This recusal hearing was heard today in Court 26 of the High Court's Rolls Building.
It was the busiest I have seen the court since this litigation started. Claimants Jo Hamilton, Seema Misra, Sue Knight, Pam Stubbs and Lee Castleton were present, alongside many more who are not yet publicly known.
Also in attendance was Ron Warmington, Managing Director of Second Sight, several representatives of the Communications Workers Union, Jane Croft from the Financial Times, Karl Flinders from Computer Weekly and legendary legal journalist, Joshua Rozenburg.
The only people to speak all day were Justice Fraser, Patrick Green QC and Lord Grabiner QC. Here is the transcript:
It was the busiest I have seen the court since this litigation started. Claimants Jo Hamilton, Seema Misra, Sue Knight, Pam Stubbs and Lee Castleton were present, alongside many more who are not yet publicly known.
Also in attendance was Ron Warmington, Managing Director of Second Sight, several representatives of the Communications Workers Union, Jane Croft from the Financial Times, Karl Flinders from Computer Weekly and legendary legal journalist, Joshua Rozenburg.
The only people to speak all day were Justice Fraser, Patrick Green QC and Lord Grabiner QC. Here is the transcript:
Wednesday, 3 April 2019
(10.30 am)
Housekeeping
LORD GRABINER: My Lord, on this application I appear for
the Post Office, and I think your Lordship will be
familiar with all the characters in the story. I am
with my learned friends Mr Cavender and Mr Cohen, and my
learned friends Mr Green, Ms Donnelly, Mr Warwick,
Mr Miletic and Ms MacKenzie appear for the claimants.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Your Lordship will have seen our skeleton
argument and a draft of the order that we seek. We
invite your Lordship to recuse your Lordship as managing
judge of this litigation and in association with that
application we also seek an order that the Horizon trial
currently being heard by your Lordship should be stayed
or adjourned, as the case may be. And for the avoidance
of doubt, we do not say that if this application
succeeds, the Common Issues trial will have to be
re-run.
MR JUSTICE FRASER: The Common Issues trial?
LORD GRABINER: Precisely. So if we are successful, we do
not say that that trial will be have to be re-run, which
I think is one of the concerns expressed by the other
side. We do propose to appeal against your Lordship's
judgment, and the view we take is that the matters we
complain about can be rectified on appeal without the
need for a retrial.
Can I turn, then, to apparent bias.
MR JUSTICE FRASER: Yes, just before you do, Lord Grabiner,
in terms of logistics, we usually have a break sometime
round about a quarter to 12 for five or ten minutes just
for the shorthand writers, which I know you will know is
entirely conventional.
LORD GRABINER: Indeed.
MR JUSTICE FRASER: Although the application is set down for
the whole day, if you could aim to finish your
submissions some time between 12.30 and 1 o'clock, or
1.30 at the latest.
Application by LORD GRABINER
LORD GRABINER: Yes, my Lord.
I can deal first of all with the law very shortly by
reference to four cases. And I am not going to trouble
your Lordship to turn them all up, but give you
a reference because there are short quotes I can deal
with.
The first is the well-known legal test stated by
Lord Hope in Porter v Magill, and the reference for the
transcript is {B9.5/8/1} and it is just in
paragraph 105, where Lord Hope says the test is, and
I quote:
"Whether the fair-minded and informed observer,
having considered the facts, would conclude that there
was a real possibility that the Tribunal was biased."
So it is an objective test.
The second case is the case of Otkritie v Urumov,
and that is in bundle 9.5, tab 25, {B9.5/25/1} and it is
at paragraph 1 of the judgment of Lord Justice Longmore,
to the effect that bias includes conveying the
impression of having prejudged any issue which remains
to be decided. And Lord Justice Longmore's observation
is this, and I quote:
"The concept of bias extends further to any real
possibility that a judge would approach a case with
a closed mind or indeed with anything other than an
objective view; a real possibility, in other words, that
he might in some way have prejudged the case."
The third case I want to show your Lordship, because
you may not be familiar with it, and there are passages
in it that I want to draw to the court's attention, and
that is the case of Mengiste. It is in your Lordship's
bundle {B9.5/23/1}.
MR JUSTICE FRASER: I think it is tab 24, isn't it?
LORD GRABINER: It is certainly tab 24 for me.
MR JUSTICE FRASER: It is tab 24 for me as well.
LORD GRABINER: Very good. I wasn't sure if the electronics
had caught up.
MR JUSTICE FRASER: Tab 24 for me is the costs law report
version, is that the one that you have?
LORD GRABINER: Yes. That case, we say, is instructive.
I can just tell your Lordship something about it first,
it will save going through the headnote. There
Mr Justice Peter Smith had criticised the evidence of an
Ethiopian law expert witness. He is improbably called
Mr Jones in the case, but that was to protect him
against possible repercussions in Ethiopia, so Mr Jones
is just a nom de plume.
In his judgment, he went on to criticise the
solicitors for the party who had relied on Mr Jones on
the basis that the solicitors had failed to educate the
expert as to his proper functions and duties.
Encouraged by what the judge had said, the other side
applied for a wasted costs order against the solicitors.
The judge granted permission for that application to
proceed, that was stage 1, but he refused to recuse
himself from the substantive hearing, stage 2. The
Court of Appeal held that the judge should have recused
himself because of his concluded views as to the
behaviour of the solicitors, as expressed in his
judgment.
If your Lordship would be kind enough to go
paragraph 59 of the judgment of Lady Justice Arden.
MR JUSTICE FRASER: Give me one second, my chair seems to be
broken, so I'm just swapping it for this one. (Pause)
LORD GRABINER: Paragraph 59, my Lord, the Lady Justice says
that she has reached the clear conclusion that this was
an exceptional case and that there was apparent bias
stemming from the facts of the case which meant that the
judge should have recused himself.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Then under various headings, the
cross-heading is "No necessity to make the findings"
and, and I want to emphasise the words:
"The judge's criticisms were not, in my judgment,
necessary to enable the judge to evaluate Mr Jones'
evidence."
And a few lines below that:
"The question why his reports contained inadmissible
material or he performed poorly as a witness, which
I accept were likely to increase costs, were primarily
relevant when it came to costs. As it seems to me, the
judge in making criticisms against the solicitors over
their explanation to Mr Jones about his duties was
concerned to warn off an application for a wasted costs
order against Mr Jones."
And that was to anticipate an application that had
not yet been made, and your Lordship might want to
glance at the balance of that paragraph, but I am not
going to read it out. And then the next cross-heading
is "Criticisms expressed in absolute terms," and
your Lordship might like to read that paragraph through.
Then the other cross-heading is "Repetition, further
criticism and concern to meet criticisms of the judge's
conduct."
And the learned Lord Justice says:
"While I might not have reached the same conclusion
if a criticism had been made in absolute terms on
a single occasion, here the judge accepted that there
were six criticisms of the appellant's solicitors in the
stay judgment."
And I wasn't going read the balance of that, but if
your Lordship would be kind enough to go to
paragraph 63, about seven or eight lines down:
"The second principle is that a judge who is doing
no more than discharge his judicial function does not
create an impression of bias, which is
well-established."
MR JUSTICE FRASER: I'm sorry, I have reached 63, but ...
LORD GRABINER: 63, you will see it is split into the first
principle and then the second principle, about six lines
down.
MR JUSTICE FRASER: I see, yes.
LORD GRABINER: "A judge who is doing no more than his
discharge his judicial function does not create an
impression of bias, which is well-established. What
occurs in that situation is adjudication, not unsought
findings."
And I emphasise those words, "unsought findings".
And then about four or five lines below that:
"Where there is an issue of apparent bias, the test
in Porter v Magill must be fearlessly applied by this
court and the fourth and fifth principles overlook the
possibility that mere criticism expressed in absolute
terms may of itself be extreme and unbalanced because
the impression to even the fair-minded observer that the
door has not been left open for whatever explanation the
party or non-party, who has not yet had the chance of
providing that explanation, may have to say."
And I shall be submitting that your Lordship does
express himself in the judgment in very firm terms.
The fourth case, and it is probably helpful to --
I have got a hard copy, old school bundle with me, but
the fourth case perhaps we can also just briefly look
at, and this is the final case, is Stubbs v The Queen
{B9.5/29/1}.
MR JUSTICE FRASER: Yes, it is. I too am using an old
school bundle.
LORD GRABINER: Very wise. But again, I don't know if
your Lordship is familiar with this case, it is an
appeal to the Privy Council in a murder trial from the
Caribbean, and you can see in the sort of second line of
the headnote:
"In 2007 a second trial took place before
a different judge and jury, in the course of which the
judge made certain rulings relating to the admissibility
of evidence and dock identification and ruled against
the submission of no case to answer. Then that trial
was aborted."
When there was in due course, I think, a third trial
and the defendants were convicted, the Court of Appeal,
on hearing that appeal:
"It transpired that the judge who had sat in the
second trial was a member of the Court of Appeal in the
third trial and the Court of Appeal rejected the
defendant's objection --"
This is just above F:
"-- that the participation of the same judge in the
second trial and in the appeal would not give rise to a
reasonable apprehension of bias, since the aborted trial
had taken place some seven years earlier, the judge
wouldn't be sitting alone, but in a panel of two other
judges."
So they seemed to think it didn't matter if one of
the three infected the other two, but the Privy Council
took a different view. Just from the top of the
headnote in the holding:
"Whether fair-minded and informed observer having
consider the facts would conclude that there was a real
possibility that the Tribunal was biased, that the
appearance of bias as a result of pre-determination or
pre-judgment was a recognised ground for other recusal."
If your Lordship would be kind enough to just flick
to paragraph 16 in the judgment of Lord Lloyd-Jones in
F, between F and G, a couple of lines below F:
"The issue will only arise in all the circumstances
where prior involvement is such as might suggest to
a fair-minded and informed observer that the judge's
mind is closed in some respect relevant to the decision
which must now be made."
Then after some citation of Locabail, which I will
come back to later on, the learned judge says:
"However, relevant factors are likely to include the
nature of the previous and current issues, their
proximity to each other and the terms in which the
previous determinations were pronounced."
And in paragraph 17:
"It is not acceptable for a judge to form or to give
the impression of having formed a concluded view on an
issue prior to hearing full argument by all parties on
the point."
So that is all I wanted to show your Lordship for
the moment, but judging from my learned friend's
skeleton argument, the impression I have is that what
I have just been showing your Lordship is not
controversial.
Then it is also necessary, we suggest, to bear mind
the big picture. The incomplete disclosure and evidence
itself relates only to a tiny proportion of the claimant
group. There were six lead claimants in the
Common Issues trial out of, I gather, about 550-odd
claimants, and the 550-odd are themselves a small
proportion of the many thousands of Subpostmasters
currently serving, so there must also be some historic
examples as well of people who are no longer acting as
Subpostmasters, and we don't have any disclosure or
evidence from any of that wider group.
MR JUSTICE FRASER: But there would never be disclosure of
Subpostmasters who weren't claimants, would there?
LORD GRABINER: Well, in principle, that is quite correct,
but there would be disclosure from those who were.
MR JUSTICE FRASER: Yes.
LORD GRABINER: And I suppose in theory, it might be
possible for disclosure to be widened, notwithstanding
the fact that the others are not parties as claimants.
I don't know.
MR JUSTICE FRASER: In terms of third party disclosure?
LORD GRABINER: Yes, exactly.
MR JUSTICE FRASER: Yes.
LORD GRABINER: But it is a theoretical possibility,
I readily accept.
MR JUSTICE FRASER: But you are entirely right, there were
six lead claimants out of 557 claimants in the
litigation.
LORD GRABINER: I am grateful. Two points follow from that.
First of all, the danger of reaching premature
conclusions is magnified because the incomplete
evidential picture for the lead claimants is itself part
of a larger unexplored evidential canvass, in my
submission.
And secondly, the consequence of making that mistake
would be great, given -- or could be great, given that
this litigation extends far beyond the lead claimants'
claims.
Turning to this litigation. Obviously your Lordship
is very familiar with it and the various disputes
between the parties, and I am not going to even attempt
to rehearse the details. The starting point of my
submissions is the proper scope of what is called the
Common Issues trial. The Common Issues are set out in
your Lordship's paragraph 45 of the judgment, very
helpfully.
And then paragraph 1 of the order of the
27 October 2017, just for the transcript, that is
{B9.3/2/1}, gave an accurate and convenient precis of
the Common Issues, and paragraph 1 simply says:
"Issues relating to the legal relationship between
the parties."
So it couldn't be clearer or more concise than that.
For convenience, we have summarised the Common Issues
under four headings in paragraph 18 of our skeleton
argument.
We have comprehended every item there, and
paragraph 18 summarises each of those items.
Your Lordship might want to glance at that.
MR JUSTICE FRASER: Just give me a second. I had been
working off the schedule to the order, but I am sure
they are correctly identified. Paragraph 18 of your
skeleton?
LORD GRABINER: Paragraph 18 of our skeleton on page 7. It
identifies all the issues, but puts them under
particular sort of generic headings.
In our submission, there was little scope for
factual evidence at the Common Issues trial, looking at
those items.
Then pre-trial at the 22 February 2018 hearing,
your Lordship said that you had, and I quote "reminded
yourself that the Common Issues were" and I quote
"purely points of construction". And the reference for
that, but we don't need to go to it, is the
22 February 2018 hearing at page 9D and that is
{B9.3/2/85}. That is probably a transcript page
reference.
Now, that was, in my submission, an important and
accurate statement. Your Lordship repeated a version of
the same point several times at a number of
interlocutory hearings thereafter. The parties were
entitled to rely on those clear and correct indications
as to the scope of the Common Issues trial.
As your Lordship rightly said on various occasions,
evidence was only admissible if it went to the
Common Issues. You said that at the 5 June 2018 hearing
at page 57E {B9.3/2/271} and your Lordship also said
that the only relevant evidence for contractual
construction is knowledge common to the parties, when
the relevant contract was made and with which, if I may
say so, I respectfully agree, 22 February 2018 hearing
at page 9E, {B9.3/2/85}, and the other point for that
trial was a much narrower one, namely whether the lead
claimants had been properly notified of the contractual
terms, which obviously was an issue in the case in
Common Issues 1.
MR JUSTICE FRASER: I think it went to a number of
Common Issues, due to onerous and unusual terms.
LORD GRABINER: Indeed, under the Unfair Contract Terms Act.
MR JUSTICE FRASER: Onerous and usual terms in terms of
incorporation and then if incorporated, whether they
were reasonable under the Unfair Contract Terms Act.
LORD GRABINER: Exactly, and your Lordship is familiar with
the successive trial structure that was set up under the
litigation management arrangement. Under that scheme,
in respect of each trial, there needs to be disclosure
and witness statements geared to the issues in the
particular trial.
The Common Issues trial was never intended to decide
issues which fall to be investigated and determined in
some later trial, and still less to provide a platform
for wide-ranging evidence, for example on the Horizon
Issues or alleged breaches of duty. That is an
important point.
Prior to and during the Common Issues trial, the
Post Office on a number of occasions drew attention to
its developing concern that the evidence and arguments
adduced by the claimants might lead your Lordship, when
giving judgment, to trespass on matters outside the
Common Issues which were yet to be tried, for example
Horizon or breach issues.
The relevant passages are scheduled to our skeleton
argument, which I think your Lordship will have seen.
Just in summary, they include transcripts of pre-trial
hearings, extracts from our trial skeleton, passages
from Mr Cavender's oral opening and closing at the
trial, as well as extracts from the Post Office's
written closing at trial. But in the event, I am
I afraid, those concerns, in my submission, turned out
to be well-founded.
In addition to our criticisms of the way the
judgment deals with issues outside of the Common Issues,
we also complain about prejudicial and irrelevant
observations made in the judgment about Post Office and
its witnesses.
Both categories of complaint, taken separately or
together, would lead the fair-minded observer to
conclude that there is at least a real possibility that
your Lordship will not be able to judge the remainder of
these proceedings impartially. I regret making that
submission, but I do make the submission firmly.
Now, in these submissions, I propose to focus on the
paragraphs in your Lordship's judgment we rely on and
which we have given notice of. In the interests of
time, I was not proposing to take your Lordship through
Mr Parsons' 14th and 15th witness statements, which were
prepared and served specifically for this hearing, and
I am sure your Lordship has looked at those.
MR JUSTICE FRASER: They identify effectively pre-trial
transcript passages and then in the 15th, the actual
specific judgment passages.
LORD GRABINER: My Lord, yes. And similarly, I would prefer
to take our skeleton argument as read. I should make it
clear that we rely on everything in those witness
statements and in our skeleton argument in support of
this application.
Now, as to the first category, I want to go to the
paragraphs in the judgment which show that your Lordship
made many findings and numerous observations both about
the facts and the witnesses, which, in the first place,
were not necessary for the purpose of deciding the
matters which were the subject of the Common Issues
trial, and that this was done without disclosure and
witness evidence, and secondly, because your Lordship
adopted that approach, the judgment prejudges many
matters, including technical characteristics of the
Horizon system and supposed breaches of contract and
duties on the part of Post Office, which are still to be
dealt with in the Horizon trial and the other future
trials.
Now, it would be helpful if your Lordship would be
kind enough to take up my learned friend's skeleton
argument. I just want to make a brief reference to
a couple of the paragraphs because my learned friend's
skeleton helpfully narrows the dispute. If,
your Lordship, you have got that skeleton handy, if
your Lordship would be kind enough to go to paragraph 8.
MR JUSTICE FRASER: This is Mr Green's skeleton?
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: Yes.
LORD GRABINER: What he says in paragraph 8 is:
"In the judgment, the judge correctly resolved
matters that were put in issue before him. He did so in
the light of the evidence adduced, how it was challenged
and the case advanced by the parties before him.
A party can't be surprised when a judge makes findings
on a point when the same party has elected to adduce
evidence on that point or to cross-examine on it."
In paragraph 9:
"The judge rightly made his assessment of the above
matters and resolved the Common Issues."
And I really emphasise those words:
"In the light of the parties' pleaded cases, in
particular Post Office's expressly pleaded case on
issues of construction and its procedural election not
to amend that case, this approach was a proper and
necessary part of his judicial assessment of the
proceedings before him."
And I emphasise those words as well. Then in
paragraph --
MR JUSTICE FRASER: There is no dispute that I had to
consider and resolve the Common Issues, I think.
LORD GRABINER: Indeed, that is common ground.
MR JUSTICE FRASER: And I had to do that in respect of the
six lead claimants as well.
LORD GRABINER: Indeed, absolutely.
MR JUSTICE FRASER: And insofar as there were issues of
fact, because there were issues of contract formation --
LORD GRABINER: Indeed.
MR JUSTICE FRASER: -- that went to each of the six.
LORD GRABINER: Indeed.
MR JUSTICE FRASER: So I assume your position on that is
that insofar as fact had to be resolved to identify the
contractual relations of each of those six, that was
a necessary part of the Common Issues trial.
LORD GRABINER: Absolutely, I respectfully agree.
MR JUSTICE FRASER: All right.
LORD GRABINER: If your Lordship would look at paragraph 12,
my learned friend says:
"In any event, these matters were not irrelevant.
In many cases, they were relevant because of
Post Office's expressly pleaded case as to how the
relevant contract should be construed or in the
resolution of issues directly arising from challenges
mounted before the court by Post Office's own
cross-examination of lead claimants."
You see how the point has now been elided away from
the contract terms into the cross-examination debate.
Then in 13:
"It does not lie in the Post Office mouth to
complain that the judge resolved matters that the
Post Office itself elected to put in issue and contested
before him or on which it expressly invited him to make
findings, still less as a basis upon which to seek to
derail the entire group litigation by alleged apparent
bias."
Then in paragraph 17:
"The court cannot be fairly criticised for making
a judicial assessment of both parties' cases, evidence
and witnesses in the usual way, particularly on the
basis of the parties' respective pleaded cases and the
way their cases were actually advanced at the
Common Issues trial."
So there is a clear departure away from the contract
terms, as your Lordship put it to me a few moments ago,
and into matters such as what was pleaded and what was
cross-examined and so on.
MR JUSTICE FRASER: But just pausing there just for
a moment, because your expression "the cross-examination
debate" I think as useful shorthand term for it. But if
the Post Office was challenging a particular lead
claimant's veracity and cross-examined on particular
material to demonstrate that that witness should not be
believed, and there is an issue of fact as to whether
that witness' contractual relations with the Post Office
were formed on X, Y, or Z, does that mean that the
material in respect of which cross-examination has been
performed remains irrelevant or does it become relevant?
LORD GRABINER: If the cross-examination was concerned to
deal with the Common Issues, entirely appropriate to
deal with -- to make findings in relation to that
cross-examination, yes.
MR JUSTICE FRASER: What if it was done to deal with the
credit of the witness, which is itself in issue in
respect of their contract formation?
LORD GRABINER: Well, as I say, if it is concerned with
contract formation, fair dos, but insofar as there might
have been cross-examination which went to wider issues
at the trial, which I understand is the case, that is
driven essentially by the background about whether or
not the material that was incorporated into the
claimants' witness statements was admissible and
relevant material.
One of the concerns on this side was not to leave
unchallenged matters which shouldn't have been in
evidence at all, because they were not relevant to the
Common Issues as defined. That, I think, is the area
for disagreement, and I will develop it a little bit
further, because when we look at various paragraphs in
the judgment, you will see how that distinction can be
demonstrated from the paragraphs in the judgment that we
rely upon.
But that was a grumbling issue all the way through,
because at the outset it was anticipated that that would
not be a problem, and indeed your Lordship at one stage
had actually invited the possibility that there would be
a strike-out application in respect of the witness
statements on the grounds that my side were saying that
the witness statements contained matters of fact which
were wholly irrelevant to the Common Issues.
In the event, when that application was made,
I think your Lordship said that would either be dealt
with by way of a strike out or by way of no
cross-examination. In the event, the strike-out
application was made, but was rejected by your Lordship.
But, of course, my side were then left in a quandary,
not knowing whether or not your Lordship would take
account of irrelevant material, irrelevant for the
purposes of the trial of the Common Issues. That,
I think, is the area for difference.
MR JUSTICE FRASER: The strike-out application was first, or
concerns about scope of evidence were first mentioned
before the witness statements had been served, so there
was a lot of debate about the scope of evidence that
might be served in the absence of seeing what that
evidence was.
LORD GRABINER: Yes.
MR JUSTICE FRASER: But I understand your submission. Your
submission is as a result of the judgment on the
strike-out application, you, the Post Office, was in
a quandary about what it could or should do in respect
of the evidence that had not been struck out, is that
correct?
LORD GRABINER: Precisely. What would be very, very
unattractive, in the face of the events that had
happened, that if, by the time you got to the trial, my
learned friend Mr Cavender spent a lot of his time
during my learned friend's Mr Green's cross-examination
of witnesses jumping up and down saying, "You can't put
that because it doesn't arise in the Common Issues
trial", nothing could be more irritating either to
Mr Green in his cross-examination, still less to the
learned judge, because that is just not the way to
proceed.
