgment of the common issues trial, which was handed down on 15 March:
 "contains a great deal of critical
 invective directed at Post Office, none of which is relevant to the determination of the common issues.
 That... creates a clear impression that the judge has
 not behaved impartially. The same can be said for those parts of the judgment which harshly criticised Post Office's witnesses on matters irrelevant to the common issues."

Mr Green made his point:

"I have not seen very many recusal applications, but I have not seen a recusal application as lacking in particularity as this... what is a fair appraisal of the credibility of a particular witness and what is invective?... This application, which... is likely if
 not calculated to derail these proceedings, has to be
 spelt out with proper particularity before we are in a position to respond to it."

This made everyone pause as the implications for the next battle in this deep war of attrition began to sink in. The judge had a little think:

MR JUSTICE FRASER:  All right, well, just before I ask you
 for a response on that, Mr De Garr Robinson, what I'm actually going to do is I'm going to go and read the whole witness statement, because I think I quite clearly have explained I haven't had a chance to read it yet.


MR JUSTICE FRASER:  Well, you might then also benefit from
 having had a chance to look at it.


The judge rose again, and after a little bit more to-ing and fro-ing, the plan was agreed. Mr Parsons' witness statement would be fleshed out so everyone could see exactly what he was objecting to in the Common Issues trial judgment, and then (presuming the claimants opposed the application) the judge would hear it in court on 3 April and decide if he was biased (all welcome).

And if either party didn't like his decision, it could be appealed.

What was immediately and abundantly obvious was that the Horizon trial would have to be shut down until the matter can be resolved. And so it was.

The atmosphere in court after the judge rose was one of disbelief. Experienced, highly-paid people were literally shaking their heads with their mouths open.

This is going to get brutal.


I am going to do more work on this on Friday. I'll post up some of the reaction from people who have contacted me over text, email, Whatsapp, email, the contact form on this website, twitter etc [UPDATE: I did exactly that. Read it here]

I'll also make sure that by the end of Monday that there is a proper fisking of Mr Godeseth's cross-examination, which was stunning, but which will now barely register in the wider world. [UPDATE: I did that, too! Read it here] Today's full court transcript is here.


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