So that said, the only way in which you can cover
yourself, you either say nothing at all, which is a high
risk strategy because you don't know what the judge's
thinking is or what relevance the judge may apply to the
matters that have been the subject of the questioning,
or you actually indulge yourself in some
cross-examination.
But it doesn't following that because you have done
that, by some kind of process of osmosis, the definition
of the Common Issues are suddenly being dramatically
expanded or increased. It doesn't change the definition
of the Common Issues in the slightest. It means there
has been some cross-examination on some irrelevant
material, which is perfectly reasonable.
But I take your Lordship's point that if the
cross-examination goes to credit and was in respect of
a matter such as what were the contract terms, or some
other issue under the Common Issues' rubric, then that
would be fair dos, and if your Lordship came to
a conclusion about that, that would be reasonable.
But on the other hand, your Lordship came to
a conclusion about the credibility of some witness, but
in the context of a debate about breach of contract, in
my submission, that would be wholly irrelevant and
should not have entered upon the debate.
Similarly, if it was an issue about the working of
Horizon, the idea or the notion, as we shall see, I am
afraid, when we get to the paragraphs, that
your Lordship expresses a view about the witnesses'
position in relation to a Horizon Issue for example, in
my submission, that was an irrelevant consideration and
should not have figured in the judgment on the
Common Issues. I hope your Lordship understands where
I am coming from.
MR JUSTICE FRASER: No, I do. That is very clear. But just
to take a worked example, for example, in respect of
credit, there were issues of fact concerning
Mr Abdulla's contract formation.
LORD GRABINER: Indeed.
MR JUSTICE FRASER: And the claimant called, as is
conventional, its evidence of fact first and Mr Cavender
cross-examined Mr Abdulla quite extensively by reference
to what I will call his suspension interview, which was
the point at which the Post Office effectively sought
his side of the story for explanations for shortfall in
his branch accounts. In that interview, it was put to
Mr Abdulla that he had admitted false accounting, which
is a criminal offence, and that obviously went to his
credit.
Now, I assume, pausing there at that point, it can't
be said -- or maybe it can, but I would be grateful for
your guidance or your submissions on it. Can it be said
that that cross-examination of Mr Abdulla was irrelevant
because it went to the circumstances in which he was
suspended or --
LORD GRABINER: The answer to that is yes.
MR JUSTICE FRASER: You say it was irrelevant.
LORD GRABINER: Completely.
MR JUSTICE FRASER: When the Post Office made submissions in
closing that Mr Abdulla had been lying, how can those
submissions properly be considered without taking
account of the fact that the Post Office had put to
Mr Abdulla that he was guilty of a criminal offence?
LORD GRABINER: Would your Lordship bear with me?
I understand the point that you are putting to me.
I intend to come to the Mr Abdulla story in the judgment
and if I may, I will deal with it at that point.
MR JUSTICE FRASER: Yes, of course, yes.
LORD GRABINER: And then as I say, just coming back to the
point about those paragraphs in my learned friend's
skeleton --
MR JUSTICE FRASER: Yes.
LORD GRABINER: -- the claimants say that your Lordship
resolved matters in issue before you, and so they accept
that your Lordship has reached concluded findings. And
it follows that the essential difference between us is
that the claimants say that those findings were
necessary, that is their word in paragraph 9, to decide
the issues before you, and we say the opposite.
So that is a short point, but I think it does narrow
the issues somewhat.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Now, in support of their argument that
your Lordship had to decide these matters, they make
some play of the way that Post Office conducted the
trial. I anticipated these points, in part at least,
a few moments ago in my exchange with your Lordship, but
I can summarise them now. There are really two answers
to that point.
First, as explained in Parsons 14 and our skeleton,
this is irrelevant, ie the way that Post Office
conducted the trial. At all times, both before and
during the trial, Post Office made clear its position as
to the proper scope and limits of the Common Issues
trial. We never, ever altered that position, and
nothing that we did or said can fairly be said to have
amounted to some kind of waiver or enlargement of the
definition of those issues.
Secondly, the fact that Post Office was reluctant to
allow irrelevant evidence to go unchallenged cannot make
that evidence suddenly relevant.
The other side's proposition, if they do make
a proposition to that effect, is simply a non sequitur.
The conclusions that your Lordship reached either were
or were not necessary to decide the matters that were
before you.
Now, I would like to turn next to the judgment.
There are really seven matters in respect of which we
submit that your Lordship reached premature concluded
findings. If I can just give you the seven items first
and then I am going to deal with each of them through
the paragraphs in the judgment. I am sorry, it is
a tedious process, but it is the only way to do this
exercise.
So the seven matters are as follows: first of all,
Subpostmasters' experiences of using Horizon and its
functionality, including Subpostmasters' ability to
identify the causes of shortfalls; secondly,
Post Office's alleged knowledge of problems with
Horizon; thirdly, the quality and operation of the
helpline, in particular as an adjunct to the accounting
system; fourthly, the quality of Post Office's
investigations into shortfalls; fifthly, demands for
payment and threats of legal action allegedly made by
Post Office; sixthly, the circumstances in which
Subpostmasters' contracts were suspended or terminated;
and seventhly, the adequacy of training.
We need, as I indicated, to look at the relevant
paragraphs.
So taking the first item, Subpostmasters'
experiences of using Horizon and its functionality,
including Subpostmasters' ability to identify the causes
of shortfalls, so the way I propose to do this, and
I hope it accords with what would be convenient for
your Lordship, is if you have a copy of the judgment
handy --
MR JUSTICE FRASER: I do.
LORD GRABINER: -- then I will just go to the paragraphs,
and we have given full notice of all the matters that we
rely upon. So the first paragraph I want to go to is
172 {B7/29/64}.
MR JUSTICE FRASER: Is this numbered the first of your seven
categories?
LORD GRABINER: Yes.
MR JUSTICE FRASER: Yes, all right.
LORD GRABINER: So when I have just gone to the relevant
paragraphs, I am going to make a very brief submission,
invariably I will make a brief submission in relation to
the bit that we just emphasised.
MR JUSTICE FRASER: Yes.
LORD GRABINER: So in 172, the emphasised passage is:
"Mrs Stubbs is a careful and honest witness. She
did her best at the time to try and work out what was
happening, the reasons for it, and also notified the
helpline on numerous occasions, as well as keeping her
own separate paper records in an attempt, or more
accurately numerous and concerted attempts, to work out
precisely how these shortfalls could have arisen. None
of the Post Office personnel involved at the time with
Mrs Stubbs, who attempted to obtain some input or
explanation from Fujitsu were called as witnesses."
Then several lines below there:
"Mrs Stubbs ran the branch perfectly satisfactorily
for many years."
And a couple of lines below that:
"On the evidence before me in this trial, and upon
my assessment of Mrs Stubbs as a witness, I consider
that she is reliable, thorough and honest."
And honest."
For completeness, there you say:
"I accept her account of contract formation and the
fact that she never received, nor did she have any
knowledge of, the SPMC."
Your Lordship has come to a clear, concluded view in
that paragraph as to her evidence and credibility.
Those views went far beyond what was necessary to reach
a conclusion about the contractual documents she
received. If, at a subsequent trial, her credibility is
challenged, the claimants will obviously rely upon that
passage in your Lordship's judgment as showing that
your Lordship should and indeed would be bound to accept
the correctness of her evidence.
So in other words, it would have been perfectly
possible for your Lordship to have accepted her evidence
about the contract formation, but without making all the
observations that you have made, particularly in
relation to helpline and the satisfactory running of the
branch that she had undertaken over the period of the
contract, ie post-contractually.
MR JUSTICE FRASER: You have rather missed out the two
sentences in the middle of that paragraph that say:
"I make it quite clear that I do not speculate on
any of that, nor is it possible to know what the outcome
of the trial of the Horizon Issues will be later this
year."
LORD GRABINER: No, you do say that, and I am going to come
to that point towards the end of these submissions --
MR JUSTICE FRASER: I understand.
LORD GRABINER: -- because your Lordship does make that kind
of point, not always, but fairly regularly, during the
judgment.
MR JUSTICE FRASER: Yes, all right.
LORD GRABINER: I am going to say something about that, if
I may, at the appropriate moment.
Then 217, paragraph 217, this deals with the
position of Mr Sabir. And there are, just for context
your Lordship will glance down -- you must be, I am
afraid, very familiar with this judgment, of course --
but if you go down to 217, subparagraph 8, you say:
"Post Office's case is that Mr Sabir falsified his
accounts and misstated his stock by completing the
branch trading statements from the period he discovered
the mistake."
Then in 218:
"Mr Sabir's account is substantiated by the audit
report itself, prepared by the auditors two days after
the audit."
And then on to 219, five or six line down:
"Any findings as to specific breach or breaches must
await a later trial. I do, however, take this evidence
into account in reaching my conclusions on the category
two facts that are disputed by the Post Office. I deal
with that at the end of my review."
Now, an important issue in the Horizon trial is how
easy or difficult it was for Subpostmasters to work out
from Horizon what the accounting position was. In this
passage, your Lordship has reached firm conclusions on
the facts and also on the credibility of Mr Sabir.
Your Lordship also says here that you are not making any
findings on breach. As I say, I will come back to that
and similar sentences in the course of these
submissions.
302, paragraph 302. This is in relation to
Mrs Stockdale, and it is the third sentence.
"There were no explanations for these [this is
experience of running the branch, not a happy one,
unexplained shortfalls and so on] and there was no way
available for her to get to the bottom of them either."
At 309, a few paragraphs on:
"Mrs Stockdale was obviously in an extremely
difficult position. She did not know what product had
caused her loss."
And at 310:
"She felt that she had no choice but to agree.
I find that on the options presented to her at the time,
she indeed had no choice but to agree."
And in 311:
"Mrs Stockdale then took very sensible and extremely
thorough measures ..."
Then your Lordship describes the measures, and then
several lines down in the same paragraph:
"She explained that she spent hours with the
records, including her own paper records, trying to
investigate. These shortfalls simply kept occurring and
she could not work out why."
In these passages, your Lordship reached conclusions
as to how easy or difficult it was for Subpostmasters to
use Horizon to get to the bottom of shortfalls, and
alongside that, your Lordship made broad findings as to
the claimant witnesses' credibility. So again, in my
respectful submission, this has nothing to do with
contract formation issues which that trial should have
been concerned with, but everything to do with matters
yet to be the subject of future trials.
In 824 --
MR JUSTICE FRASER: Before we go to 824, though,
Mrs Stockdale was also accused of a criminal offence in
her cross-examination.
LORD GRABINER: Right.
MR JUSTICE FRASER: There was a dispute of fact about what
was said to her at an interview before she was
appointed. So in terms of resolving the dispute of fact
at the interview, do you say I should have made
a finding as to her -- or I was entitled to make
a finding as to her credit, but in doing so, shouldn't
have taken account of anything to do with her departure
from the Post Office?
LORD GRABINER: I do say that, yes.
MR JUSTICE FRASER: You do?
LORD GRABINER: Yes.
MR JUSTICE FRASER: Thank you very much.
LORD GRABINER: Then in 824, this is in relation to
Mr Bates.
MR JUSTICE FRASER: Yes.
LORD GRABINER: The last couple of sentences:
"He realised that the information for him to do so
was simply not available to him or to any Subpostmaster
in a branch. The Horizon system did not allow him to do
this."
Now, that is a conclusion of fact, but it is wholly
irrelevant for the purposes of the Common Issues, in my
submission.
That is all of piece with your Lordship's findings
in paragraphs 819 and 852. If we go to 819:
"The whole issue with the information available to
an SPM on Horizon is that they could not identify
discrepancies or shortfalls or understand the basis on
which transaction corrections [TCs] with which they
disagreed were issued."
Then in 852, roughly in the middle of the
paragraph --
MR JUSTICE FRASER: 852?
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: Just give me a second. Yes.
LORD GRABINER: "Unexplained shortfalls or discrepancies
became apparent at the end of a branch trading period.
It was simply not possible, on the information available
to an SPM, on the Horizon system, for them to identify
the day, product, and still less the time of day that
was responsible for this."
In my submission, that is classically a Horizon
Issue, but your Lordship has reached, on that point,
a concluded view.
Paragraph 569, that is the famous paragraph. It has
got lots of factual matrix points annexed to it.
Your Lordship will recall that paragraph. It is the
paragraph with lots of subparagraphs.
MR JUSTICE FRASER: Where I go through category 2 and
category 3 and make findings as to the factual matrix,
yes.
LORD GRABINER: And there are just a few of them that I want
to make reference to.
MR JUSTICE FRASER: I think it might break a record as being
the longest paragraph in the judgment, which is probably
not a particularly good record to break.
LORD GRABINER: You will be relieved to know that I am not
going to go through all the paragraphs.
MR JUSTICE FRASER: It runs on for a number of pages.
LORD GRABINER: Yes. The ones that I want to pick on are
51, and your Lordship says:
"The introduction of Horizon limited the claimants'
ability to investigate apparent shortfalls, particularly
as to the underlying cause thereof. Both this and 50
immediately preceding it are obvious on the evidence and
could readily have been agreed. It can't sensibly be
argued to the contrary, in my judgment."
So that is an Horizon conclusion, paragraph 61:
"The Post Office has, on occasion, detected that
Horizon generated errors, caused the appearance of
shortfalls and errors which the claimants themselves had
not been able to identify as the cause of those apparent
shortfalls."
Now, these are all matters for the Horizon trial.
These findings are made in general and unqualified
terms. They have a wide-ranging impact and are not
realistically going to be challengeable in later trials
in the light of further evidence and disclosure, because
what will be said when there is a debate about this in
a future trial, as inevitably there will be, is that the
other side will point to this analysis of your Lordship
and it is going to be impossible, in my respectful
submission, and unrealistic to expect your Lordship to
depart from those conclusions.
In 54 to 57, which I think you aggregate, the
passage there:
"I cannot make detailed findings about Fujitsu's
role on the basis of the evidence before me. However,
it is clear that Fujitsu were able to obtain greater
information about a particular branch's transactions
than either the Post Office or the Subpostmaster."
Then you say:
"How this was done and whether it included providing
a data transfer service between the central data centres
and clients of Post Office must await the Horizon
trial."
Notwithstanding that final caveat, this passage also
contains a clear finding on a Horizon Issue. The same
is true of the passage at 569, factual matrix point 59.
MR JUSTICE FRASER: Which Horizon Issue does that make
a finding on?
LORD GRABINER: Which one, my Lord, 59?
MR JUSTICE FRASER: No, before that, I think you said 54 to
57 makes a clear finding on a Horizon Issue.
LORD GRABINER: Yes.
MR JUSTICE FRASER: Which Horizon Issue? Maybe we can come
back to it if you want to.
LORD GRABINER: I think the point being here that the
information that should have been provided by the
Post Office or should have been available to the
Subpostmaster was not available, but it was apparently
available to Fujitsu, so it is a breach issue.
MR JUSTICE FRASER: Understood.
LORD GRABINER: Then matrix point 59, your Lordship says:
"I find in some instances there was discussion
internally at the Post Office about the altering of
branch transaction data directly and also of the
Post Office and of Fujitsu carrying out changes to
Horizon and/or transaction data which could affect
branch accounts. Mrs Van Den Bogerd accepted this could
be done. Further detailed findings on this will be
dealt with in a later trial."
So the implication from that is that you have made
some findings there and that more detailed ones would,
in fact, be dealt at the later trial, but for some
reason, your Lordship thought it was appropriate in that
trial to make those conclusions which I have just
identified.
Can I go to the next heading, which is "Post
Office's alleged knowledge of problems with Horizon".
MR JUSTICE FRASER: Yes.
LORD GRABINER: This is starting with paragraph 541. There
your Lordship says:
"Secondly, a number of contemporaneous documents
internal to the Post Office show that there has been, at
least to some degree, an awareness of Horizon problems
within the Post Office itself over a number of years."
Then in 543, in about the second or third lines, you
say:
"Behind the scenes, there were at least a number of
people within the Post Office who realised that there
were difficulties with the Horizon system."
Then in paragraph 1115, so you have to jump forward,
your Lordship says:
"Horizon was introduced in 2000 and from then
onwards, unexplained discrepancies and losses began to
be reported by SPMs. Internal documents obtained in
this litigation show that some personnel within the
Post Office believed at the time that at least some of
these were caused by Horizon."
And then the passages that I have been emphasising
in those paragraphs express a view on Post Office's
internal knowledge of the alleged problems with Horizon.
Now, those findings are going to be relied upon by
the other side in support of their allegations that
there was here deliberate concealment and deceit on the
part of Post Office.
Now, those are matters which are to be dealt with in
later trials. They are very, very important findings
and holdings and they are not provisional, they are
concluded views. And they are undoubtedly matters which
will going to arise in the later trials.
MR JUSTICE FRASER: But on that point, because it is,
I think, notable that you say those findings are going
to be relied upon to found deceit, if one goes back to
the extracts from the documents and look at 542, which
is where the reasons that underpin what I have said in
541 are identified, and have a look at 541.
At 542, for example, just looking at the first
extract of the contemporaneous document which is an
email:
"Both Frank Manning and Sue Lock work for
Post Office."
Ignore the underlining because that is my
underlining, but if you look over the page, this is in
relation to Mrs Stubbs, who was having certain problems
with Horizon, the phrase, "It is Horizon related", which
the sender of that email chose to put in bold. It then
goes on to say:
"The problems have only arisen since install and the
postmistress is now barking, and rightly so in my view.
Help, please."
Do you say that the conclusion of what that document
shows, which I have summarised in 543, is something that
I shouldn't have done?
LORD GRABINER: Definitely.
MR JUSTICE FRASER: So I shouldn't have given the summary of
the document.
LORD GRABINER: Definitely. Whether you did or not, you
certainly should not have expressed a view about it,
knowing that this will be a key issue at a future trial.
MR JUSTICE FRASER: Thank you very much. What about the
extract of the document itself which was relied on both
in evidence and in opening?
LORD GRABINER: I mean, I have no particular view about
that. What I am much more concerned about is what you
have said in the judgment and whether, through the eyes
of a fair-minded observer, it can be said that it is
possible for your Lordship to keep an open mind.
MR JUSTICE FRASER: Understood. Thank you very much.
LORD GRABINER: Could I go next to helpline.
MR JUSTICE FRASER: Yes.
LORD GRABINER: So paragraph 248, and this deals with
Mr Abdulla to whom we had a reference to a little
earlier:
"Turning to Mr Abdulla's operation of the branch,
I have already identified his account of how even
disputed transaction corrections had to be dealt with at
some stage prior to the next branch trading period by
clicking the 'accept now' button. He would contact
helpline six or seven times a month and was shocked at
the inadequate support."
Just below there, or next:
"He would often experience apparent shortfalls on
the days when he would perform balances, but could
rarely get through to the helplines on these occasions.
He thought the advisers were ill-informed and would
often give the impression of reading off a script."
In 249:
"He could not resolve these through the helpline."
So here your Lordship was accepting Mr Abdulla's
evidence both as to his subjective impression of the
service that he received and as to the points of fact,
such as whether he could get through to the helpline.
And I am sorry that I am beginning to sound like
a broken record, but these were not matters for the
first trial and, specifically, they are matters for
subsequent trials.
Now, these, 303:
"These shortfalls continued. On 15 October 2014,
there were unexplained shortfalls of over £3,500. When
she [and I think this is Mrs Stockdale] phoned the
helpline, she was told this was only £3,000 and it is
a drop in the ocean compared to some people's problems.
This contradicted an earlier statement from the helpline
when she had been told that she was the only SPM
experiencing these problems, which just made her feel
inadequate. I will track this particular shortfall
through in terms of her evidence."
And your Lordship does that, and at the end of that
paragraph or further on in it, your Lordship says:
"I accept this evidence by Mrs Stockdale. There can
be no doubt that the shortfall was clearly in dispute,
even on the Post Office's understanding of how disputes
were to be raised."
MR JUSTICE FRASER: I am sorry, I have lost where you are.
LORD GRABINER: I am sorry, it is the end of paragraph 303.
Yes.
MR JUSTICE FRASER: Yes, thank you.
LORD GRABINER: "I accept that evidence."
MR JUSTICE FRASER: Yes, thank you.
LORD GRABINER: So in my submission, this is a good example
of your Lordship undertaking a detailed analysis of the
evidence, in this case, that of Mrs Stockdale, and her
evidence is expressly accepted by your Lordship as
accurate. This was not a matter for determination in
the first trial and when this issue does arise at
a future trial, a fair-minded observer of this story
would say that your Lordship had reached a concluded
view as to the accuracy and reliability of
Mrs Stockdale's testimony.
Your Lordship's concluded view about her evidence
was then reinforced in your summary of her evidence and
for that purpose, if we go forward to paragraph 328.
Your Lordship says there:
"I found Mrs Stockdale to be a careful and accurate
witness and I consider she was telling me the truth."
Then you say at the end of that paragraph:
"I'm making no findings in respect of breach,
causation or loss."
As I say, I will come back to that mantra later on
in these submissions.
And at 357, in relation to Mrs Dar, your Lordship
says:
"Her experience with the helpline was not a positive
one. She contacted them two to three times a month,
often in relation to apparent shortfalls or balances.
Most of the time, she was told to recount and if there
was still a shortfall, she had to make this good, which
means pay it herself. Once she was told how to get
around the problem by altering the stock figures to
balance, which shocked her, and she considered there was
some kind of fault within the system."
So this, in my submission, is the same point.
Your Lordship here accepted Mrs Dar's evidence on what
happened when she called the helpline, although this is
a matter yet to be addressed in a different trial.
At 556, still on the helpline, 556, my Lord, yes,
your Lordship says:
"The helpline does not seem to have operated in that
way and on the evidence before me for the issues in this
trial, the matters in dispute reported to the helpline
were not treated differently even when they were
reported. The lead claimants' evidence made it clear
that just getting through to the helpline was an
achievement in itself. When this was finally
accomplished, the experience would be variable at best
and does not seem to have come close to resolving any of
the disputes."
Then your Lordship can read the intervening
passages. Then at the end, you say that was simply not
made out on the evidence before you, that is the
position of Post Office.
This paragraph of the judgment reveals your Lordship
broadly accepting the claimants' case on the quality of
the helpline and how the disputes process functioned,
but again, these are prime issues for a resolution at
a subsequent breach trial.
In that passage, your Lordship is making no
distinction between the contractual obligation involved
in notifying a dispute via the helpline. So pausing
there, that would be entirely understandable in the
context of the contract issues or those issues, working
out or deciding what the contractual obligation was,
rather than what is, in fact, happening in that
paragraph, namely whether or not the Post Office
fulfilled its obligations, ie was it a breach of
contract, which is an entirely distinct, self-contained
issue for a later trial.
At 558, at the beginning of the paragraph:
"It is therefore the case that, on the evidence
before me, the helpline did not operate for the lead
claimants in the manner that the Post Office contended
for."
Then you say at the end of that paragraph:
"Detailed findings of fact as to this must however
wait for a later trial."
So this was a conclusory statement about what
happened when claimants called the helpline, it was not
relevant, in my submission, to any Common Issues. It
will be relevant at a future trial. And your Lordship's
use of the word "detailed" at the end of that paragraph
rather reinforces the concern. The implication from
that word is a recognition that you were making findings
of fact, albeit in outline, and that when you get to the
later trial, you are going to elaborate on those
findings in the light of the evidence in that case. But
the idea that you are going to be in a position fairly
to depart from those conclusions, in my submission, is
the gravamen of the charge.
MR JUSTICE FRASER: Is it not relevant though to the status
of a branch trading statement?
LORD GRABINER: With great respect, it isn't. The status,
the particular status of a branch trading statement,
would depend upon the facts surrounding that branch
statement. So, for example, suppose the complaint was,
"Well, I have got the branch statement, I was forced to
press the accept button, and I did so, and then when
I tried to register my complaint through the helpline,
I was unable to do so for whatever reason".
Now, the correctness or otherwise of that debate is
a breach issue. If and to the extent that there was
a failure of the helpline, operating in conjunction with
the statement, to enable that complaint to be
registered, that is a breach of contract complaint
understandably. But to investigate those matters at the
contract creation stage, in my submission, was a wrong
step.
MR JUSTICE FRASER: The Common Issues didn't only involve
contract creation, because they also involved issues of
agency.
LORD GRABINER: Yes.
MR JUSTICE FRASER: But it was factually in issue for about
three weeks of the Common Issues trial as to what
options were available to a Subpostmaster in respect of
how they would perform their branch accounts.
So, for example, if we just look back at
paragraph 558, which you have been drawing to my
attention, the meaning of the phrase in inverted commas
in the ante-penultimate line, "settled centrally", took
some time to unravel. By the time the trial ended, the
factual position was almost essentially agreed, but it
took some weeks to get there.
And so far as that point is concerned, is your
submission that it would have been necessary or
acceptable to decide what "settled centrally" meant, but
I shouldn't have then gone on to consider the mechanism
of dealing with the helpline, is that right?
LORD GRABINER: Absolutely.
MR JUSTICE FRASER: All right.
LORD GRABINER: Because by definition, by definition, by
engaging in that investigation and indeed reaching some
conclusions in relation to the functioning and operation
of the helpline, what is happening is that there is
a trespassing into later matters which are not relevant
to the immediate question.
For example, the question of the meaning of "settled
centrally" would have been a classic example of
something that needed to be determined in the
Common Issues trial. Construction questions were open
for debate, absolutely.
MR JUSTICE FRASER: Yes, but what then do you say about the
Post Office evidence that had been contained in the
Post Office's witness statements about the operation of
the helpline, because there was evidence on it from
both parties?
LORD GRABINER: Well, all I can say about that is that the
key point in this debate is the relationship between the
functioning of the helpline and the account statement --
MR JUSTICE FRASER: Right.
LORD GRABINER: -- and in what circumstances the account
statement could be relied upon or would or would not be
binding? And that is classically a contract question,
if I can put it in a very concertinaed way. But to
investigate events which are really breach events and
then to make findings about them after the event was, in
my submission, a false step.
MR JUSTICE FRASER: I understand, thank you very much.
LORD GRABINER: And it is trite law, of course, but the fact
is that what was not legitimate was to participate in
a post-contractual factual investigation, is what it
comes to. The factual investigation of that kind is
entirely distinct from matters which should have been
investigated at the Common Issues trial. The
contractual position as to the trading statement and the
helpline falls to be analysed at the time of
contracting. Classic law.
For this purpose, the factual matrix must be
examined at that point in time, but what happened here
was that there is then an investigation of, by
definition, post-contractual events and conclusions in
relation to matters such as alleged breaches of
contract, for example as to the effectiveness of the
helpline after the event to improve or clarify the
factual matrix, which is absolutely impermissible.
Now, the next topic of the seven is how good or bad
Post Office's investigations of shortfalls were, and
whether Post Office disclosed what it knew about
shortfalls to Subpostmasters.
MR JUSTICE FRASER: Can I just check, before you move on to
that. The third of your seven categories, I think we
went to 248, 303, 357, 556 and 558, is that right?
LORD GRABINER: That is exactly right.
MR JUSTICE FRASER: Now we are going on to the fourth of the
seven.
LORD GRABINER: Yes. I haven't gone back to count, but
I think it is the fourth.
MR JUSTICE FRASER: Yes.
LORD GRABINER: The first paragraph that I want to refer to
is 115.
MR JUSTICE FRASER: 115, yes.
LORD GRABINER: Your Lordship says:
"Putting entirely to one side the fact that it has
taken Post Office 15 months to finalise how it was to
resolve this matter and Mr Bates was given only 16 days
to reply."
And your Lordship says:
"Which attitude appears to me to be symptomatic of
how Post Office regularly treated at least some of its
SPMs."
That is a very strong statement, my Lord, and that
is exactly the kind of statement -- and I appreciate
that was and is your Lordship's view, but it is not
necessary for the purposes of the judgment that you were
dealing with, or that you were giving. And also, it is
obviously going to be relied upon by the other side. If
I were on the other side, I would be banging the drum on
a sentence like that. I would be accusing Post Office
of being a disgraceful bunch and, "That is already
your Lordship's view: see your judgment in the
Common Issues case", that is obvious.
MR JUSTICE FRASER: When you say, "That is already
your Lordship's view", do you mean that you are
summarising what Mr Green would be saying, relying on?
You are not telling me -- I don't assume you are
expressing that as that is a view that I, the judge,
currently hold.
LORD GRABINER: What I am submitting is that having, so to
speak, committed yourself in print on that point, a
fair-minded -- I don't care what Mr Green will say or
won't say or indeed what I think or say. It is all
irrelevant, and in a sense, what your Lordship thinks or
says is irrelevant for this purpose because it is an
objective test. The fair-minded observer will look at
this along with all the other material that we are going
through at the moment and will have to come to
a judgment as to whether your Lordship can fairly
approach the future trials given the conclusive
expression of opinion that you have given there.
MR JUSTICE FRASER: Yes.
LORD GRABINER: It is just another example. And then in
subparagraph 1 of 115, you say in the first line:
"It suggests that Mr Bates' experience was not an
isolated one."
Then we can leave over 1 and go straight to 2,
sub-2, the second sentence:
"I'm satisfied that if he had simply paid the amount
to the Post Office as demanded in the Post Office letter
of 16 July 2001, which sought as matter of some urgency
that he 'advise me of your proposals to now make good
the loss', in other words, how he would pay the
Post Office that money which was at that stage demanded,
this would not have occurred.
"3. No explanation was provided to Mr Bates as to
how the shortfall had occurred.
"5. The consistent policy, if indeed there was one,
seems to have been that the Post Office would simply
claim all such sums from the SPMs in question."
These are all findings to the effect that
Post Office's investigation was, in your Lordship's
view, inadequate and that Post Office demanded payment
without a proper basis. Now, in my respectful
submission, those findings had no place in the
Common Issues trial. They trespass into matters which
we all know fall to be determined in a later case or
cases.
165 deals with the evidence of Mrs Stubbs, and if we
go 15 or 20 lines down, maybe fewer than 20,
your Lordship says:
"It might be thought that if there were any proper
investigation which actually reported on this, it could
and should have been put to Mrs Stubbs, but if what was
put to Mrs Stubbs in this trial is said by the
Post Office to amount to such an investigation, then
it is telling. The investigation appears, on the
material deployed in this Common Issues trial, to have
consisted of nothing more than Fujitsu asserting that
there was nothing wrong with the kit. That is not, in
my judgment, an investigation under any normal
understanding or meaning of that word in society
generally."
That is really the same point that we just saw for
Mr Bates. Your Lordship is saying that Post Office's
investigation was inadequate and that Post Office
demanded payment without a proper basis. Again, in my
submission, those findings had no place in the
Common Issues trial.
In 208, and your Lordship can glance at the
paragraph for context, and there was a sort of help
issue that is identified there, this is in relation to
Mr Sabir, but your Lordship concludes in the last
sentence of 208:
"That help simply never came."
MR JUSTICE FRASER: I am sorry.
LORD GRABINER: 208.
MR JUSTICE FRASER: I am in 208.
LORD GRABINER: The last sentence. {B7/29/74}
MR JUSTICE FRASER: "This was counted against him at the
time and used as a --"
LORD GRABINER: "That help simply never came."
MR JUSTICE FRASER: That is in the middle.
LORD GRABINER: I am sorry. I don't have the whole
paragraph in front of me.
MR JUSTICE FRASER: That is in the middle.
LORD GRABINER: Very good. That is also a finding as to how
co-operative or unco-operative Post Office was in trying
to establish the cause of the shortfall. In my
submission, it is a breach question.
MR JUSTICE FRASER: Yes.
LORD GRABINER: 217, sub-2:
"Mr Sabir had no separate record and no access on
Horizon to the number of scratchcards he should have
had."
And then your Lordship says:
"He requested this information from the Post Office,
who did have it. It was not provided. He used the
helpline to notify Post Office of a problem. This is
the way that the Post Office maintained disputes should
be notified."
Then in 223:
"In my judgment, the attack on Mr Sabir's credit,
which I have identified above, fundamentally ignores the
reality. The fact that he had contacted the helpline
and sought assistance and the fact that the vital piece
of information he needed, the number of scratchcards the
system was showing that he should have, was so readily
accessible to the Post Office auditors, but never
provided to him."
So again, those are findings that Post Office did
not supply Mr Sabir with information, which he could not
obtain himself through Horizon and which could have
enabled him to establish the extent of the shortfall.
Again, those are findings on Horizon and on breach.
MR JUSTICE FRASER: I did have to make a finding on his
credit, though, did I not?
LORD GRABINER: That may be. You mean because of challenge
in relation to the contract formation?
MR JUSTICE FRASER: There were various challenges to
Mr Sabir's credit, but not least -- I think it is
a point that has been --
LORD GRABINER: I am told by Mr Cavender that we never
relied on any of this material.
MR JUSTICE FRASER: Mr Cavender -- well, the transcript
shows the way that Mr Sabir was cross-examined, but
let's not waste time on that at the moment. So that is
223.
LORD GRABINER: 557, still under the same heading, 557:
"Mrs Stockdale telephoned the helpline. She then
assumed the debt recovery letter she received meant an
investigation had been done and resolved against her.
That assumption was not correct. Mrs Stubbs had been
pressing for many years to find out the outcome of
whatever investigation was in fact performed in her
case. In both cases, the helpline had been notified by
each of these lead claimants. In neither case
[your Lordship says] could the Post Office produce and
put to each of these lead claimants or show the court
the end product of any such investigation."
So here your Lordship found that Post Office had not
conducted an investigation into Mrs Stockdale's
shortfalls and your Lordship also criticised Post Office
for not adducing what would have been inadmissible
breach of contract evidence. So if they had produced
this material at that trial, it would actually not have
been relevant to the issues in that trial, but obviously
it would have been relevant material for the purposes of
a breach trial or a trial about Horizon and its
effectiveness or otherwise.
MR JUSTICE FRASER: Mr Cavender did put to Mrs Stubbs at
least that there had been an investigation on the basis
that -- I mean, it is the same point perhaps as the one
that I explored with you earlier about Mr Sabir, but if
a positive point is put to a witness, for example, that
an investigation has happened, do you say I should weigh
that up in respect of the credit of the witness so far
as contract formation is concerned but then stop there,
effectively?
LORD GRABINER: Yes, because it would have been ex hypothesi
cross-examination on irrelevant material. I mean,
I think what is revealed by just our exchanges here this
morning, my Lord, is the absolute difficulty of keeping
a clear bright line between the matters which were the
subject of that trial, bearing in mind the fact that
under the case management arrangement, there were going
to be future trials where these matters would be
investigated. It is a very -- it is a difficult task,
I absolutely respect that and I accept that, but we do
respectfully submit that you went over the line.
MR JUSTICE FRASER: I understand.
LORD GRABINER: Mr Cavender draws to my attention the
closing transcript on {Day 14/46}.
MR JUSTICE FRASER: Do you want me to pull that up on the
screen?
LORD GRABINER: I can just read it into the transcript.
Your Lordship's question was:
"So far as the claimants' evidence is concerned,
therefore, you say treat it all with caution for all the
reasons that you have gone through, but you are inviting
me not to make any findings on their credibility.
"MR CAVENDER: Indeed.
"MR JUSTICE FRASER: Any adverse findings on their
credibility, is that right?
"MR CAVENDER: Yes, because to do so you would have
to make findings as to the accounting system, to the
TCs, what happened in fact, and you haven't had full
evidence on that by any means."
Then on the following page of the transcript,
{Day 14/51}, line 12, Mr Green:
"I'm sorry to interrupt, but I have let this run
since {Day14/38:14}, what my learned friend is saying.
He said someone in his position might say Mr Abdulla
lied. Well, that is exactly what he does say at
paragraph 592 of his closing submissions. So I don't
understand --"
Then your Lordship interrupted and said:
"MR JUSTICE FRASER: All right.
"MR GREEN: -- where he is on it.
"MR CAVENDER: But I don't ask for findings on it.
"MR JUSTICE FRASER: Mr Green, as a rule, I am not
saying you can't make these points, but you might want
to store them up.
"MR GREEN: I am grateful."
MR JUSTICE FRASER: The position on finding so far as credit
were concerned, I gave the Post Office an opportunity to
consider their position on that after the oral
submissions were over, because I had difficulty
following it. And there was a written explanation
provided by the Post Office which explained to me what
the Post Office said I should do in terms of findings as
to credit, because as the exchange that you have just
read out demonstrates, on the one hand, the closing
submissions accuse some of the lead claimants of lying,
but orally, Mr Cavender said, "Don't make findings on
credit". I am sure the dichotomy in those two positions
needed to be resolved.
So I~think the correct place to start or finish in
terms of findings as to credit is probably what the
Post Office said in their written submissions after the
hearing.
LORD GRABINER: I --
MR JUSTICE FRASER: I understand your submission.
LORD GRABINER: What I would respectfully submit is that
bearing in mind the fact that there was yet to be
a breach trial --
MR JUSTICE FRASER: I understand.
LORD GRABINER: -- enormous care was required --
MR JUSTICE FRASER: I understand.
LORD GRABINER: -- in order to ensure that the concerns that
we are now expressing would not arise.
MR JUSTICE FRASER: I entirely understand.
LORD GRABINER: Now, my Lord, I don't know if that is a good
moment to break? I could, because I am just going to
a new topic.
MR JUSTICE FRASER: If you have finished number four of your
seven ...
LORD GRABINER: Would you bear with me a moment.
MR JUSTICE FRASER: The last paragraph before I distracted
you I think was 557.
LORD GRABINER: You did not distract me. Yes, that is
convenient. That would be a convenient moment. I have
got quite a lot still to get through, but I will go as
fast as I can.
MR JUSTICE FRASER: Understood. Shall we say five minutes?
LORD GRABINER: My Lord, yes, I am grateful.
MR JUSTICE FRASER: We will have a five minute break. I am
going to see if I can turn the temperature down a bit.
It seems to be quite hot. I don't know if I am alone.
LORD GRABINER: You are quite right, it is.
MR JUSTICE FRASER: I will see if I can do something about
that. Five minutes.
(11.50 am)
(Short break)
(11.55 am)
LORD GRABINER: My Lord, there just one point from this
morning. Your Lordship wanted to know which Horizon
Issues. This was in the context of my referring to
paragraph 569 --
MR JUSTICE FRASER: Yes.
LORD GRABINER: -- and those points 54 to 57.
MR JUSTICE FRASER: Yes.
LORD GRABINER: And the Horizon Issues referred to were
issues 7 to 9 --
MR JUSTICE FRASER: Thank you very much.
LORD GRABINER: -- which are in B7/14/4.
MR JUSTICE FRASER: Thank you very much.
LORD GRABINER: Turning then to the next topic, and I am
going to try to speed up if I may, because there is
going to be a time issue.
So the next topic is whether Post Office sent
unjustified demands for payment and/or threats of legal
action to SPMs. Paragraph 222:
"There can be no excuse, in my judgment, for an
entity such as Post Office to misstate in such clearly
express terms in letters that threaten legal action and
the extent of the contractual obligation upon an SPM for
losses. The only reason for doing so in my judgment
must have been to lead recipients to believe that they
had absolutely no option but to pay the sums demanded.
It is oppressive behaviour."
In 327, towards the end of it:
"The documents available in this litigation show
that this simply was not true and she had expressly done
both of those things."
This is in relation to Mrs Stockdale. At 462, after
a few lines:
"This conclusion means that the Post Office fraud
prevention and debt recovery procedures will be used
against SPMs in this position unless an SPM can show
that the shortfall or discrepancy was not their fault."
Then your Lordship says:
"This judgment does not contain findings on breach,
loss or causation."
So in the same vein, your Lordship made a number of
findings in your section of the factual matrix at
paragraph 569, which go to show how transaction
corrections were treated. So for example, factual
matrix point 35:
"However, even amounts that were disputed in this
way were treated by Post Office as debts owed by the
SPM."
And factual matrix point 40:
"The defendant sought recovery from the claimants
for apparent shortfalls, and I would add also on the
evidence that the Post Office did this regardless of
whether disputes had been reported to the helpline or
not."
And then factual matrix point 42:
"The Post Office required claimants to accept
changes to records of branch transactions unless the
claimant was effectively able to prove that the
transaction correction was not correct."
And factual matrix point 43:
"The Post Office did sometimes issue transaction
corrections after the end of the branch trading period
in which the transaction had taken place."
So, in my submission, none of this was relevant
matrix for the Common Issues trial.
Then at 7231:
"Even though Post Office's own case on the relevant
provision in the SPMC [that is one of the contracts]
dealing with liability for losses requires negligence or
fault on the part of an SPMC, this was routinely and
comprehensively ignored by Post Office, who sent letters
of demand for disputed sums in express terms as though
SPM had strict liability for losses. These letters
entirely misstate the legal basis of SPMs' liability
even where they had been appointed under the SPMC."
723, subparagraph 4:
"The approach of the Post Office is to brook no
dissent. It will adopt whatever measures are necessary
to achieve this."
And then after the reference to section 15,
clause 19 of the SPMC, your Lordship says:
"Other parts of section 15 deals with the
requirement for caution, but I find it somewhat unusual
and potentially oppressive that the Post Office should
seek to use the Official Secrets Acts in this way.
I don't see how in a routine case these Acts could
possibly apply in the way suggested by a Post Office in
this contract."
So again, in my submission, all of this was
irrelevant to the Common Issues trial.
The next topic is whether Post Office acted properly
in suspending and/or terminating SPMs' contract. The
relevant paragraph in the judgment is paragraph 20
{B7/29/8}. Perhaps your Lordship would just look at
this to remind your Lordship of it for context. This is
all about termination, sometimes abrupt termination, and
you are looking at Mr Bates' position and Mrs Stubbs'
position.
Then, in my submission, this again shows
your Lordship's hand in a concluded way. The reasonable
onlooker would think that your Lordship's mind is at
least or may be closed as to the proprietary of
Post Office's actions in effecting these suspension and
terminations. Again, this is wholly irrelevant to the
Common Issues.
Paragraph 263, {B7/29/90} just for context, this is
in relation to the letter sent to Mr Abdulla dismissing
his internal appeal. Your Lordship will recall all of
this, and then 263 sets out the letter. 264,
your Lordship says:
"It's not clear if 'my investigation' included any
further information from or investigation of the
situation regarding Camelot either by Mrs Ridge or
Mr Mylchreest. Given the timescale, this appears
unlikely. Certainly no documents were produced in this
trial that suggested it was."
And so on. If your Lordship would look at the rest
of that paragraph and 402 for context. Then after the
reference to the statement and the appeals process in
the rehearing, there is a reference to Mrs Ridge, and
then about halfway through that paragraph:
"It is more than an academic nicety. Terminating
without notice is a severe step. A right of appeal was
supposed to be present under the SPMC. The Post
Office's own witnesses do not know what that appeal
consisted of and what the test was. This is deeply
unsatisfactory."
403:
"I do not know why risk to the Post Office
reputation should be a relevant factor in such an
appeal, which is what I find Mr Breeden's evidence to
consist of, or why SPM's entitlement to be heard on
appeal would differ from case to case."
Further down:
"Unjustified suspension ought to be a factor in
favour of an appeal succeeding on any sensible view."
At the end of that paragraph:
"The reputation of the Post Office would best be
served by appeals that were justified, succeeding, and
those that were not, failing, should not have formed any
part of the criteria."
479 {B7/29/147} a long way into it:
"Given the odd combination of various items all for
£1,092 - which she accepted 'was a bit odd' - this
information would evidently have been very useful."
Then a couple of lines on:
"I found he was giving her an account concerning
£1,092 which she would have been more willing to
consider was truthful had she had the Excel spreadsheet
at the interview."
And so on. Your Lordship can read to the end of
that paragraph:
480 {B7/29/148}:
"The hearing process in respect of Mr Abdulla's
suspension and eventual termination therefore proceeded
with incomplete information being provided to the person
tasked with conducting the hearing, making this
important decision, and still less information being
given to Mr Abdulla by the Post Office."
Towards the end of that paragraph:
"I make no findings on any matters connected with
breach, causation or loss."
All of that consists of criticisms of Post Office's
process for determining whether or not to suspend or
terminate a postmaster. They go directly to allegations
of breach of contract and have nothing whatever to do
with the contractual matters or the Common Issues --
I am always concertinaing into contract matters, but
your Lordship knows what I mean by that -- which were
the subject of that trial.
In 514 {B7/29/155}:
"Mr Carpenter was also responsible for the decision
to suspend Mrs Stockdale. Because this happened after
the litigation had commenced, I was most interested in
the exact sequence."
Then your Lordship goes through a good deal, or you
recite a good deal, of extract from the transcript, and
then after going through summarising and setting out the
transcript at 515, your Lordship says:
"The following pertinent points arise from this
evidence, which I found of considerable interest."
And then you set out your conclusions from that
evidence, and at paragraph 5 underneath as part of 515:
"Mr Carpenter wasn't 100% sure that he did not know
Mrs Stockdale was a claimant when he recommended her
suspension, even though on his evidence he found out on
the day. That does not seem to have had any effect on
his recommendation to suspend at all."
In 516, at the end of the paragraph:
"Also expressly stated to her factually untrue
statements, namely she had not contacted the NBSC or
asked Post Office for assistance. I find that she had."
517:
"It must be understood with crystal clarity."
I think your Lordship will recall this paragraph.
And then a few lines down:
"However, even putting it at its best for the
Post Office, such conduct towards Mrs Stockdale during
this early stage of the litigation could potentially be
construed as threatening, oppressive and potentially
discouraging to other potential claimants to become
involved in the litigation, whether by accident or
design. I can think of no reason why such an approach
was taken unilaterally by Post Office in such a way
without the Post Office's solicitors giving advance
notice to her solicitors so a less confrontational and
aggressive path was adopted. However, even once it was
done and she that was suspended Post Office continued to
act in a highly regrettable fashion."
519, a few lines down:
"Post Office put itself in the position of giving
itself the appearance that this behaviour towards her
was directly influenced by her having issued
proceedings."
So that was a response to the fact that she had
commenced proceedings against her, appears to be
your Lordship's view.
Now, as to those passages your Lordship said that
these points were of considerable interest, but, in my
submission, they were obviously not relevant to the
Common Issues, not least because they concern events
post-dating the commencement of the litigation, which
your Lordship very fairly points out. A fair reading of
the analysis is that your Lordship was criticising
Post Office for its suspension decision-making, which is
a serious criticism of systems adopted by the
Post Office in its dealings with Subpostmasters.
This also contains findings as to the threats and
the hostile statements that the Post Office allegedly
made. These points bear on the breach issues which are
to be the subject of future trials.
Then in 723, sub-2, there is a discussion about
legal representation in the Post Office interview
process in connection with a suspension mechanism, and
then your Lordship says:
"Regardless of whether this is justified or not
[ie the fact that you can't have representation], the
specific grounds and proper particulars of why they face
potential termination are not even clearly identified in
advance to the SPM in question. Additionally,
information directly relevant to the grounds or at least
what the Post Office is concerned about, in the absence
of properly identified grounds, is not provided to the
SPM either, or at least not in the case of lead
claimants who face such procedures.
"Mr Abdulla tried at his interview to explain the
situation regarding TCs and of the lottery. He was
disbelieved. The documents available in the trial show
that whatever else he had done, he was telling the truth
about the existence of these TCs. Neither he nor the
interviewer had this information available to him at the
time."
Again, these are criticisms of Post Office's
termination procedure. They are irrelevant, in my
submission, to the Common Issues. They might be very
relevant indeed in future trials.
The next topic is training, paragraph 104, and there
is just one emphasised passage in that paragraph. This
is in relation to Mr Bates:
"There was no explanation for how to identify the
cause of any shortfalls or discrepancies or how to
dispute them."
105 is part of that, but there is no specific piece
that I want to make reference to. But again, in my
submission, this is all irrelevant post-contractual
evidence.
Your Lordship made similar findings or comments in
relation to Mrs Stubbs in paragraph 142, where
your Lordship says in the middle of the paragraph:
"The training did include balancing, but did not
include shortfalls, how to get to the root cause of them
or how they should be disputed."
Then looking at Mr Sabir, this is paragraph 193:
"Thereafter, Mr Sabir accepted the appointment and
received training."
Then a long way into that paragraph:
"Mr Sabir's evidence on this, which I accept,
matches the other evidence from other lead claimants
about in branch training. It is characterised by the
trainers observing rather than training and also by
early departures from the branch itself by the trainers.
I do, however, make these comments without making
findings on anything to do with breach, causation or
loss."
And I will come back to that mantra, if I may.
MR JUSTICE FRASER: Is that at the end of 193? Is that the
part that you have just read?
LORD GRABINER: Yes, exactly right. Yes, precisely.
And:
"Mrs Stockdale [at 297] was accepted as an SPM and
had some training. She attended the classroom training
with her son. She did not have all the training she was
told she would receive."
And then there is some explanation of that factual
context.
So in that paragraph, Mrs Stockdale's evidence is
summarised about her allegations of deficiencies in the
training process, and the third sentence is at least
a partial acceptance of her evidence on a topic that was
not before the court in that trial.
Then for Mr Abdulla, paragraph 246, the second
sentence or third sentence:
"This did not include balancing in any detail, if at
all."
This is in relation to the training he was supposed
to have got.
Then in 247, I think this is in relation to
Mr Sabir, the last couple of sentences:
"This included conducting a balance. He was told
that he had to make good any losses and he was not told
how to investigate or resolve discrepancies or apparent
shortfalls. He was simply told to contact the
helpline."
And finally Mrs Dar:
"Mrs Dar considered [on the fourth or fifth line]
the training was inadequate."
MR JUSTICE FRASER: Which paragraph?
LORD GRABINER: Paragraph 346. So that is in about the sort
of third or fourth line:
"Mrs Dar considered the training inadequate."
And at the end of the paragraph:
"Mrs Guthrie spent some of her time trying to fix
problems with Horizon rather than doing the induction
training that Mrs Dar was expecting."
So here your Lordship was accepting Mrs Dar's
evidence at face value both as to what she believed
about the quality of the training and as to what
happened, notwithstanding the fact that the training
issue is for a later trial.
In paragraph 352, I think we are still with
Mrs Guthrie and Mrs Dar, and at the end of that
paragraph, that is 352:
"Mrs Guthrie did not attend on Mrs Dar's first
balance day as she was supposed to. Mrs Guthrie also
said she would come back to give further training and
support. In fact she did not, at least not until some
months later on 15 July 2015, when she came back to
carry out an audit."
Paragraph 569, factual matrix point 70:
"On the evidence of six lead claimants, even when
further training was specifically questioned, it was not
provided."
437:
"Nowhere in the training or the interview or
anywhere else is there any recognition of how to deal
with a shortage, discrepancy of disputed TC of any order
of magnitude, still less those of the six lead
claimants."
Then this paragraph expresses, in my submission,
a concluded view on the content and quality of the
training.
955:
"One feature which seemed to be wholly absent from
the training courses run by the Post Office for the lead
claimants was any sort of assessment or test of
competence at the end of the training."
Then further down the paragraph:
"This situation is in no one's interest. In my
judgment, I would go further and say it is contrary to
business logic. Although there was some in-branch
training, the approach to that did not appear to be
uniform either. It can be seen [a couple of lines down]
that inadequate training is not likely to be readily
discernible to the Post Office."
MR JUSTICE FRASER: That rather skips over the introductory
sentence to 954, though, doesn't it:
"I have certain non-binding observations on the
evidence given before me by both sides in terms of
training."
LORD GRABINER: Your Lordship's point is the non-binding
point.
MR JUSTICE FRASER: And that it was evidence from both
sides.
LORD GRABINER: Okay.
MR JUSTICE FRASER: But I think, if I understand your
submissions correctly, I should have resisted the
temptation to do that.
LORD GRABINER: Precisely.
MR JUSTICE FRASER: Right. Thank you very much.
LORD GRABINER: So the paragraphs that I have been drawing
to your Lordship's attention in this context reveal, in
my submission, concluded views and observations on
matters arising for determination in subsequent trials.
We have done a separate exercise. Actually, I have done
this separate exercise, but I hope it is nonetheless
accurate. So these paragraphs appear in the course of
very extensive recitation by your Lordship and analysis
of the evidence of each of the lead claimants.
So it is interesting. For the record, Mr Bates,
your Lordship deals with his evidence between
paragraphs 69 and 124, 55 paragraphs. Mrs Stubbs,
paragraphs 125 to 172, 47 paragraphs. Mr Sabir,
paragraphs 173 to 223, 50 paragraphs, Mr Abdulla,
paragraphs 224 to 274, 50 paragraphs. Mrs Stockdale,
paragraphs 275 to 328, 53 paragraphs. Mrs Dar,
paragraphs 329 to 364, 35 paragraphs.
The point I want to make is that the individual
paragraphs I have been drawing to your Lordship's
attention were not observations by the way. In each
case, they came out of a very, very detailed scrutiny of
the witnesses' testimony. And it is obvious that in
a future case when these points are litigated, breach,
Horizon and so on, there is at least a real possibility
that your Lordship will simply not be able to revisit
your own conclusions with an open mind.
The other side will say you could not have done
a more thorough analysis of the evidence that you
received from each of these witnesses, and when you were
expressing concluded views about them, they were what
they are; concluded views which are now immovable
regardless of the evidence which might subsequently be
given in one or other of those later trials.
So, in my submission, the fair-minded observer of
this story would perceive that as a real and concerning
risk.
If I can turn away now from the individual seven
items that I have been addressing. So in addition to
all the points I have been making, there is a separate
category of examples of what we call negative findings
or comments as to Post Office's integrity and behaviour.
And the passages to which I now refer, taken together
with the matters that I have already dealt with,
reinforce our concern that your Lordship's mind is
closed against Post Office.
That concern, we submit, would be shared by
a reasonable observer possessed of the facts.
MR JUSTICE FRASER: I think you mean gives the appearance of
being closed.
LORD GRABINER: Yes.
MR JUSTICE FRASER: Because if it were your case that it
were closed, it would be an application based on actual,
not apparent, bias.
LORD GRABINER: I apologise for having misspoken.
MR JUSTICE FRASER: It is a question of my being clear.
LORD GRABINER: No, you should be absolutely clear, there is
no such allegation being made.
So under the particular headings that we have
devised, first of all, Post Office's alleged
mistreatment of Subpostmasters, or indeed mistresses.
Paragraph 117:
"The full subsequent trial of Mr Bates' claim will
show what if any consideration was given at the
Post Office internally not only to this shortfall but
others, if there were others, in the period December
2000 to March 2002. If the Post Office did in reality
do what Mr Bates suggested they did, namely bury their
heads in the hand, press on regardless and press
numerous SPMs for shortfalls and discrepancies caused by
the Horizon system, that would be behaviour of an
extraordinary kind, and given the criminal implications
for some SPMs may be extraordinarily serious."
Then you say at the end of that paragraph:
"I make no findings either way at this stage of the
proceedings in this judgment."
Here your Lordship specifically does not make any
finding, but you were prepared to speculate as to the
possibility of extraordinarily serious misbehaviour on
the part of Post Office.
MR JUSTICE FRASER: Lord Grabiner, that is the claimants'
case, and you have skipped over the passage that says:
"On the other hand, his shortfall may, upon
investigation ..."
Et cetera, et cetera.
LORD GRABINER: Fine. When you say skipped over, I am just
trying to do this at speed, and I apologise.
MR JUSTICE FRASER: I understand.
LORD GRABINER: And I accept your Lordship's point, but I do
emphasise the point that the expression "extraordinarily
serious behaviour" is a strong expression. It is an
eye-catching expression. And in the context of this
debate, there was no warrant for it and, in my
submission, it is extremely prejudicial and certainly
wasn't necessary for the purposes of the Common Issues.
523, you say:
"For the reasons I have expressed above, I have
considerable misgivings about Post Office's motivation
for the treatment of Mrs Stockdale during this
litigation and for the treatment itself in terms of
refusal to provide obviously relevant documents. The
evidence of Mr Carpenter, far from satisfying these
concerns, actually increases them. The Post Office
appears, at least at times, to conduct itself as though
it is answerable only to itself."
And then missing a couple of lines:
"This would be a worrying position were it to be
adopted by any litigant. The Post Office is an
organisation responsible for providing a public service
which, in my judgment, makes it even worse."
In 724, in the closing sentence:
"It appears to wield that power with a degree of
impunity."
That, of course, is the Post Office.
And 1059, at the end of that paragraph:
"It would be perhaps too cynical for even the most
hardened Post Office watcher to suggest that the
problems with Horizon led to changes to and extension of
the contractual liability of SPMs for losses that were
adopted in the NTC. However, that option can't be
entirely discounted."
In my submission, this is an unnecessary and
speculative and offensive observation about Post Office,
and there was simply no justification for the
incorporation of that passage and it reveals a mindset
impacting upon the future cases.
MR JUSTICE FRASER: Lord Grabiner, that passage at 1059
arises in the following circumstances. The clause that
deals with liability for losses in the SPMC expressly
requires negligence, carelessness or fault on the part
of an SPM. The NTC clause that deals with liability for
losses does not have that limitation, and the
Post Office witness who explained the evolution of one
contract form to the other told me that the intention
was that there would be no difference in scope for
liability. In other words, the NTC, on his evidence,
was intended also to require fault, and the finding that
I made on the clauses themselves is that that plainly
wasn't the case on the actual words, and I rejected his
evidence.
In those circumstances, there was no explanation for
the change in extent of liability from the SPMC into the
NTC, and any comments I have made in 1059 have to be
read in the context of the fact that I had rejected
Mr Beal's evidence and what Mr Beal's evidence in fact
was.
But do I understand the submission to be effectively
that I should simply have made the findings on the
contractual effect of the two different contract forms
and not dealt with Mr Beal's evidence about them at all.
LORD GRABINER: Absolutely, because what you have actually
done is to lay the ground for a very strong attack on
the basis that the contract amendments were specially
designed in order to make life much tougher for
Subpostmasters in the future, and this would have been
obviously a matter for breach debate or for a more
general view about the conduct of Post Office in the
whole of this litigation.
MR JUSTICE FRASER: I understand.
LORD GRABINER: But to say it at that stage, in my
submission, is unnecessary and prejudicial.
MR JUSTICE FRASER: I understand.
LORD GRABINER: In paragraph 1111, your Lordship says:
"The Post Office describes itself as the nation's
most trusted brand."
You say:
"So far as these claimants and the subject matter of
this group litigation are concerned, this might be
thought to be wholly wishful thinking."
Then at the end of the paragraph:
"The Post Office asserts that its brand is trusted
by the nation. The SPMs who are claimants do not trust
it very far, based on their individual and collective
experience of Horizon."
Well, I mean, your Lordship can imagine what I would
be saying about that, but my submission is that the
passage speaks for itself.
Criticisms under a new rubric, criticisms of
Post Office's behaviour in this litigation,
paragraph 34. Your Lordship describes the evidence that
you received, and at the end of that paragraph,
your Lordship says:
"The Post Office seemed to adopt an extraordinarily
narrow approach to relevance, generally along the lines
that any evidence that is unfavourable to Post Office is
not relevant."
Obviously that is a serious criticism of the way
that the Post Office conducted the litigation.
Then paragraph 21, you begin with the words:
"Nothing in the judgment should be taken as my
expressing any concluded view on the functionality of
Horizon systems."
So your Lordship is obviously aware of the concern
that we are now focused upon. And I will not go through
the whole of that paragraph, but towards the end,
your Lordship says:
"However, Post Office seemed to want findings on
that only if they were in the Post Office's favour.
This is a peculiarly one-way approach by any litigant."
Then I think what I want to do is to show
your Lordship the closing submissions. Could you look
at transcript Day 14/36, lines 17 to 25, which are in
{B9.3/2/682}.
MR JUSTICE FRASER: I am afraid it has not come up yet.
LORD GRABINER: Day 14, page 36, lines 17 to 25. It is in
the bottom right-hand corner there. So it is line 17.
So the closing submission is:
"On credibility, we have a problem here."
Does your Lordship have it? Line 17, page 36, if
you are on the four on a page, right-hand corner.
MR JUSTICE FRASER: Yes, I do, sorry.
LORD GRABINER: "On credibility we have a problem here
because, of course, someone in my position would like to
rely on the answers of these individuals and how they
accounted, some of which, in my submission, was
dishonest or at least not credible. The trouble with
that submission is that would require your Lordship to
make findings as to that which, given the nature of this
trial, I am not in a position to do, because at least
there has not been full disclosure of the accounting
relationship."
Now, what I say about that is this. It may be
a good submission and it may be a bad submission, but my
learned friend Mr Cavender was certainly not submitting
that findings on credit should only be made if they were
in Post Office's favour, and, in my submission, the
conclusion that your Lordship has reached in the earlier
paragraph we are complaining about, namely 21, I think,
and 34, were not justified.
Then paragraph 28 you say:
"Another point with which I have to deal is what
Mr Cavender called or described in Opening as a
'challenge to the court'."
Then just at the end of that paragraph:
"The Post Office may have made these submissions
because, on an objective analysis, it fears objective
scrutiny of its behaviour, or it may have made them for
other reasons."
This, with respect, is a common theme in the
judgment. Your Lordship is speculating on all the bad
things Post Office might have done. Even though
your Lordship doesn't reach a concluded view, the
fair-minded observer would still be struck by the
one-sided and, in my submission, prejudicial speculation
contained in that observation.
Paragraph 30 at the end, when your Lordship is
summarising another approach adopted by the Post Office,
and you say at the end:
"This seemed to me to be an attempt to put the court
in terrorem."
And then at paragraph 123, your Lordship can look at
that for context, but the bit I am interested in is
towards the end of the paragraph, the last 15 lines or
so:
"The Post Office must have decided to attack him
[that, I think, is Mr Bates] ..."
MR JUSTICE FRASER: Where are we? I am sorry.
LORD GRABINER: Paragraph 123. I am sorry.
MR JUSTICE FRASER: Not at all, 123, yes.
LORD GRABINER: Just the last 15 lines or so:
"The Post Office must decided to attack him [I think
that is Mr Bates] because the whole case of the Post
Office requires an assumption or acceptance that the
predominant, or only, cause of shortfalls is fault (or
worse) on the part of SPMs. The case by the Post Office
is that careful and/or diligent and/or honest SPMs
and/or their assistants do not experience shortfalls.
Therefore, so far as the Post Office is concerned, in
each branch where such shortfalls occurred, either the
Claimants and/or their assistants must have at least
some, and potentially all, of those characteristics. If
it were otherwise, the Post Office edifice would run the
risk of collapse."
Again, this is an offensive conclusion and it does,
in my submission, or would in the minds of the observer,
reveal a mindset on the part of your Lordship.
Paragraph 295 --
MR JUSTICE FRASER: Before you move on, if you go back to
the end of paragraph 121, if you would.
LORD GRABINER: Yes, my Lord.
MR JUSTICE FRASER: I summarise in the last four lines the
submissions that the Post Office made to me about
Mr Bates and/or put to him in his cross-examination,
which I described as a sustained attack, and terms used
by the Post Office to describe his evidence included the
following words: risible, meaningless, nonsensical and
weak, and the Post Office's case also was that he had
convinced himself of the truth of his own account
because he had been campaigning against them for years.
So in terms of putting the findings at the end of --
I beg your pardon, not the findings, the criticisms at
the end of 121 in context, they have to be read with
123, don't they?
LORD GRABINER: That is fair enough, and I apologise. That
is perfectly fair, but my submission nevertheless is
that what is at the end of 123 does involve some
conclusions, and revealing your Lordship's thinking.
But the real point is that regardless of what the
evidence was or the cross-examination was, this has
nothing to do with the contract issues, but it has
everything to do with other matters yet to be tried.
Of course, the last sentence is particularly
revealing:
"If it were otherwise, the Post Office edifice would
run the risk of collapse."
So it looks like a fanciful construct. It does
reveal a view, in my submission.
MR JUSTICE FRASER: Understood.
LORD GRABINER: 295 {B7/29/100}, this is in relation to
Mrs Stockdale, and her interview. The last few lines:
"If that replacement took place after April 2016,
and if it is because of the replacement that this
recording is not available, then that means that
Post Office has failed properly to deal with an
important record directly relevant to the litigation
during the proceedings themselves."
So the implication from that is that Post Office has
failed to preserve evidence or may have destroyed
evidence, but it is all left up in the air and it is
a speculative observation.
In 393 {B7/29/129}, again, if your Lordship would be
kind enough just to look at that for context.
MR JUSTICE FRASER: 393.
LORD GRABINER: The passage that I am going to go is to 394,
a few lines down, after reference to Mrs Rimmer's team:
"It may well not have been drafted by Mrs Rimmer at
all, as some litigants' solicitors are often responsible
for the content of witness statements. This was not
pursued in cross-examination, so it is neither necessary
nor desirable to make any finding about it. I certainly
don't criticise Mrs Rimmer for it, although if it were
not written by her, it should not have been in her
statement."
So this is an implied allegation of professional
impropriety against Post Office's legal advisers. We
are all familiar with the context, but your Lordship is
speculating about something which is actually very
serious and it was entirely inappropriate, in my
submission, to incorporate that into the judgment.
Then in 532, you wholly:
"I wholly reject this evidence by Mr Trotter."
Then at the end of that paragraph, 532:
"This next point was not put to him. It appeared as
though his witness statement had been written by someone
else and not by Mr Trotter."
A similar point, 476, 10 or 12 lines down, reference
to Mr Abdulla:
"This part of her written evidence [this must be
Mrs Dar's evidence] sought to give the impression,
through careful wording of her witness statement, that
she had covered the same ground in the interview as
contained in these much later checklists."
Several lines down on, but towards the end of the
paragraph --
MR JUSTICE FRASER: I think it is Mrs Ridge's evidence.
LORD GRABINER: You may well be right and I apologise, yes,
that is right, and then just further on, towards the end
of the paragraph:
"This passage of her evidence appears to have been
written for her, but again the point was not put so
I make no findings about it."
This is another example of an implicit allegation of
what would be professional impropriety. Why speculate
about it? It is quite unnecessary but very, very
damaging to the view of the observer looking at this
bearing in mind the expectation of the future trials.
483 is the next paragraph. It is again for context.
If your Lordship could be kind enough to look at the
paragraph. But at the end of the paragraph:
"Given by early 2017 this litigation was well under
way it may be an example of internal suppression of
material, but I make no specific findings on that as the
point wasn't raised. I can think of no rational
explanation for this however."
This is, in my submission, wholly inappropriate, not
least the conclusion that apart from the suggested
impropriety your Lordship could think of no other
rational explanation for Post Office's behaviour. That
is a conclusory statement and it is an incredibly
damaging statement. And it is a highly prejudicial
statement.
MR JUSTICE FRASER: This was a Post Office auditor asking
for internal documents from the Post Office.
LORD GRABINER: It doesn't matter, my Lord, because these
were matters which everybody knows were going to be
subsequently dealt with.
Paragraph 560, in subparagraph 5, even the identity
of both the sender and the recipients of internal emails
have been redacted from disclosed correspondence.
MR JUSTICE FRASER: Where are we now?
LORD GRABINER: Sorry, it is paragraph 560, subparagraph 5.
Your Lordship may recall this. This is where the
disclosed correspondence was redacted.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Then in later submissions on typographical
corrections:
"... maintain this was done for data protection
reasons. The contents of the emails heavily redacted
... the court will not go behind an assertion of
privilege."
Your Lordship says:
"However, given that part of the emails are accepted
as not being privileged and have not been redacted
I can't see any sensible basis for maintaining any
redaction of the identity of the sender and recipients."
That is a serious criticism of the disclosure
process adopted by Post Office. It proceeds actually on
a false basis. Post Office did not redact those
documents for the purposes of these proceedings. They
had been disclosed in these proceedings in exactly the
same form that they were in when originally provided to
Mr Bates. The original versions had been redacted for
data protection reasons.
MR JUSTICE FRASER: But the contents were redacted as well
as the senders and the recipients.
So, Lord Grabiner, if you look at line 5 of 560,
subparagraph 5 {B7/29/175}, the contents of the emails
were themselves heavily redacted. So if the sender and
the recipient's identity were redacted at the time for
data protection I entirely accepted the correction
Mr Cavender I think submitted.
LORD GRABINER: I understand your Lordship's point.
If we may, we may come back to you.
MR JUSTICE FRASER: Yes, of course.
LORD GRABINER: All the redactions I am told were related to
third party data. All the redactions.
MR JUSTICE FRASER: Does that, therefore, mean that the
redactions within the contents of the emails need to be
reviewed again?
LORD GRABINER: No. Those redactions within the content are
there because they reflected data protection redactions
in the originals.
My understanding is that that was explained to
your Lordship during the trial. But I am not going to
invite him to deal with it now, but it may be that
Mr Cavender can deal with it.
MR JUSTICE FRASER: No. Of course.
LORD GRABINER: Then in 561 your Lordship says:
"These are examples in my judgment of a culture of
excessive secrecy at the Post Office about the whole
subject matter of this litigation. They are directly
contrary to how the Post Office should be conducting
itself. I do not consider that there can be a sensible
or rational explanation for any of them."
The criticism I would make speaks for itself.
Then turning to another heading: "Criticism of
Post Office witnesses". 375:
"Mr Beal's way of giving evidence was very much the
house Post Office style, certainly for the more senior
of its management personnel who gave evidence. This was
to glide away from pertinent questions or questions to
which the witness realised a frank answer would not be
helpful to Post Office's cause."
Then just below that:
"He sought to give me evidence highly favourable to
Post Office which I consider was slanted more towards
public relations consumption rather than factual
accuracy."
Then in 400, the sentence:
"That is simply not correct. I do not accept that
Mr Breeden could believe it was."
In 425 in relation to Mrs Van Den Bogerd your
Lordship said:
"This, therefore, must mean that Mrs Van Den Bogerd
is an extremely poor judge of relevance."
In 544:
"I have no reason to think that any of Post Office
witnesses were doing anything other than stating their
genuine belief as at 2018 based on their recollection,
with two exceptions. The first is some of Mr Beal's
more extreme claims that the drafting of the NTC was
designed to replicate a SPM's responsibility for losses
under the SPMC. It was also intended by Post Office
that the contract with NFSP would be made public.
Neither of those claims bear analysis when compared with
the detailed drafting of each of those documents, both
of which have been carefully drafted, no doubt with the
assistance of sophisticated legal advisers.
"The second is Mrs Van Den Bogerd. She tried to
give the impression that the detailed cross-examination
about Mr Abdulla was something she couldn't really deal
with because she had no detailed knowledge in the
witness-box. That is simply not correct. She had
signed a very detailed witness statement just a few days
before for the Horizon Issues trial which dealt with the
matters being put to her about Mr Abdulla in
considerable detail. I find that she was simply trying
to mislead me."
Further on your Lordship described an answer from
her was "simply disingenuous". Then further on in the
emboldened part:
"Mrs Van Den Bogerd did not provide any reference in
his witness statement to matters unfavourable to the
Post Office case."
So two things are especially striking, in my
submission, about these extracts.
First your Lordship makes a very general statement
about Post Office's house-style of giving evidence.
That shows that from now on you are likely to disbelieve
Post Office's evidence because it comes from
Post Office. In my submission that is how it would be
viewed by an objective observer.
Secondly, those criticisms of Post Office witnesses
are founded on what they said or did not say about
evidence which was irrelevant. Ie irrelevant for that
trial.
Mr Beal is criticised for his understanding of how
the liability provisions in the NTC should be construed.
But his subjective understanding is quite irrelevant to
their proper interpretation or construction. That is
always a matter for the court.
He is also criticised for his evidence on the NFSP.
This too was irrelevant. Mrs Van Den Bogerd was
criticised for not giving evidence on Horizon. Her
evidence on Horizon belongs properly to the Horizon
trial.
So we say that your Lordship's conclusions as to the
credibility of these witnesses are unfair, not least
because the evidence they were giving was supposed to be
confined to the Common Issues, which is what their
witness statements were directed to.
The other point about these conclusions is that they
will inevitably colour your Lordship's view of these
witnesses as and when they come before you in one or
other of the later trials.
Then I think with a bit of luck I will get done by
the short adjournment, my Lord.
The next topic heading is "Attacks on the NFSP and
Post Office's relationship with NFSP".
So there were attacks on Post Office's relationship
with the National Federation of Subpostmasters. It was
not represented in court and had no opportunity to
comment on your Lordship's judgment.
So in 368 you say:
"It is obvious, in my judgment, that the NFSP is not
remotely independent of Post Office, nor does it appear
to put its members' interests above its own separate
commercial interests."
In 369 just for context, 370, the second sentence:
"Such matters plainly should not be linked in the
way that NFSP and the Post Office link them in this
instance. I don't consider that NFSP can, in these
circumstances, properly be considered to be independent
or to be acting in the interests of SPMs, given the way
it involved its own commercial interests as a condition
in the way explained in Part F of the judgment."
Then if your Lordship would just be kind enough to
look for context at 576 and 577, and then I want just to
pick up on a emboldened passage at the end of 577. This
is in relation to Paula Vennells, the chief executive of
the Post Office. Then at the end of 577 your Lordship
says:
"Rather curiously, therefore, the email above
demonstrates that the NFSP was only prepared to agree
what amounted to an increase in its members' potential
compensation if its own future was assured by the
payment of substantial sums to it. I find that this
shows that the NFSP put its own members' interests well
below its own. I also find that NFSP is not fully
independent."
So your Lordship has there embarked on a lengthy
discussion of the circumstances in which Post Office
disclosed a copy of its grant agreement with NFSP in
response to a freedom of information request.
Your Lordship was especially interested in the fact
that NFSP's website had been altered in the course of
the trial. You will probably remember that. This is in
your Lordship's 589. Then towards the end of 589
your Lordship said:
"I was given no evidence by anyone from Post Office
about why this was done and done in terms that suited
the Post Office's case on this point. I find this
behaviour highly suspicious. It also undermines yet
further the claim by Post Office that NFSP is
independent."
So here your Lordship seems to be adopting the
conspiracy theory approach to the evidence. That would
be matter of grave concern to the fair-minded observer
aware of the context. And, of course, a party to that
conspiracy apparently was the Post Office, but there was
no detailed evidence on any of this because it simply
wasn't relevant to the Common Issues trial.
Then earlier in these submissions and from time to
time by reference to various paragraphs of the judgment
I drew attention to observations of your Lordship to the
effect that you were specifically going out of your way
to make it clear that you were not making any findings
on Horizon or breach.
So if we can go back now to paragraph 517, which
I think is the classic example in the judgment,
your Lordship will be familiar with this paragraph and
I will not re-read it, but 517. It is the "crystal
clarity" paragraph.
MR JUSTICE FRASER: Just give me a moment.
LORD GRABINER: 517.
MR JUSTICE FRASER: Yes, thank you. Yes.
LORD GRABINER: Your Lordship will obviously recall what you
said there.
That form of words, in my respectful submission,
would appear to the fair-minded observer to be aimed at
pre-empting the substantive criticisms that I have been
making throughout. It is just a mantra which would not
convince the observer that your Lordship had not
prejudged the issues which still fall to be tried by
your Lordship.
Unsurprisingly there is some learning on this
subject. The authority is the case of Steadman-Byrne.
Could I invite your Lordship's attention to it.
MR JUSTICE FRASER: Yes. Is this the one where the parties
were called in over the short adjournment, having heard
the claimant's evidence, and the district judge said he
believed them and he made various other comments. There
are about maybe 16 comments in the judgment of
Lord Justice Sedley that set out exactly what he said,
I think.
LORD GRABINER: Yes, there was a dispute about what was said
but Lord Justice Sedley thought that that was
irrelevant. It is {B9.5/14/1} I think it should be.
MR JUSTICE FRASER: Is it tab 14?
LORD GRABINER: It is genuinely 14, yes.
MR JUSTICE FRASER: That is the practice note. I have
actually been looking at it in the judgment itself. But
the judgment is in the practice note so ...
LORD GRABINER: Yes, it is. Yes, it is, you are quite
right.
MR JUSTICE FRASER: So I think paragraph 4 sets out what the
district judge said to them over lunch.
LORD GRABINER: There was a dispute about what was said but
Lord Justice Sedley didn't think that was terribly
important.
If we go to paragraph 5:
"The defendant's case is that the judge, by saying
what he said, went well beyond giving counsel an initial
indication of his thinking and expressed firm views
adverse to a defendant whose evidence he had not yet
heard. When, therefore, in his judgment the next day he
found against the defendant, a reasonable observer,
knowing what we have recounted, would infer that he
might well have done so because of a prior prejudice in
favour of the claimants and against the defendant."
I cite that merely to make it clear beyond argument
that it was a case of apparent bias and not actual bias,
because the learned Lord Justice is using the formula
applicable to the apparent bias cases. Then at
paragraph 12 Lord Justice Sedley says:
"The claimants rely strongly on the remark recorded
by their counsel but not recalled by the defendant's
counsel; namely that the judge wanted to give both
counsel an indication of his thoughts. We are entirely
content to accept that whether the district judge said
it or not it is what he was seeking to do. The question
remains whether the thoughts he communicated were
nevertheless such as to suggest to a reasonable observer
that his mind was all but closed against the defendant."
Then in paragraph 16 the learned Lord Justice says:
"Both the common law and the convention for the
protection of human rights and the fundamental freedoms
recognise the fundamentality of every litigant's right
to a Tribunal free both of bias and of the objective
appearance of bias. The appearance of bias includes
a clear indication of a prematurely closed mind. In our
respectful view the district judge, albeit acting out of
the best of motives, gave the parties an inescapable
impression that he had formed a view not only favourable
to the claimants, but that the defendants were not going
to be believed if he contradicted them."
Now the reasonable observer would certainly not be
convinced by the formulation of words which are belied
by the substance of the judgment, because in every case
you can't just point to the words. What will matter is
the impression gained by the observer of the substance
of the language used by the judge in the case; in this
case your Lordship.
What Amjad shows, in my submission, is that the
court will and can look through the mantra and be
prepared rigorously to test the reality.
The real question is whether in the eyes of the
reasonable observer that is a real possibility that
your Lordship has prejudged matters which are still due
to be tried by you. That is the key question.
As your Lordship knows, I am sure, from the Locabail
case -- that is the only other case that I want to make
reference to --that the benefit of any real doubt should
be resolved in favour of recusal.
Perhaps we can just look at that. This is
Lord Justice Bingham's judgment {B9.5/7/480} at the foot
of the page between G and H.
Lord Justice Bingham says, do you see that, between
G and H:
"In most cases we think the answer, one way or the
other, will be obvious, but if in any case there is real
ground for doubt that doubt should be resolved in favour
of recusal."
Your Lordship's use of what I have called, I hope
not disrespectfully, the mantra, demonstrates your
understanding that you should not have made findings for
example about Horizon or breaches of contract or
breaches of duty.
Our case is that your Lordship nevertheless went
ahead and made those findings. Many of your conclusions
and observations are strongly expressed.
So in a nutshell my submission is that in the eyes
of the fair-minded observer this is a very plain case
where there is a risk of an appearance of bias infecting
the current Horizon trial and the future trials between
these parties.
For that reason I respectfully invite your Lordship
to recuse yourself from these proceedings and also
either to stay or adjourn the Horizon trial.
My Lord, those are my submissions. I am sorry they
were undertaken at great speed, but they are my
submissions.
If there is anything you would like to ask me about
I am very happy to try and help you.
MR JUSTICE FRASER: I just had a couple of questions.
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: So far as relief on the application,
I think the application itself said adjourn the Horizon
trial, which obviously is underway at the moment, and
today you have said adjourn or stay.
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: Can I just be clear what in fact is
meant by either or each of those terms.
The evidence of fact is almost finished. If I were
to recuse myself from being the managing judge of the
group litigation that would obviously include recusing
myself from any further involvement in the Horizon
Issues trial.
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: That would then have to start again in
front of another judge. Is that correct?
LORD GRABINER: Yes, is the answer. How long has this trial
been going on for?
MR JUSTICE FRASER: Two weeks.
LORD GRABINER: Would your Lordship bear with me for
a moment.
MR JUSTICE FRASER: Yes. (Pause)
LORD GRABINER: Yes, I think that would be the consequence.
Yes.
MR JUSTICE FRASER: It is really abandon or stop the Horizon
trial.
LORD GRABINER: Yes.
MR JUSTICE FRASER: So it can be reheard from scratch.
LORD GRABINER: Precisely.
MR JUSTICE FRASER: Yes. Right, thank you very much. That
is the first question.
The second question is slightly mundane in terms of
the observations and submissions that you have made
already in respect of Mr Beal, but just to ask
a specific question about Mr Beal with particularity.
At page 94 of today's transcript when you were
taking me through the passages in respect of my
observations on the relationship with the NFSP you said
that I had criticised Mr Beal for giving irrelevant
evidence, or I had criticised him in respect of
irrelevant evidence. Do you recall those submissions?
LORD GRABINER: Let me just look at my --
MR JUSTICE FRASER: 544 is the paragraph of the judgment
where I deal with an observation on Mr Beal and an
observation on Mrs Van Den Bogerd.
LORD GRABINER: What I said was Mr Beal is criticised for
his understanding of how the liability provisions in the
NTC should be construed.
MR JUSTICE FRASER: Yes, that is correct, you did say that.
If we can just call up on the common screen for the
Common Issues trial, please, {C2/2/6}.
That is Mr Beal's witness statement where he gives
evidence about a point which you and I have already
debated a little bit, which was the difference in fault
or no fault liability under each of the two contract
forms.
Now on the basis that he had given that evidence in
his witness statement I assume the Post Office's
position is that that was relevant evidence and Mr Green
could cross-examine on it. But if I have misunderstood
that would you tell me.
LORD GRABINER: My response to that is first of all it
obviously was in the witness statement but it was
irrelevant to the matters in the trial.
MR JUSTICE FRASER: Understood.
LORD GRABINER: And whatever came out of the
cross-examination was similarly irrelevant.
MR JUSTICE FRASER: Yes.
LORD GRABINER: It goes back to a point that I sought to
make at the beginning of these submissions, which is the
fact that irrelevant material was incorporated into any
of the witness statements and/or was cross-examined is
supremely irrelevant because it doesn't thereby enlarge
the Common Issues that were the subject of the trial.
MR JUSTICE FRASER: I understand. That is very helpful,
thank you.
Then the final point -- and it may be that you are
not able to give me an answer immediately, in which case
you can just give me the brief answer at the beginning
of your reply -- am I entitled or not, would
a fair-minded hypothetical observer take account of the
result in the Common Issues judgment in terms of how
many issues were resolved in the Post Office's favour
and how many were resolved in the claimants' favour or
not?
LORD GRABINER: Absolutely not.
MR JUSTICE FRASER: Wouldn't take note. Thank you very
much. That is very helpful.
LORD GRABINER: Absolutely not. It would be irrelevant.
The only matters that are relevant is whether it can
fairly be said that there are passages in the judgment
which give rise to the concern I have been describing.
MR JUSTICE FRASER: Thank you very much.
LORD GRABINER: The fact that at the end of the day the
weight of the findings was in favour of one side or the
other would, in my submission, be irrelevant.
MR JUSTICE FRASER: Thank you very much indeed. That is
almost perfectly timed on your part, if I may say so,
and we will come back at 5 past 2 and I will hear from
Mr Green.
(1.00 pm
(The short adjournment)
(2.05 pm)
Submissions by MR GREEN
MR JUSTICE FRASER: Mr Green.
MR GREEN: May it please your Lordship. The claimants'
submission is that this is an application without merit
and without foundation. There are effectively three
strands to that submission.
The first is that it wholly ignores the proper role
of context. The second is that it appears to proceed on
a misapprehension as to the correct approach to
analysing apparent bias. The third is that it proceeds
specifically on a misapprehension as to the proper
judicial assessment of the proceedings as they actually
were before your Lordship during the Common Issues
trial.
There is a preliminary point to make about the
informed observer test. The informed observer is
someone who is presumed to actually have been at the
trial and know what happened, not commenting on it from
afar and not island-hopping between different findings
and observations to make assertions about those without
having regard to the judgment as a whole.
Taking the points in stages --
MR JUSTICE FRASER: Is that right, though? Is it not
sufficient for the reasonable well-informed observer
just to read judgment number 3?
MR GREEN: My Lord, no, the law is clear that the
reasonably -- well, the informed observer test is (a) an
objective one and (b) an informed one. So the informed
observer knows about the trial as it was presented to
your Lordship.
In one case, there is even a point about knowing
things that perhaps even weren't in the public domain
about the trial. So "informed" I would underline in
relation to the approach of the informed observer test.
A couple of short points in relation to context, and
those points are these, and I think your Lordship will
have apprehended what these submissions would be anyway.
The first point is that specific findings or
observations in a judgment should not be taken out of
their immediate context. That is, either lines which
are within the same paragraph but have been omitted from
mention, which either directly contraindicate what is
being said of the other lines that are mentioned or put
those lines into a context which is explanatory, or
adjacent paragraphs which give the overall context
within which the particular paragraph falls. I refer to
that as the immediate context.
The second point of context is that those passages
should not be considered without regard to the judgment
as a whole and read as a whole, including
your Lordship's findings in favour of some of
Post Office's witnesses, for example, and having due
regard to the presence or absence of a careful and
meticulous approach to analysing with precision what
evidence was and was not given, how it was challenged
and what submissions were made about it.
The third matter of context is to look at the
proceedings themselves and the issues that your Lordship
had directed to be tried and how the parties had in fact
presented their cases before the court.
The fourth matter of background, but important
context, is the fact that this is group litigation where
frequently the managing judges are put in a position
where parts of trials have to be separated off, as
sensibly as they can be, never perfectly hermetically
sealed from other aspects, and tried and tried fairly
and sensibly.
That is the quintessential role of the managing
judge for which part 19 of the Civil Procedure Rules
makes provision.
I will take your Lordship, if it is necessary, to
the British Coal case, which we have in the bundle,
which addresses the generosity of approach to a managing
judge in those circumstances.
Your Lordship is very familiar with the passages
that have been identified in Mr Parsons' 15th witness
statement and the words that precede and follow them and
their context, because it is in your Lordship's
judgment, so I am not going to spend the time that I do
have taking your Lordship through them paragraph by
paragraph, not least because I hope we have given
sufficiently illustrative examples of our answers in our
written skeleton argument.
But it is important to address some of the points
which arise in relation to the Common Issues themselves,
and how they in fact arose before your Lordship. So the
first point to note is that the Common Issues were not
plucked out of the air.
The Common Issues were agreed between the parties
and they were derived from the parties' generic
pleadings, which is an important point, and the key
paragraphs to which they referred, although inevitably
not all paragraphs, were identified in the schedule to
the order which defined the Common Issues themselves.
Your Lordship will know that, for example, some of
the more famous paragraphs in the generic defence, like
93 and 94 about the approach to construction and where
the burden of proof should lie, were identified in that
Common Issues document.
And what then followed was the service of evidence
by Post Office for their part, which was designed to
support the factual premises which they had pleaded as
being expressly relevant to construction of the
contracts. I will very briefly make these points good
in a moment.
What then followed was Post Office's attempt to
strike out the only evidence that the lead claimants
individually could give in response to whether or not
the factual assertions designed to support Post Office's
pleaded case on construction were in fact a reliable and
realistic account of what would happen on the ground or
not.
That was unsuccessful for a number of reasons which
your Lordship will remember in the admissibility
judgment, which is judgment number 2, which I will also
come to very briefly in a moment.
From there, Post Office then elected not to put in
any more evidence, not to abandon the evidence that it
had chosen to put in on matters such as training and so
forth, but in its opening and closing to continue with
the premise for construction upon which Post Office's
entire case on the Common Issues depended.
There were two particularly important facets to
that. The first facet was what had been pleaded at
paragraphs 76, 85, 93 and 94 of the generic defence, and
those factual assertions which I will take your Lordship
to in a moment. That is one side of it.
The other facet of the Post Office's case was the
agency relationship, because Post Office expressly
opened and closed on the footing that the agency
relationship suffused the entire contractual
relationship, and the contractual relationship sat atop
of the agency relationship and any findings as to the
nature of the agency relationship and the role of the
account as between principal and agent necessarily
involved the court determining what the branch trading
statement was, in fact, because that was disputed, as
your Lordship records in the judgment, and how it came
about and what it included.
That was necessary, and I don't think that can
sensibly be disputed.
So those were the two key facets in relation to
construction. The third area was credit. That loomed
very, very large in the proceedings as they were
actually conducted before the court.
My Lord, can I just take your Lordship very briefly
to the generic pleadings, which I think your Lordship
will remember. Rather than going through them in
detail, your Lordship will remember --
MR JUSTICE FRASER: I don't think on an application such as
this, given its subject matter, it is necessary to go
through the pleadings in detail.
MR GREEN: I am grateful.
MR JUSTICE FRASER: But if you are going to draw my
attention to what a part of a pleading says -- because
I remember the Common Issues' schedule or schedule 1 to
the order that set down the Common Issues was drafted
and agreed by the parties, but it was approved by the
court.
MR GREEN: Exactly.
MR JUSTICE FRASER: And within it, it had numerous
references to pleading paragraphs, a point which, during
the trial, I required both parties to get rid of those
so that it was a standalone document.
MR GREEN: Indeed.
MR JUSTICE FRASER: Where do you want me to go?
MR GREEN: Maybe the most convenient place to look, my Lord,
is in judgment number 2, in the admissibility judgment,
which I think your Lordship may have in a separate hard
copy folder. {B7/27/1} on Opus.
If we look at paragraph 40 {B7/27/14} of that, this
is your Lordship's judgment on the admissibility
application, and so this highlighted the relevance of
these paragraphs, if it was ever in doubt, which I will
submit it wasn't to Post Office:
"This paragraph is pleaded to by the defendant in
paragraphs 93 and 94 of the generic defence. These
state as quoted below."
Another relevant passages precedes these in
paragraph 76. 76 sets out some subparagraphs and in
particular, if we look at (4) onwards:
"Post Office was unable to monitor at first hand the
transactions undertaken in branches on ..."
MR JUSTICE FRASER: Pause for a moment. I think we need to
go on to page 15.
MR GREEN: It is on the next page, if we can. {B7/27/15}
MR JUSTICE FRASER: Yes.
MR GREEN: There we go:
"Post Office was unable to monitor at first hand the
transactions undertaken in branches on its behalf, in
relation to which it was liable to Post Office clients.
These transactions and the manner in which they were
carried out were the responsibility of the relevant
Subpostmasters."
Then the same point about custody of property, and
then (6):
"Post Office relies on the accurate reporting by
Subpostmasters of accounts, transactions and the cash
and stock held at the branch."
And then at 93, paragraph 93, which is just below:
"Post Office notes the claimants' case set out in
paragraph 55 applies only to section 12, clause 12
[which is the burden of proof point]. More generally,
as regards shortfalls disclosed in a Subpostmaster's
accounts, the Post Office notes the following
principles, each of which applies to Subpostmasters."
And then the subparagraph (1):
"Where a Subpostmaster asserts that he or she is not
responsible or liable for a shortfall, the legal and/or
evidential burden of proof is on him or her to establish
the factual basis for such assertion in that:
"(a) In the absence of evidence from a Subpostmaster
to suggest that a shortfall arose from losses for which
he or she was responsible, it is appropriate to infer
and/or presume that the shortfall arose from losses for
which he or she was responsible. Such an inference
and/or presumption is appropriate because (1) branches
are under the management of Subpostmasters or their
assistants, (2) losses do not arise in the ordinary
course of things without fault or error on the part of
Subpostmasters or their Assistants and (3) it would not
be right to infer or presume that a shortfall or loss
was caused instead by a bug or error in Horizon."
Then it goes on:
"Subpostmasters bear the legal burden of proof that
a shortfall did not result from the losses for which
they were responsible. This is because (1) the truth of
the matter lies peculiarly within the knowledge of
Subpostmasters as the persons with responsibility for
branch operations and the conduct of transactions in
branches, (2) it would be unjust for Post Office to be
required to prove allegations relating to matters that
fall peculiarly within the knowledge of Subpostmasters,
and/or (3) where a person is subject to fiduciary
obligations as regards his or her dealing with assets
the burden is on that person ..."
And so forth.
So if your Lordship looks at the foot of that page,
94 as to section 12, clause 12 of the SPMC:
"That should construed in accordance with the
principles set out in paragraph 93 above."
So that is all from the generic defence, not recited
there, but from paragraph 85 of the generic defence,
which is -- page 39 of the generic defence is:
"The written Subpostmasters' contracts are to be
construed as a whole and in light of the relevant
factual matrix pleaded in paragraph 76 above."
Which is the paragraph to which I have already
referred the court.
So the starting point was that your Lordship had
regard to the positive case being advanced by the
Post Office when considering the relevance of the
evidence that was sought to be struck out by the
Post Office.
That is essential context, and I note my noble and
my learned friend Lord Grabiner did not actually I refer
to the basis upon which the Post Office itself invited
this court to construe the contracts at all in his
submissions.
We respectfully say that is an impermissible
omission because it seeks to advance a criticism of the
judgment which is unfounded when you go back to look at
the case that your Lordship was considering as advanced
by Post Office and the case in support of which the
relevant evidence was adduced by Post Office through its
witness statements.
Now, the evidence of Mrs Van Den Bogerd was
considered in some detail and your Lordship made
findings in relation to her evidence. And the reading
note which Post Office submitted to the court explaining
the relevance of different aspects of their evidence --
MR JUSTICE FRASER: Bear with me one moment, Mr Green, just
one moment. (Pause)
Yes, sorry. I mislaid a file. Reading note.
MR GREEN: The reading note is at {C2/0/1} on Opus.
MR JUSTICE FRASER: I think I mentioned the reading note in
the judgment.
MR GREEN: Indeed.
MR JUSTICE FRASER: Do you have a reference for where I did
that?
MR GREEN: I don't, my Lord, but I can find one. And the
reading note identified, if we go over the page
{C2/0/2}, there is Mrs Van Den Bogerd's evidence.
MR JUSTICE FRASER: Paragraph 365, I described it as
a helpful reading note, I think.
MR GREEN: Indeed, and your Lordship will see at page 2 of
that reading note under "Subpostmasters and their
branches" there are, for example, Horizon, training and
support, causes of shortfalls, see also Helen Dickinson,
Post Office's reliance on Subpostmasters and
responsibility for shortfalls.
MR JUSTICE FRASER: Yes.
MR GREEN: Then Helen Dickinson we can see at the bottom
gives evidence about fraud in branches and concealing
shortfalls and so forth.
What is striking in Mrs Van Den Bogerd's statement
was the extent to which she covered matters which did in
fact or purport to support the case that Post Office --
Post Office's pleaded case in those pleaded paragraphs
to which I have just referred. If we look at {C2/1/1}
--
MR JUSTICE FRASER: That is her witness statement.
MR GREEN: That is her witness statement. And at the foot
of that, there is an index, but just above that, she
says:
"I also provide some commentary on what the
real-world effects of the Claimants' alleged
interpretation of the Subpostmasters contracts."
I think it should say "are" or "would be" and
I think that is suggesting relevance because it may
assist the court to test the commercial sense of
different constructions contended for.
But it is clearly, as we can see in a moment,
designed to show that the Subpostmasters' contention,
the claimants' contention, was unworkable. I am not
going to take your Lordship through the statement.
MR JUSTICE FRASER: I don't think, on the basis of how
Lord Grabiner puts the application, you need to or ought
to, because it is put fairly squarely on the contents of
judgment number 3.
MR GREEN: My Lord, indeed. The only problem is that I was
going to briefly identify a couple of points, if I may,
and then explain why I say it is relevant to how the
application is put.
Just by way of a couple of points, page 23 of that
document at paragraph 78 {C2/1/23}, does your Lordship
have the bottom three lines from the middle:
"This means that the Subpostmaster has complete
control over the branch accounts and transactions only
enter the branch accounts with the Subpostmaster's (or
his assistant's) knowledge."
And that rather teases out the point that
your Lordship asked my learned friend about in relation
to transaction corrections entering the accounts and how
the branch trading statement would come about.
On page 37 at page 135 at the end of that paragraph
{C2/1/37}, it says:
"It would be unlikely that a Subpostmaster, having
kept his accounts diligently, still had no idea where
a material problem was arising from."
MR JUSTICE FRASER: Where have you just read from?
MR GREEN: It is the foot of paragraph 135.
MR JUSTICE FRASER: Yes.
MR GREEN: These are just examples, my Lord, but page 39,
paragraph 145 {C2/1/39}, says:
"In any event, for the reasons set out above, the
Subpostmaster is best placed to investigate shortfalls
and Post Office generally cannot find the root cause of
a shortfall without the Subpostmaster's cooperation.
A reversal of the burden for determining the root cause
of shortfalls would also create the perverse situation
whereby the greater the scale and sophistication of the
false accounting by a Subpostmaster, the less likely
Post Office will be able to find the root cause of
a shortfall."
Et cetera. And that refers back up to evidence or
argument about the fact in branch, for example 142, no
transaction enters their accounts without their consent.
This includes transaction corrections, which must be
accepted by the Subpostmasters before they form part of
the branch accounts, and causation in 143.
Now, it is right -- I am sorry to just to have
pressed on to that, because I wanted to show
your Lordship why I say those passages are relevant, and
they are relevant because the correct approach on an
application such as this is to consider and the informed
observer is taken to know what the issues were and how
they were presented before the court.
And it was their positive case pleaded case, which
they repeatedly refused to abandon, notwithstanding
being instructed do it at least two CMCs, as we have
explained in our skeleton argument.
MR JUSTICE FRASER: Not invited to abandon by me.
MR GREEN: No, by the claimants.
MR JUSTICE FRASER: But the fact that they were invited to
abandon it by the other side is neither here nor there.
It was their pleaded case.
MR GREEN: It was their pleaded case. It might sharpen any
argument on election, having elected to persist with it,
but I take your Lordship's point. It was their pleaded
case, and all this evidence, which is the flip-side of
many of the findings that my learned friend
Lord Grabiner has been referring to, were positively
asserted by Post Office. So they were positively in
issue as to whether or not Post Office was entitled to
take succour from Mrs Van Den Bogerd's evidence in
support of its pleaded case before the court.
So we say it is extremely surprising that neither
the application nor the submissions that your Lordship
has heard this morning face up to and deal with head-on
the fact that Post Office positively advanced in its
pleadings and directly in its evidence the case I have
just identified. That is a matter of context which it
would be completely wrong to leave out of account.
Against that background, my learned friend suggested
there was a bit of a quandary after judgment number 2
about how to play the cross-examination.
We respectfully say that is not right, partly
because of the case positively being advanced and still
being advanced at that stage. Secondly, because the
admissibility application had itself spelt out -- the
judgment on the admissibility application had itself
spelt out why it was that these matters might be
relevant to the matters pleaded by Post Office.
So Post Office was not trying to get what
your Lordship's view could be; but had at the very
lowest a careful steer about its potential relevance in
the admissibility judgment number 2.
My Lord, there is an irony in the reliance that is
placed by the Post Office on the transcripts of the
hearings that run up to the admissibility application,
because the premise of this application is that
your Lordship, having expressed a robust view, will be
regarded by the informed observer as not amenable to
persuasion.
Your Lordship will remember the warnings that you
gave me about putting in irrelevant evidence and, if
necessary, sitting there and crossing them out line by
line, because they have included them in their
application. And those indications were robust and they
were repeated at a number of hearings before
your Lordship had heard full argument on the detail of
what that evidence might be relevant to.
That is all just part of normal adult behaviour in
court. What then happens is that there is an
admissibility hearing and it goes the other way.
So in Mr Parsons' 14th witness statement, he is
actually relying on a sequence of interlocutory events
that positively demonstrate that notwithstanding having
expressed extremely robust views at a number of
interlocutory hearings, your Lordship was amenable and
dealt with the admissibility application with an open
mind. The irony of that is not actually acknowledged
anywhere either in the application or in my learned
friend's submissions.
Now, it is right too to identify that, as
your Lordship will have seen from the conclusion to our
skeleton argument at page 51, which is at {B9.4/2/51} --
MR JUSTICE FRASER: Did you say your page 51 of your
skeleton?
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: That is your final paragraph, is that
right?
MR GREEN: That is the final paragraph before the annex.
MR JUSTICE FRASER: Yes.
MR GREEN: This just one example, but quite a striking one:
"The Post Office's invocation to the Court in both
Opening and Closing Submissions to construe the contract
on the basis of its evidence, by way of particular
example, that of Mrs Van Den Bogerd:
"Issues 8 and 9 concern the proper approach to
responsibility for losses. They should be considered
against the factual background of how accounting works
in a Post Office branch as described by
Angela Van Den Bogerd at paragraphs 73 to 82 and 126 to
140 ..."
Now, pausing there, there is an element of
Groundhog Day here, my Lord, because what actually seems
to be the position is that when Post Office sought to
strike out the claimants' evidence, they wanted
a one-sided trial where they could tell your Lordship
what the factual background was in support of their
pleaded case, and we couldn't adduce any evidence to
contradict it. And your Lordship didn't accept that was
the appropriate way to conduct the trial on those
factual issues.
Then what happens is at the trial in opening and
closing, they are still saying to the court that that is
the right approach. So when your Lordship makes
findings on those matters or matters on which they may
depend -- so the suggestion, for example -- I will give
a concrete example of this. The suggestion that
Subpostmasters are best placed to find the root cause of
shortfalls, you cannot sensibly identify that and test
that proposition, which is, after all, the Post Office's
own case. Without saying, well, was there any training
on that, it is absolutely impossible.
And that is why Mrs Van Den Bogerd sought to put in
evidence about training in her witness statement. It
was the underpinning, the base layer, beneath which the
proposition that for various reasons, including the
training which told them how to do it, they would be
well placed or peculiarly well placed to find the cause
of shortfalls.
Not only is there the definition of the
Common Issues by reference to the pleadings, there is
also the highlighting of the significance of those
issues and the relevant evidence that goes to them in
the admissibility judgment. Then there is the opening
and the closing which invites the court to determine
these issues in the light of evidence actually given by
Post Office and then there is the middle of that
sandwich of opening and closing, we have got how
cross-examination was actually conducted.
I hesitate to say so, but my learned friend
Mr Cavender did actually go first in cross-examining.
So the idea that, as I think is suggested, at the very
least tentatively if not more firmly, that somehow the
scope of cross-examination was all my fault because of
how I cross-examined or others with me is a little bit
surprising, because actually, what happened is there was
widespread cross-examination by Post Office of the lead
claimants on a wide-ranging series of matters. There
are some particular categories which are important. One
key category is on pre-contract dealings.
The reason it is a key category is because it is one
which no one can sensibly dispute was in issue. And
there were very, very firm challenges made, as
your Lordship knows, in relation to the credit and
credibility of the lead claimants in relation to those
matters.
MR JUSTICE FRASER: All the lead claimants had their credit
challenged and there were factual issues in relation to
contract formation of all six of them.
MR GREEN: Exactly. So credit was bound to be -- was
necessarily relevant, we say, to any proper judicial
assessments. And I will make this submission good in
a moment by reference to an authority, but on any view,
it is absolutely common sense that credit generally was
relevant to the acceptance or rejection of the lead
claimants' evidence.
In our respectful submission, it was right that
your Lordship should have regard to the challenges in
fact made, as your Lordship did, not to parse them in
the way rather artificially that Post Office invited the
course to do.
So category 1 was pre-contract. And then category 2
was lots of evidence about credit, and category 3 was
evidence about how things worked in reality. That was
essentially responsive evidence to the defendants'
evidence that it was adducing in support of its pleaded
case.
MR JUSTICE FRASER: It also goes to credit too, though,
doesn't it?
MR GREEN: I was going to say there is a big overlap, as
your Lordship I think put to my learned friend.
MR JUSTICE FRASER: Say, for example, Mr Abdulla, if
Mr Abdulla had not been accused of lying and had not
been accused of a criminal offence and had not in fact
been asked at all about his suspension and termination,
then, for example, Mrs Ridge's suspension interview with
him would not necessarily be relevant.
MR GREEN: I might not have needed to cross-examine on it.
MR JUSTICE FRASER: Whether you needed or not, let's put it
to one side. I am talking about strict admissibility
and relevance, because evidence has to be relevant in
order to be admissible.
MR GREEN: Precisely.
MR JUSTICE FRASER: Once, for example, he was cross-examined
on the transcript of his suspension interview, then you
became entitled to ask questions. The way that
Lord Grabiner explained it this morning, though, is that
that attack on Mr Abdulla's credit should only have been
considered insofar as it went to pre-contractual --
well, to contractual formation matters and that
I crossed the line by going wider than that and dealing
with the other matters that Mr Cavender had put to
Mr Abdulla. What do you have to say about that?
MR GREEN: With no disrespect to my learned friend, that is
a hopeless and unrealistic submission and it is wrong.
MR JUSTICE FRASER: All right.
MR GREEN: If a challenge is adduced as to credit, and
I would say a fortiori where someone is accused of
a criminal offence or dishonesty --
MR JUSTICE FRASER: That is why I chose Mr Abdulla as an
example. There were two lead claimants accused of
criminal offences, and I think Mrs Stockdale was the
other one.
MR GREEN: Yes.
MR JUSTICE FRASER: All right.
MR GREEN: There is a powerful argument that ex debito
justitiae they're entitled to a finding openly in the
judgment if the court does not agree with what has been
put openly to them. And even if that is not right, if
there is no entitlement, it is certainly permissible.
MR JUSTICE FRASER: I didn't make any findings in respect of
either of those points.
MR GREEN: No, my Lord. That is my point, and I am saying
what your Lordship did fell well below that.
Your Lordship took a view about credibility in the light
of the matters that were put and the answers that were
given.
And the extraordinary contortions that the
Post Office found themselves in are reflected at
paragraphs 80 to 82 in our skeleton argument.
MR JUSTICE FRASER: Let me have a look.
MR GREEN: I know that my learned friend Lord Grabiner read
out the passage in the transcript where I interrupted my
learned friend Mr Cavender, who was saying: well,
someone in my position would normally want to say that
Mr Abdulla wasn't telling the truth.
MR JUSTICE FRASER: Where am I going?
MR GREEN: Page 80.
MR JUSTICE FRASER: I thought you said paragraph 80, I am
sorry. This is in the annex.
MR GREEN: Yes, in the annex, annex 1.
MR JUSTICE FRASER: Which paragraphs?
MR GREEN: It starts at 197, my Lord. {B9.4/2/80}
MR JUSTICE FRASER: Yes.
MR GREEN: The reason this arose, as reflected in the
transcript, was my learned friend was making the
submission that someone in his position would normally
want to say is that Mr Abdulla had not given honest
evidence. I interrupted to point out that is exactly
what their closing submissions in writing did say at
paragraph 592.
MR JUSTICE FRASER: That is the passage that Lord Grabiner
took me to this morning.
MR GREEN: Precisely, and what follows from that, as your
Lordship rightly remembered --
MR JUSTICE FRASER: I think I politely told you to stop
interrupting.
MR GREEN: I think you politely told me to stop
interrupting, which I did and was noted. What then
happens is that the matter is effectively sought to be
cleared up by the document that we have at {A/18/1}
because the court was not clear precisely where this
dividing line was drawn.
This is the note at A/18/1, and the Post Office's
position by that stage, after closing, was that:
"The court should refrain from making any findings
of fact on matters going to issues outside the scope of
the Common Issues trial, specifically matters going to
issues of breach and causation. It follows, for example
that no findings should be made on whether various
claimants were guilty of false accounting, nor, by
parity of reasoning, should findings be made as to how
Post Office investigated losses or issues associated
with false accounting.
"Conversely, findings of fact will need to be made
on matters going, or arguably going, to the
Common Issues, in particular, on whether the various
claimants did or did not receive various contractual
documents and other documents relevant to the
Common Issues at or before the time of contracting.
Those findings will necessarily require the court to
take a view as to the credibility of the claimant and
the Post Office witnesses in their evidence on those
matters.
"Post Office's position is that in making those
findings and in taking that view on credibility, the
court should:
"(a) Take account of evidence given by witnesses on
matters within the scope of the Common Issues trial.
So, for example, the court's findings on whether
Mr Bates received a copy ... will presumably take into
account the evidence he gave on that issue, and on
associated issues raised in cross-examination, (for
example, whether he is careful generally or whether he
had a copy of the SPMC when writing to the
Post Office ..."
And so on:
"(b) Take account of evidence on matters which go to
the witnesses' credibility, but do not risk trespassing
on any future trial, because they do not go to issues of
breach or causation. For example, Mr Abdulla's evidence
on whether Christine Adams and Christine Stephens were
the same person can be taken into account in assessing
his credibility.
"(c) Not take account of evidence which, while it
may go to the witness's credibility risks trespassing on
a future trial or trials. For example, the Court should
not make any findings on whether Mr Abdulla falsely
accounted, even though such matters might be relevant to
his credibility. Nor (staying with this example) should
the court base any findings on Mr Abdulla's credibility
which are necessary to decide the Common Issues on his
evidence as to the allegations of false accounting made
against him."
Pausing there, they then go on to say that:
"To facilitate drawing that line as cleanly is
a possible in the circumstances, the Post Office
withdraws the submissions made in the seventh and eighth
sentences of paragraph 592 of its closing submissions."
We have reproduced that at page 81 and page 82 of
our skeleton argument {B9.4/2/82}.
MR JUSTICE FRASER: Is that the strike through in
paragraph 200?
MR GREEN: Exactly, and what it leaves in place is:
"The central fact about Mr Abdulla's evidence can't
be avoided. He lied frequently and brazenly."
MR JUSTICE FRASER: That specifically wasn't withdrawn.
MR GREEN: Precisely, and that is left in play and
specifically not withdrawn.
And moreover, if your Lordship looks at the bottom
of that paragraph:
"He said that he was given the impression in the
interview held following the revelation of his
wrongdoing that if he paid back the money he would be
reinstated; that was untrue, as the transcript showed.
He claimed to have called the helpline very frequently,
then, when the call logs were put to him, said that in
fact he gave up and stopped calling. And he claimed to
believe this was all a conspiracy to eject him from his
branch."
Pausing there, not only was the very carefully
parsed approach to bright line relevance and irrelevance
such as to leave in the allegation that he lied
frequently and brazenly, but it was also specifically to
leave in all these post-contractual matters, including
helpline and all these other things and the impression
in the interview with Mrs Ridge.
MR JUSTICE FRASER: That is the suspension interview, isn't
it?
MR GREEN: Indeed. All of these later matters were left in
for your Lordship to consider, and your Lordship is now
saying there's an appearance of bias because you did.
MR JUSTICE FRASER: I am not, Lord Grabiner is saying.
MR GREEN: Lord Grabiner is saying there is an appearance of
bias because your Lordship did what you were asked to,
which is just bizarre. I have certainly never come
across a recusal application of this type, it must be
pretty unique.
MR JUSTICE FRASER: That is not entirely relevant, though.
MR GREEN: It is a trailblazer, if we can put it in those
terms, because it is difficult to find an example of
a recusal -- and I will show your Lordship why I say
this very carefully in a moment -- it is difficult to
find any example in the authorities of a judge carrying
out the judicial assessment that he is required to carry
out and giving judgment and the losing party then
alleging bias against him on a proper foundation.
MR JUSTICE FRASER: I think there is -- well, the case in
the bundle which seems closest is possibly Otkritie, but
I don't want to knock you off your course. I assume we
will get to the law at some point.
MR GREEN: My Lord let's do it now. Otkritie is at tab 26,
it is {B9.5/25/1}.
MR JUSTICE FRASER: But I do remain of the view, Mr Green,
that whether it is unique or not is not relevant.
MR GREEN: It is not dispositive, I agree. I am just trying
to identify where we are in the pantheon of types of
apparent bias that have been recognised by the courts
and I respectfully say on a proper analysis nowhere.
If we look at Otkritie, the -- can I just make one
final point in relation to those passages I was looking
at?
MR JUSTICE FRASER: Yes.
MR GREEN: I respectfully say that when a witness is accused
of dishonesty, the court will assess the witness'
honesty in the round in the light of the atmosphere in
court, the witness' demeanour and all the answers and
all the questions that the witness was asked. It is
quite wrong to urge upon the court a contrary approach.
For example, a witness who might have had difficulty
answering a question which was directly related to
a Common Issue, but gave answers which suggested he was
compellingly honest on a matter that one would now be
urged to leave out of account, we say is that
a completely wrong approach and not justified, and
I have not found any authority to support it.
MR JUSTICE FRASER: However I assess the credit of any of
the witnesses, that is contained on the face of judgment
number 3.
MR GREEN: Precisely.
MR JUSTICE FRASER: So any amplification or an argument
about it or analysis doesn't much matter, really.
MR GREEN: No. No, my Lord. The only point we are
respectfully saying is that the basis of the application
criticising your Lordship's judgment is wrong.
MR JUSTICE FRASER: Yes, all right.
MR GREEN: There is a second facet to that, which is this.
That what is said is that not only has your Lordship
fallen into the error of considering irrelevant
material, because that is present in all three
categories, but studiously avoided is any suggestion
that such findings would not have been otherwise
available to you.
So there is no suggestion that the impugned findings
were without proper foundation in the evidence you did
hear at all. What is said is they are irrelevant and
your Lordship should not have made those findings for
a number of reasons.
In the category of -- in the second two categories,
what is said about -- or the third category, perhaps,
the witnesses, my learned friend said this morning at
page 94 of the transcript between lines 14 and 19 that
your Lordship's findings against witnesses would
effectively create apparent bias in relation to
your Lordship entertaining their evidence in future
trials. That is effectively the submission that is
made.
My Lord, that is wrong in law, and demonstrably so,
and I will explain why. If we go to paragraph 40 of
Otkritie --
MR JUSTICE FRASER: 14.
MR GREEN: 40, which is on page 14 {B9.5/25/14}. One can
see in the second line of paragraph 4:
"The authorities to which I have referred make it
clear that the mere fact that the judge has made adverse
findings against a defendant (or any party to an action)
does not mean that a fair-minded and informed observer
would think the judge was biased."
And your Lordship will have seen our treatment of
the Ablyazov decision in the skeleton, and the point
about the Ablyazov decision was the prior consideration
by the court in that case of matters going directly to
credibility in the context of contempt.
MR JUSTICE FRASER: Mr Justice Teare sentenced Mr Ablyazov
to 22 months, I think.
MR GREEN: Precisely, and you could not get a more extreme
context for the Ablyazov decision than that. And if
I could take your Lordship to Ablyazov for a moment,
please, which is at {B9.5/21/27}.
MR JUSTICE FRASER: Are we going away from Otkritie or are
we coming back?
MR GREEN: I was going to come back to that in a minute, if
I may.
MR JUSTICE FRASER: Where is Ablyazov?
MR GREEN: It is hard copy tab 22.
MR JUSTICE FRASER: Okay.
MR GREEN: {B9.5/21/27}.
MR JUSTICE FRASER: Yes.
MR GREEN: This is in the context of -- perhaps we can start
on page 25 just go back to the discussion on apparent
bias and where it begins.
MR JUSTICE FRASER: Page 25.
MR GREEN: Page 25 at paragraph 65 {B9.5/21/25}.
MR JUSTICE FRASER: Yes.
MR GREEN: At the foot of that page, your Lordship will see:
"Although the principles of apparent bias are now
well-established and have not been in dispute in this
case, the application of them is wholly fact-sensitive."
So the submission I made earlier about context is
underpinned throughout the authorities.
MR JUSTICE FRASER: Yes.
MR GREEN: At 66, just above 66, there is a qualification to
the normal rule that findings against a party won't be
a ground for a bias in a future trial. It says here:
"A case for recusal may always arise, however, where
a judge has previously expressed himself in vituperative
or intemperate terms. That however, has not been
alleged in this case."
And just above that your Lordship will see --
MR JUSTICE FRASER: It is alleged in the instant
application, though.
MR GREEN: Not quite in those words, but critical invective.
MR JUSTICE FRASER: It's critical invective. I interpreted
that as meaning nonjudicial language.
MR GREEN: Indeed.
And just above, your Lordship will note just below
D:
"Fifthly no example of a designated judge being
required to recuse himself or herself has been found."
That is in the context of a designated judge in the
Commercial Court, we say a fortiori the case of
a managing judge in group litigation, and that is
relevant context and it goes to that fourth point on
context by way of background that I identified in
opening.
At 68 the court is looking at {B9.5.21/27} where
a judge has heard pre-trial evidence and may have come
to conclusions.
MR JUSTICE FRASER: Where are we looking now?
MR GREEN: On page 27, paragraph 68:
"Special considerations may arise in such cases.
Where a judge has had to form and express a view as to
the credibility of a party or an important witness as
a result of such cross-examination, should that require
the recusal of that judge from further involvement in
the litigation, even where he does so, as in this case,
in moderate terms? Committal applications have to be
judged on the criminal standard of proof, so that, where
such an application has resulted in a finding of
contempt of court, the judge has applied a standard of
proof higher than that of a civil trial.
"On the other hand, in any event, the findings of
the judge are part of the res gestae of the proceedings.
They are, as it were, writings on the wall and would
need to be considered (subject to appeal of course), for
any relevance in any subsequent proceedings and at trial
by the same judge or by any other judge. They may not
even be appealed or, as in this case, this may be
appealed and upheld so that in either event, it is not
possible to say that the judge was in error. In this
connection, certain findings might give rise to issue
estoppels, which would not only have to be taken into
consideration by any judge at trial but would be binding
on him, as Mr Béar accepts. What then is the difference
between the judge who bears in mind his own findings and
observations and another judge who reads what the first
judge has written, as he must be entitled to do?
Mr Béar submits that in the case of the first judge who
has heard and written, the impact of what he has learned
is more direct, immediate and powerful, and is that the
critical distinction. However, it seems to me that,
unless the first judge has shown by some judicial error,
such as the use of intemperate, let me say unjudicial,
language, or some misjudgment, might set up a complaint
of the appearance of bias, the fair-minded and informed
observer is unlikely to think that the first judge is in
any different position from the second judge - other
than he is more experienced in the litigation."
My Lord, this is quite important, because we learned
this morning from Lord Grabiner that the Post Office's
position is again one of these very nuanced positions in
relation to what the consequence of the application --
of your Lordship acceding to the recusal application
would be, and it is a surprising and difficult
proposition, because the entire premise of the
application, the thread which runs through all three
categories, is irrelevant material to which
your Lordship has wrongly had regard in the judgment.
Then that is deployed for different purposes.
But what is said is that, even though the
paragraphs, the two parts of paragraph 25 in Mr Parsons'
14th witness statement which deal with the second and
third categories, specifically say that there is an
appearance that your Lordship has not acted impartially
in the past in the Common Issues judgment, it is said
that that is not going to mean that the Common Issues
judgment has to be undone on that footing.
Now, in reality, I think that is an extremely
difficult submission to mount, because what is -- is it
truly the Post Office's position that when they seek to
appeal, as they have said they will, the Common Issues
judgment they are not going to trespass on the
suggestion that your Lordship took into account
irrelevant evidence? I doubt that.
If your Lordship has acceded to the recusal
application on the footing that you have taken into
account or addressed irrelevant evidence, why won't they
be able to say this to the Court of Appeal?
So it is a difficult position for them to adopt.
MR JUSTICE FRASER: Well, the position vis-a-vis judgment
number 3 and its future life depends on an application
for permission to appeal being made at some point,
permission either being granted and an appeal happening
or permission not being granted either by me or the
Court of Appeal, and we have not reached that point yet.
MR GREEN: No, my Lord, we haven't, but what your Lordship
was told immediately when my learned friend
Lord Grabiner rose to his feet was to put the court at
ease that acceding to the recusal application would not
mean that the Common Issues trial had to be re-run.
MR JUSTICE FRASER: In a sense, what happens to the
Common Issues trial has nothing to do with me.
MR GREEN: My Lord --
MR JUSTICE FRASER: So far as judgment number 3 is
concerned, the only order still available that any party
could ask me for is permission to appeal that judgment.
MR GREEN: Indeed.
MR JUSTICE FRASER: The order that reflected it has been
sealed.
MR GREEN: Indeed.
MR JUSTICE FRASER: So retrial, correction on appeal, any of
those points are nothing to do with me, are they?
MR GREEN: Let's approach it on that basis.
MR JUSTICE FRASER: Just in terms of jurisdiction --
MR GREEN: Jurisdictionally, that is right.
MR JUSTICE FRASER: It is a judgment that has been handed
down in final form and has been sealed.
MR GREEN: I think there was a sort of reassuring,
authoritative suggestion to your Lordship that you
needn't worry too much if you do accede to this because
it will all be all right.
MR JUSTICE FRASER: I didn't interpret it in those terms.
MR GREEN: I wrongly did, so I needn't address your Lordship
further on it --
MR JUSTICE FRASER: As far as I am concerned, I am pretty
clear that this is what the Post Office is submitting,
but if it is not, then Lord Grabiner will correct me at
the reply stage. This application concerns two parts of
the litigation, the extant Horizon trial --
MR GREEN: Indeed.
MR JUSTICE FRASER: -- he has been very clear about that
indeed, and it is a point that I made myself nearly two
weeks ago, because although it says adjourn, it really
means a backstop and restart in front of someone else.
And the other is my role as managing judge in the group
litigation. Those are the two heads.
MR GREEN: My Lord, they are.
MR JUSTICE FRASER: Whatever concomitant effect there might
be on judgment number 3 is gloriously off-stage, isn't
it?
MR GREEN: My Lord, I'll move on. Shall we leave it
gloriously off-stage? I think I made the submission to
your Lordship that in effect there is a collateral
attack on the Common Issues judgment number 3 because
what is being said is that your Lordship had regard to
irrelevant matters and didn't behave impartially in
drafting that judgment.
MR JUSTICE FRASER: I am not sure the second of those two
points is necessarily correct, but let's put it to one
side because it is not part of this application.
MR GREEN: I will just press on with the primary submission,
which is simply this: that the authorities effectively
sing with one voice at the highest level of authority
that the litmus test really is whether what the first
judge does he does is part and parcel of his judicial
assessment of the litigation before him.
And that is in Ablyazov at paragraph 70, as
your Lordship will probably know {B9.5/21/27}. What
Lord Justice Rix says there is:
"In this connection, it seems to me that the
critical consideration is that what the first judge does
he does is part and parcel of his judicial assessment of
the litigation before him. He is not prejudging by
reference to extraneous matters or predilections or
preferences. He is not even bringing to this litigation
matters from another case [et cetera and so forth]. He
is judging the matter before him, as he is required by
his office to do, and if he does so fairly and
judicially, I do not see that the fair-minded and
informed observer would consider there was any
possibility of bias."
And, my Lord, I only mention in passing that in the
next tab in the bundle we have got O'Neill, number 2,
And at page 23 of that {B9.5/22/23}, paragraph 51, that
passage, although in the context of a criminal case that
the Supreme Court was dealing with there, that passage
is cited with approval as applicable not just to civil
cases and criminal cases.
And that begs the question, my Lord, well, what is
your Lordship duty-bound to do? There is a ready answer
in the bundle at tab 29, in the Harb case, which is at
{B9.5/28/1}.
MR JUSTICE FRASER: Which paragraph?
MR GREEN: If we look first of all at paragraph 28 on
page 8.
MR JUSTICE FRASER: Paragraph?
MR GREEN: 28 on page {B9/5/28/8} of the report, this is my
learned friend making submissions in that case, and:
"Lord Grabiner submits that in the light of
Mrs Harb's evidence the doubt expressed by the judge was
fully justified."
This is where the judge in the end accepted
Mrs Harb's evidence in circumstances where the basis for
doing so was hotly disputed, and I will come in a little
more detail to why in a moment:
"But despite that, he had failed to explain what had
given rise to the doubt or what had enabled him to
overcome it. Lord Grabiner has identified several
aspects of both her evidence and that of
Mrs Mustafa-Hasan which he submits called for careful
consideration, but which had not been identified or
discussed in the judgment. In his submission, the judge
failed to analyse the evidence properly. He had
accepted the evidence of Mrs Harb and Mrs Mustafa-Hasan
uncritically and as a result had reached conclusions
which were unsustainable on the totality of the evidence
before him. It is necessary, therefore, to examine more
closely the criticisms made of their evidence."
Now, pausing there, your Lordship will remember
possibly the most hard-edged submission that my learned
friend Lord Grabiner made to your Lordship was in
relation to speculations that evidence that some of the
Post Office's witnesses were giving was not necessarily
their own. And a number of passages --
MR JUSTICE FRASER: That was on the contents of witness
statements.
MR GREEN: Precisely, that what was in their witness
statements was not originally theirs.
MR JUSTICE FRASER: There was an extensive survey on the
contents of witness statements in the commercial and
business and property courts about a year ago which
received nearly a thousand responses. One of the
specific questions in it dealt with solicitors providing
material for a witness statement that wasn't in the
witness' own words. It was one of the questions.
MR GREEN: Precisely.
MR JUSTICE FRASER: And it was circulated every specialist
Bar Association and the London Litigation Solicitors
Association and widely advertised in magazines such as
Counsel.
MR GREEN: I was only going to -- I wasn't going to refer to
that survey particularly.
MR JUSTICE FRASER: That is in the public domain.
MR GREEN: Completely, and it is a point frequently made and
thought about carefully since witness statements were
introduced, because when I started and certainly when my
noble and my learned friend Lord Grabiner started, we
didn't have them. You rocked up in court, the witness
stood up and you found out what they said and then you
cross-examined them without knowing what they were going
to say.
MR JUSTICE FRASER: I am not sure "rocking up" is right.
MR GREEN: I might have put that a bit lightly.
MR JUSTICE FRASER: You might have rocked up. I am not sure
that is the correct way of putting it, in all
seriousness. Evidence-in-chief was given orally.
MR GREEN: Yes, evidence-in-chief was given orally. What
I was trying to convey, albeit rather slightly clumsily,
was you didn't pore over somebody's evidence for weeks
in advance of arriving at court and listening to what
they were going to say. So the observations that my
learned friend took your Lordship to about the contents
of the Post Office witness statements were directed to
your Lordship's judicial consideration of whether or not
that evidence was actually properly theirs.
And if we go over the page on to page 10 --
MR JUSTICE FRASER: Of?
MR GREEN: Harb, if we continue over the page {B9.5/28/10},
it says:
"Lord Grabiner has identified nine examples of what
he says was Mrs Harb's evasiveness or lack of
credibility."
And there are various examples. At the foot of
subparagraph (iii):
"When questioned about that, her replies were
rambling and confused and appeared to portray an
unwillingness to deal with the question.
"(iv) When asked by the judge why she had chosen to
omit that matter or any reference to the present
proceedings (but little else), she could provide no
satisfactory explanation and resorted to little more
than bluster."
And then at (v) over the page {B9.5/28/11},
your Lordship may think significantly, given the
submission being made to your Lordship about
your Lordship's approach:
"There were occasions when Mrs Harb professed to
being unable to remember matters set out in her witness
statement, giving rise to doubt whether the statement
contained her true recollection of events."
Pausing there, these are all criticisms leveled at
the court for failing properly to make the necessary
judicial assessment of the matters before it.
So we respectfully say not only were your Lordship's
observations available to you, but the analysis which
underpinned them was actually necessary on the approach
urged upon the court by my learned friend in this case.
At paragraph 34 on {B9.5/28/12}:
"In our view the judge's approach to the evidence
was unsatisfactory in a number of significant respects.
First, he failed to identify in sufficient detail the
questions that needed to be answered if he were to
decide whether an agreement of the kind alleged by
Mrs Harb had been made. In addition, he failed to carry
out a proper evaluation of all the evidence in order to
test its strengths and weaknesses. Having referred in
paragraph 80 to the fact that counsel for the Prince had
made extensive criticisms of Mrs Harb's evidence on the
grounds that it was inconsistent with her witness
statement, he failed to deal with any of those
criticisms and brushed them aside by saying that it was
unrealistic to expect Mrs Harb to have a clear
recollection of events 13 years after the event."
It goes on to say at the bottom of that paragraph.
"It also fails to deal with the criticisms of the
quality of her evidence and the way in which she
responded to questions."
Now, pausing there, so the criticisms that were made
were accepted by the court as proper criticisms and that
the judge had actually erred in failing to carry out the
necessary evaluation of all of that evidence. So,
my Lord, that illustrates -- I don't say completely or
exhaustively -- the nature of the judicial assessment
which it was your Lordship's duty to undertake of the
case actually presented before you.
And that we get both from the underlying
observations by Lord Justice Rix, but also the
repetition of that and the approval of it at
paragraph 51 of O'Neill that I have already shown
your Lordship.
So the right approach to this is to look at the
context, to look carefully at the way in which the
parties' pleaded cases were put before the court, the
evidence that the parties sought to adduce in support of
the factual assertions that they had identified in their
pleaded cases and the basis upon which the case was
opened and closed by the parties.
We respectfully say it is quite wrong for
your Lordship to be criticised for making findings on
matters which had been put in issue by the parties
before you unless they could not be relevant to the
judicial assessment that your Lordship was undertaking.
We respectfully say there are no findings of that
sort to be found in the judgment anywhere.
Is that a convenient moment for a short break,
my Lord?
MR JUSTICE FRASER: I think it probably is. How are you
doing in terms of --
MR GREEN: I will be done by 4 o'clock, or 5 past 4.
MR JUSTICE FRASER: I think Lord Grabiner needs time to come
back on points of law or other matters. We will have
a five minute break for the shorthand writers. We will
go from that clock. It will be 3.22, although I know
that sounds pedantic.
(3.17 pm)
(Short break)
(3.23 pm)
MR GREEN: My Lord, before we broke a bit earlier on
I mentioned to your Lordship the right approach to the
informed observer.
MR JUSTICE FRASER: Yes.
MR GREEN: Could I just show your Lordship the Hashim
authority at tab 6 in the bundle, which we find at
{B9.5/6/8}, just below A, the paragraph beginning, "The
parties to this appeal were agreed":
"The parties to this appeal were agreed that the
test to be applied in a case such as this was that
stated by the QBD in Topping, namely would a reasonable
and fair-minded person sitting in court and knowing all
the relevant facts have a reasonable suspicion that
a fair trial for the applicant was not possible?"
This was actually mid-trial, but the dictum is of
general application:
"Most, if not all, of the cases in which this test
has been discussed have been cases of modest dimensions.
We know of no case approaching the scale of this where
a charge of apparent bias has been made. That makes it
the more important to recognise, as we understand to be
agreed, that the hypothetical observer is not one who
makes his judgment after a brief visit to the court, but
one who is familiar with the detailed history of the
proceedings and the way in which cases of this kind are
tried."
So, my Lord, we say it is demonstrably right that
the informed observer is assumed to know the detail of
the history of the proceedings and the backdrop and
context of group litigation and how cases of that type
are --
MR JUSTICE FRASER: I think that passage is quoted in
Otkritie.
MR GREEN: Yes, I think actually it is slightly elaborated
on, I think, if I remember correctly.
MR JUSTICE FRASER: Paragraph?
MR GREEN: It is {B9.5/25/1}.
MR JUSTICE FRASER: Remind me where it is in the hard
bundle.
MR GREEN: Sorry, it is tab 26. If we look at page 8
{B9.5/25/8} --
MR JUSTICE FRASER: It is paragraph 18, isn't it?
MR GREEN: It is, it is paragraph 18. There are the two
observations by the Master of the Rolls, the first one,
the one we just looked at, and the second one dealing
with interlocutory applications, which all go one way,
which is, I think, not actually directly in point here,
but gives some background to the role of a managing
judge.
Was there an aspect of Otkritie that my Lord wanted
assistance on from earlier, because I said I would come
back to it, or at least to hear our submissions?
MR JUSTICE FRASER: I wouldn't say necessarily assistance
because it is fairly clear, but at paragraphs 31 and
32 -- because in that case the judge did recuse himself
and he was -- it was sent back and he was told he ought
not to have done.
MR GREEN: Precisely.
MR JUSTICE FRASER: But it was a relevant feature, wasn't
it, that he, the judge, in that case at first instance
felt no personal embarrassment or discomfort in
continuing?
MR GREEN: Yes.
MR JUSTICE FRASER: I thought he said in his judgment he was
only recusing himself with extreme reluctance and he
interpreted the two challenges as being actual bias,
which doesn't apply here.
MR GREEN: Quite.
MR JUSTICE FRASER: At 32, I think first instance judges --
or it is said it is important that they don't recuse
themselves too readily in long and complex cases.
MR GREEN: Indeed.
MR JUSTICE FRASER: I suppose this would count as a long and
complex case.
MR GREEN: Indeed, precisely. And there is also a point of
approach in fact in relation to the suggestion that an
applicant should be given the benefit of the doubt,
which is one of the submissions that my learned friend
made. I think that needs to be thought about quite
carefully.
MR JUSTICE FRASER: He does have authority for that.
MR GREEN: Indeed, my Lord, and I think one needs to
consider quite carefully what is being said, because
I think where the basis for doubt is properly
established, then it -- and what is in issue is not
de minimis, then one can ready see what the court means
about erring on the side of caution for the proper
purposes of the administration of justice and justice
being seen to be done. One quite understands that, but
in fact one sees in cases where the court is discussing
things like having a shareholding, for example, that may
be small, but more than de minimis.
MR JUSTICE FRASER: In a litigant?
MR GREEN: In a litigant, something like that.
MR JUSTICE FRASER: I see, yes.
MR GREEN: Once that is established and it is not absolutely
de minimis, then even though it may not naturally be
thought to amount to apparent bias, one might give the
benefit of the doubt to the applicant in that situation.
Similarly, if it is established that what a judge
has done has gone beyond the bounds of proper judicial
assessment, that it is not part and parcel of the
court's judicial assessment of the litigation as it was
presented to it.
As soon as you can say with confidence that the
court has materially and, one might say more than once
because of the point about repeatedly that we saw in the
earlier authority, stepped outside the boundaries of
a proper judicial assessment of the proceedings as they
were before the court, then at that point, one then has
to look at materiality, and say, well, maybe at that
point the applicant should be given the benefit of the
doubt.
But we respectfully submit that the anterior
question of whether the court has or has not done that
still falls to be objectively analysed in a sensible
way. What you don't get to do is to disapply the
objective test by a side-wind by complaining about
things that you lost on or lost on very badly and then
going, "Well, that must raise a doubt and I should get
the benefit of the doubt".
Because if that were the right approach, none of
these indications to judges not too lightly to recuse
themselves, either in general or in long-running
proceedings, we say a fortiori in group litigation, they
would be meaningless and it would allow an applicant for
recusal to completely circumvent the carefully
considered and now really undisputed approach to
apparent bias.
So I did want to make that point clear in relation
to the suggestion of being given the benefit of the
doubt, my Lord.
Can I show your Lordship just briefly, in relation
to the approach to the evidence, paragraph 114 of the
closing submissions, which are at {A/8/48}.
MR JUSTICE FRASER: Whose closing submissions?
MR GREEN: This is the Post Office's closing submissions.
This is the sort of difficulty that I think certainly
the claimants had with the approach that the Post Office
adopted, because, of course, obviously some factual
assertions were in in terms of relevance on the face of
the pleading. Then they appeared to be out at the
admissibility application and then they were in again
for cross-examination and then out again for some
purposes in argument, and then in again in the closing
arguments, in the closing submissions.
If we look at 114, we can see:
"It is important to bear in mind the kind of factual
situation that is encompassed by this principle."
And this is Post Office relying on the principle of
a fiduciary's breach of duty has led to an incomplete
evidential picture and this is Post Office seeking to
illustrate the point by reference to actual -- its
version of the evidence that the court heard and putting
in issue examples of this in the lead claims:
"For illustration only, Mr Abdulla admitted in
interview that he had inflated the cash declared in his
branch to disguise shortfalls."
That is the Post Office's case:
"Mrs Stockdale relied on the privilege against
self-incrimination when asked how she had got her
accounts to zero despite having shortfalls and without
making them good or settling centrally, and Mrs Dar had
the misfortune to engage an assistant who falsified cash
declarations and seemingly lost or stole large amounts
of foreign currency."
And so forth.
So we go over the page {A/8/49}, then there is
reliance on the evidence of Mrs Van Den Bogerd about the
necessarily and reliance by Post Office on honest and
accurate accounting, Mr Howarth, and then:
"It is appropriate that the evidential difficulty
created by false accounting worked to the detriment of
the dishonest agent."
So what Post Office sought to do was, in some cases
absolutely directly, as we had, for example, in the
closing about issues 8 and 9 and Angela Van Der Bogerd's
evidence, but in other cases by a sort of side-wind,
inviting the court to accept criticisms of the lead
claimants or their evidence as illustrations of
a problem upon which they relied authority certain
purposes in their arguments.
So it was replete with those sort of contradictions
in the sense that when evidence was helpful for the
Post Office, it was in, and when their witnesses
performed badly, that is out. And your Lordship
shouldn't really say anything about it because if you
do, it is frightfully unfair and you have made harsh
criticisms. And we respectfully say that in a sense,
that is what all of this is about.
They have adopted internally inconsistent positions
in relation to the relevance of evidence and essentially
tried to ride two horses going off in completely
different directions, and your Lordship has had to try
and manage the consequence of that, and clarify it,
where possible, on credibility, still leaving an
extremely unsatisfactory position, make findings in the
light of the litigation as it was presented before
court, and then be accused of apparent bias for having
done so.
We respectfully suggest that is a flawed basis for
an application of this sort, having in mind its
seriousness and gravamen.
My learned friend wants me to read paragraph 112, so
we will go back a page and read that {A/8/48}:
"In considering these factual issues, the court
should not lose sight of the prior and more important
point that what happened in practice (including what
individual C's knew from time to time and what
Post Office's internal views may have been) are
irrelevant and inadmissible as to the question of
whether the contracts exclude or modify the accounting
principles. That is a question of contractual
interpretation."
Now, pausing there, that illustrates a number of
points which are unsatisfactory about the way that
Post Office ran its case. Again, that is out, but in.
So we get in, out, in, out, all the way through, even on
the same page. But it is also wrong, because what is in
fact important, as your Lordship has already heard
argument on this in the admissibility application, it
wasn't just contractual principles that were in issue,
there were also questions of agency.
And the authorities, which we do have in the bundle
if we need to go to them, make it absolutely clear that
there may be agency even when the parties by contract
disclaim that there is. It's not dependent on
a contract at all; it is dependent on what, in practice,
the parties have consented to do for each other. And
that was one of key concessions which fed into
your Lordship's admissibility decision in judgment
number 2 and it is a factor which complexifies to
a great degree, we respectfully say an unsatisfactory
degree, the submissions which Post Office adopted before
the court in opening, which said that the contract had
to be construed in the light of the agency relationship,
because the agency relationship, as Garmac and Branwhite
both show, is that subsequent evidence of what the
parties actually do in practice will be relevant, but
may be less important.
The question is -- those cases also make clear that
an express agency set out in a contract is not
determinative of the scope and nature of the agency that
in fact exists. So it is hopeless to say: ah, well, the
contract said this about the agency.
The court is required, by completely uncontroversial
cases that are trite, to look carefully at what in fact
happened, to look at the nature and scope of the agency
and the extent to which and how that was operated in
practice.
It was in relation to agency accounting principles
that the branch trading statement loomed so large,
my Lord, so it is wrong to say that.
MR JUSTICE FRASER: Do you have a reference? You don't have
to take me to it now, but a reference for the
Post Office's opening to which you referred then about
construing the contractual relationship --
MR GREEN: Yes, if your Lordship looks at --
MR JUSTICE FRASER: -- in the light of the agency
relationship.
MR GREEN: Yes, if your Lordship looks at the Post Office's
opening at opening submissions at page 8, and the
opening submissions are {A/2/8}. I am grateful to
Ms Donnelly.
MR JUSTICE FRASER: A/2/8. I think that is the wrong A2.
MR GREEN: Sorry, A/2/8. May we just start at {A/2/7} to
give it context.
MR JUSTICE FRASER: It was just to give me a reference, you
don't have to ...
MR GREEN: I will show your Lordship. I am not going to go
through all the paragraphs, but 15 to 17 is context
autonomy and so forth. 17 is reliance on SPMs to
accurately record and transact and so forth. And then
over the page {A/2/8}, the reliance referred to in 18 is
the reliance is paragraph 17. We have just seen and it
provides crucial context. This is totally consonant
with their pleaded case, to which I have already
referred the court.
Then if we look at their third point at 21:
"Third and most importantly, SPMs act as
Post Office's agents when transacting Post Office
business, with all the ordinary obligation and
liabilities that agency entails. Ultimately,
Post Office cannot and does thought seek to supervise
and prescribe in detail everything that SPMs do in
operating the agency business, but the basic fact is
that SPMs are transacting Post Office business on its
behalf."
Then over the page, crucially {A/2/9}:
"The express and implied terms of the SPMC and the
NTC need to be viewed through the prism of an expressly
created agency relationship, and so the express
contractual terms sit atop the body of the law
regulating the duties of agents to their principals.
The common law principles of agency are important
background to the contracts and any implied terms need
to be considered (and shown to be necessary) against
that agency background."
And then 22:
"As such, SPMs are obliged to account to Post Office
as its agent. They are acting on Post Office's behalf
and the Post Office relies on them to do so."
The final line of paragraph 22:
"This core fact suffuses the contractual
relationship."
So your Lordship was being invited to consider the
nature of the agency in the course of construing and
determining what the contractual relationship was, so we
respectfully say that when you do that in accordance
with the authorities, identifying the nature and scope
and effect of the agency, it requires you to look at the
reality on the ground of who was in fact doing what.
And the evidence I showed you from
Mrs Van Den Bogerd was not correct in that respect.
Transactions were not -- the transactions that entered
the Subpostmaster's account were not in their sole
control. The fact there was no dispute button and that
they had to settle centrally or accept in the way that
the court heard evidence about, showed that was not
a proper starting point for the court to understand how
the branch trading statement came about and to
understand the evidence in respect of which
Angela Van Den Bogerd gave and directed those paragraphs
of her witness statement.
My Lord, there is a background point. Your Lordship
may remember it from the admissibility hearing, which
was that there is a suggestion that there was not
sufficient disclosure in relation to some of these
issues. Your Lordship may remember it is recorded in
your Lordship's judgment, in judgment number 2.
I directed your Lordship's attention to the disclosure
orders that did address things like helpline, training
and those things.
Then the second CMC order, 2 February, 22 February
and then the third CMC order. So I am not going to take
your Lordship to those, but it is wrong to proceed on
a footing that there had not been disclosure given in
relation to issues like helpline and those sorts of
things.
My Lord, finally, what Post Office, we respectfully
say, was seeking before the court was a trial at which
evidence of what happened on the ground, which is
advanced, if accepted, would be relevant to
construction, but if rejected and contrary findings
made, could then be characterised by Post Office as
relevant to breach and, therefore, your Lordship
couldn't have regard to them.
We say that that was a false dichotomy and an
approach that your Lordship was entitled to meet by just
making findings on the challenges as made on the
evidence before the court.
In fact, there is an irony in that Post Office's
position was effectively to seek a trial that was
one-sided, when it didn't get it, to then complain on
the footing of apparent bias about that and then to
invite the court effectively to consider the recusal
application as if the trial had been one-sided, which it
plainly wasn't. We respectfully say that is not the
right approach either.
My Lord, as to the NFSP, can I just deal with that.
Much has been made of the significance of the NFSP.
MR JUSTICE FRASER: The NFSP are actually mentioned in terms
within the NTC.
MR GREEN: Precisely, they are mentioned in the contract and
they are mentioned in the opening, and they are
mentioned in the evidence of two witnesses,
Mrs Van Den Bogerd and Mr Beal. And we have dealt with
this in annex 2 at page 93 onwards, which is
{B9.4/2/93}.
MR JUSTICE FRASER: Paragraph 235, I think.
MR GREEN: Exactly. We have just traced through there. For
convenience, the witness statement of Mr Beal at
paragraph 36, 40 to 41, and emphasising the NFSP's
independence at 45; the witness statement of
Mrs Van Den Bogerd at 98:
"The NFSP has publicly supported Post Office's view
that Horizon is robust."
And your Lordship will remember that was supposed to
play in by way of relevant background to the burden of
proof in an argument that, I think, was not that easy
for us to follow about the background likelihood of
Horizon being robust and, therefore, not being the cause
of errors.
And then 235.3, in respect of litigation,
Post Office's written opening at paragraph 13:
"Furthermore, it should be noted that the NFSP,
which is the organisation which represents SPMs and
their interests nationwide, does not [underlined]
support this action and does not endorse the factual
premises of the claims."
So clearly put in issue. And then we have got the
relevant email which was disclosed during the trial,
with the reference to:
"Please note a signed agreement with the blood of
both myself and Paula is necessary on the future of the
NFSP before any agreement is granted on either NT or
other points."
And that is the Post Office's own document, agreed
it was only disclosed very, very late indeed, but it was
disclosed and I was able to put that to the witness in
any event.
Also, the challenge -- my learned friend is
essentially looking back at whether Mr Beal was telling
the truth about the publication of the grant framework
agreement in re-examination. And we have got the
reference to the transcript there at Day 6.
Then in closing, the assertion about the NFSP not
supporting the action or endorsing the factual premise
is repeated. It is now pitched a little less high:
"Whatever the organisation's precise degree of
independence ..."
Implicitly recognising the NFSP didn't look as
independent as they had started with saying it was, but
notwithstanding that qualification, Post Office still
relied on the involvement of the NFSP as a relevant
control mechanism for the purpose of its position on
implied terms, and that is set out, as your Lordship
sees, at paragraphs 345 to 346, which we have identified
there.
So it is quite wrong for the court to be criticised
in making a proper judicial assessment on the basis of
the evidence before the court, particularly in
circumstances where the disclosure was given to us
extremely late.
So in result, my Lord, we respectfully say that this
is an application which is wrongly premised on
a misunderstanding of the correct approach, does not pay
due heed to the context, either within the judgment,
immediate context of the actual text criticised or the
judgment as a whole, fails to have regard to how the
proceedings were in fact conducted and relies on the
court and the claimants now being told at this stage
that much of the evidence that we were put to the
trouble of challenging was all irrelevant. We find that
out now in a trial that happened last year.
And furthermore, the application proceeds on
a misunderstanding of the right approach in cases of
this sort, we say a fortiori where there is a designated
judge and a fortiori further where it is a managing
judge in group litigation.
For all of those reasons, my Lord, we say this is
misconceived and without merit.
Are there any points I can assist my Lord with?
MR JUSTICE FRASER: Yes, there is two questions that I would
like you to address, please, or two points.
One is the same as a point I asked Lord Grabiner
about. The Horizon Issues trial is well underway, and
there is, I think, half a day of factual evidence left.
What do you have to say about that? Were I minded to
recuse myself, what happens to that? Does it start
again in front of somebody else?
MR GREEN: I think it might have to start again. The
parties might be able to seek to agree whether the
evidence of particular witnesses was to be taken to be
their evidence.
MR JUSTICE FRASER: Absent an agreement, which, expressing
myself neutrally, can't necessarily be assumed in this
trial, all those witnesses would have to be called
again, wouldn't they?
MR GREEN: Indeed.
MR JUSTICE FRASER: And then the draft judgment number 3,
which is the focus of today, was distributed to the
parties on 8 March.
MR GREEN: Yes.
MR JUSTICE FRASER: I don't think this application was
issued until the 21st. Have I got those dates correct?
MR GREEN: Yes.
MR JUSTICE FRASER: And there are different references in
your skeleton, and the authorities about waiver and
delay.
MR GREEN: Precisely.
MR JUSTICE FRASER: Is there anything that you want to say
about that?
MR GREEN: We say it is extremely unsatisfactory that having
had the draft judgment for that period of time, this was
not raised with the court before the Horizon Issues
trial began.
We are not in a position necessarily to say that
amounts to a waiver, I don't think. But, in a sense,
having had the draft judgment for that period of time,
it was open to Post Office to tell the court in advance
of the Horizon trial that it would be making this
application.
MR JUSTICE FRASER: When was the first you learned of the
application?
MR GREEN: My Lord, that day. I was as surprised as
your Lordship. I think I learnt in court just before
lunch.
MR JUSTICE FRASER: Because it was Thursday, the 21st.
MR GREEN: It was Thursday, and I was cross-examining
Mr Godeseth, and I think at some point before lunch,
I was told this had been done. I had not seen it and
then my clerks printed it for us in chambers so I could
actually see it. I came with a bundle to court and
I think your Lordship got it at 5 to 2.
MR JUSTICE FRASER: I got it at 5 to 2, but then I was
sitting dealing with the trial, so ...
MR GREEN: The only observation on that is El Faraghy does
say that the correct approach is initially to write
a letter to the court to say, you know, "I think the
court should consider whether it is right that the court
continues to sit", and that very notably was not done.
There was an unheralded application at the end of week
two.
I think whether that amounts to a waiver or not is
probably a question for the court.
MR JUSTICE FRASER: Yes, all right.
Okay, the final point, and it might be that I don't
necessarily need to look at it, but I think the
strike-out application which led to judgment number 2
was supported by a witness statement of Mr Parsons,
which was his 9th.
MR GREEN: Indeed.
MR JUSTICE FRASER: Do you have a reference for that?
MR GREEN: My Lord, we absolutely do. I can tell you
exactly where it is because it is one of things that
I might have taken your Lordship to. It is
{B9.3/0.1/1}.
MR JUSTICE FRASER: Then beginning at page 1.
MR GREEN: It begins there. There is a passage there that
is relevant to one of the objections that my learned
friend made this morning, which is Mr Parsons' reference
to adverse publicity, which was the basis for
your Lordship's observations in the admissibility
judgment, which we respectfully say your Lordship didn't
completely forget when you were considering matters in
the Common Issues judgment.
MR JUSTICE FRASER: The only reason for asking for the
reference is in case I decide to read that again, but
you wouldn't discourage me from reading it again.
MR GREEN: Absolutely not, my Lord. And in fact, there is
an additional point to make on that, which is that we
faced precisely the same approach from Post Office in
relation to that application as we did to this.
MR JUSTICE FRASER: By "that application", you mean?
MR GREEN: The strike-out application, which is a serious
application, especially the timing of it when we were
trying to prepare for trial.
There were no particulars given of the parts of
evidence that were said to be objectionable, so I think
it was 5 September and I think my learned friend
Mr Warwick attended in order to obtain from the court
a direction, which the court gave in an order, that they
provided particulars.
So we have had the same modus operandi on two fairly
serious matters, and I leave the matter there, my Lord.
MR JUSTICE FRASER: All right. Unless there is anything
that you want to add.
MR GREEN: My Lord, no.
MR JUSTICE FRASER: Thank you very much.
Lord Grabiner, just on that point, so I don't
disrupt the flow, I assume you don't have any objection
to me looking at the 9th witness statement of Mr Parsons
again in due course.
LORD GRABINER: Certainly not, I am only too pleased if
your Lordship looks back at whatever you want to look
at.
MR JUSTICE FRASER: Thank you very much.
(3.55 pm)
Reply submissions by LORD GRABINER
LORD GRABINER: Can I deal with the point raised at the end
in relation to the delay point, if I can call it the
delay point. My understanding is that we received the
draft judgment on the Friday immediately prior to
commencement of the Horizon trial on the Monday.
I am afraid, standing here now, I don't know what
the dates are.
MR JUSTICE FRASER: It is the 8th. It was sent out on
Friday, the 8th. Monday, the 11th, was oral openings.
LORD GRABINER: There was a passage of time between then and
the decision that was communicated to make this
application. I need hardly point out that this has
been -- this is regarded as an extremely serious
application to be making. It was made at board level
within the client and it also involved the need for me
to be got up to speed from a standing start.
And I am not the only judicial figure or barrister
that has looked at this with a view to reaching that
conclusion. It has also been looked at by another very
senior person before the decision was taken to make this
application.
The delay, such as it is, is very, very tiny in the
context of the seriousness of case that is being put
forward.
We had no control over the commencement of the
Horizon case, obviously, because that was already
predetermined by the arrangements that were then in
place.
MR JUSTICE FRASER: I suppose one might observe an
adjournment could have been requested of a week or
something.
LORD GRABINER: It may be. I just don't know because
I wasn't involved at that stage. I have only been
involved just for a few days, literally.
MR JUSTICE FRASER: Understood.
LORD GRABINER: The other point that my learned friend made
right at the end, but if I can deal with it now, is in
relation to the El Faraghy case, which he said: well, it
would have been much more appropriate for us to have
communicated by letter with the court rather than to do
what we did. You will find that case, I think, in
tab 15.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Your Lordship may remember this one. This
is a postscript of Lord Justice Ward, paragraph 32, the
very last paragraph of the judgment. Does your Lordship
have that?
MR JUSTICE FRASER: Yes, the one that says recusal
applications are much more frequent than they used to
be.
LORD GRABINER: Yes, and he says:
"It is invidious for a judge to sit in judgment of
his own conduct in a case like this, but in many cases,
there will be no option but that the trial judge deal
with it himself or herself."
Pausing there, I would obviously rely upon that:
"If circumstances permit it [and I rely upon that as
well], I would urge that, first, an informal approach
should be made to the judge, for example by letter,
making the complaint and inviting recusal."
I should say careful consideration was given to
those observations before the decision was taken to do
what was done, and one of the --
MR JUSTICE FRASER: Issuing the application or asking me to
hear it?
LORD GRABINER: Going first to the court with a letter in
the form that is described there. And the decision was
taken not to adopt that approach simply because
your Lordship is the designated managing judge of the
litigation with an enormous knowledge and understanding
of the whole of the background history, and the idea
that one could have mounted and dealt with today, as we
have dealt with today, in front of a different judge is
a little bit unlikely.
So there were all those circumstances to take into
account. It would also have been open to your Lordship,
had you been so minded, actually to refer the matter to
another judge, if you had wished to do so.
But for all of those and some of those reasons, the
procedure that we adopted is what we adopted. But so
that your Lordship can be under no misunderstanding as
to how it came about that we are here in the way that we
are here. And I do not accept, if it is being
suggested, that the Lord Justice Ward approach is the
only approach and that is the one that we should have
adopted. I don't accept that, and nor does
Lord Justice Ward say that.
So far as my learned friend's submissions are
concerned, apart from those closing observations, what
has happened here is that my learned friend has simply
looked broadly at the judgment and he has taken some of
the big picture questions, and he has sought to show
that those areas have been effectively traversed by
Post Office's evidence and by cross-examination and so
on.
Now, in my submission, that approach is wrong for
two reasons. First of all, Post Office made clear
throughout that it did not accept that this material was
relevant to the Common Issues trial. That has been said
more times than I can recall. As everybody in this
court knows, that has been repeatedly stated all the way
through and we have never waived from that position.
Secondly, the fact that during the trial,
Post Office felt that it had to deal in a limited way
with matters which were not relevant to the
Common Issues does not make those matters relevant to
the Common Issues and, most importantly, it does not
enlarge the definition of the Common Issues.
Whether a given finding was necessary to decide the
Common Issues is a question which can only be answered
by reference to the relevant paragraphs of the judgment,
which is why I painstakingly -- and I apologise for
having done it -- but I painstakingly went through those
paragraphs because, in my submission, that is the only
proper way to analyse the issue and the concern that my
clients have.
And the point is that our detailed criticisms have
really not even been met by the other side. They never
went through those paragraphs and, indeed, that is
unsurprising, because they couldn't.
For example, if I can just summarise the points on
the submissions that we have been making, that none of
the arguments put forward by my learned friends would
justify findings on a whole range of matters. And
I will just rattle off the paragraph numbers and the
topics without going back to them, because we have
already been there.
But, for example, findings on Post Office's
knowledge of problems with Horizon: paragraphs 541, 543,
1115. Whether the Post Office sent threatening letters:
paragraphs 222, 462, 7231. Or the general findings as
to the inadequacy of the suspension processes:
paragraphs 403, 514, 517. Or the poor quality of the
training: paragraphs 193, 437, and 955.
And, of course, the reason my learned friend did not
go to the paragraphs was because he would need to
justify the findings and conclusions to which
your Lordship arrived, and he knows that he can't. And
he knows that he can't because he knows that they go
well beyond the issues, which is why he simply
cherrypicked his way through the argument throughout his
submissions to your Lordship.
Now, can I just -- I hope in the order in which the
points were made. I respectfully agree with an
observation that fell from your Lordship at the opening
of my learned friend's submissions when you simply said
to him that the way to test the validity of the argument
presented to the court was for the observer to look at
the judgment only, and in my respectful submission, that
is exactly the correct approach. I am not suggesting
that that person doesn't have full knowledge, they would
have full knowledge.
MR JUSTICE FRASER: Of all the proceedings.
LORD GRABINER: Absolutely, and I accept all of that, but at
the end of the day, what is involved here is the need to
examine the judgment. That is what this is all about.
Now, next, my learned friend drew attention to
paragraphs 93 and 94 of our generic defence. And the
reason for doing that was because he used it as a basis
for the proposition that thereby my clients had enlarged
the Common Issues. And he did that, as I say, through
reference to those pleadings, but he did not refer
your Lordship to the voluntarily particulars of
26 September 2018, which are in -- I don't need to turn
them up -- {B4/8/1}.
MR JUSTICE FRASER: They are also mentioned in judgment
number 2, I think.
LORD GRABINER: I am sure they are, and your Lordship is
inevitably ahead of me on that, but I am grateful.
But the point about those voluntary particulars is
that they confine the matters in 93 and 94 to the
contract issues, so that doesn't really help my learned
friend at all.
Then my learned friend referred to the post-trial
note, which he put up on to the screen. That is
document {A/18/1} and that document exactly states the
case that I have sought to make today and reflects the
submissions that I have been making to your Lordship.
If you look through that, you will see that really
is a nutshell summary of the arguments that I have been
seeking to make today to your Lordship.
Now, the peculiarity of this case -- step back. One
of the points that my learned friend came perilously
close to making was that because this is group
litigation, the prospects of there being a successful
complaint along the lines that we make would be just
about zero because, effectively, a group litigation
exercise with a judge in charge of the litigation would,
somehow or other, secure a much broader permit to do and
say the things that are said and that, somehow or other,
the apparent bias concept would then fall away as being
either marginal or unlikely ever to happen. Indeed, he
repeatedly made the point that there was no case on the
point and made some play of that.
Well, of course, the peculiarity of this case is the
fact that there are successive trials which have been
pre-arranged, and the reason why the apparent bias
argument might never have arisen in any other case, but
whether it has or not is supremely irrelevant, but the
reason why it is relevant here is because those
successive cases are specifically geared to dealing with
matters such as Horizon, breach of contract, damages and
all the rest of it, limitation, I think, and so on.
So it is precisely the kind of context where
somebody might be getting up to say: well, actually, in
this kind of context, there is a real danger or real
possibility that the apparent bias argument may succeed,
simply because perhaps not enough care has been gone
into the conclusions.
And I say that with great respect, because I'm not
suggesting for a moment that this was a simple case to
deal with or a simple series of cases to manage. It is
a difficult exercise, no doubt about it, and I am
entirely sympathetic. But I do respectfully submit that
given that context, it is very, very important indeed
that the matters that are made the subject of the first
judgment do not trespass upon those matters that are yet
to come.
That is the reason why this argument, whether or not
there has been some previous case, is a perfectly good
argument, and there is no force or validity in the
proposition that because there is not any history of
similar cases that, somehow or other, this is an easy
way in and the judge doesn't have this obligation to
deal with it.
MR JUSTICE FRASER: I think I have made it clear that the
fact that this may or may not have been the first time
doesn't make any difference.
LORD GRABINER: Of course not. It was just a bad point from
my learned friend, which I am sure he understands, and
it does happen to all of us.
The other point he made was by reference to his
paragraph -- 82, it is on page 82 of my learned friend's
skeleton argument. It is the quotation of
paragraph 592, which is taken from our submissions.
Does your Lordship have that handy?
MR JUSTICE FRASER: I do. Can you just give me the
paragraph number again?
LORD GRABINER: Paragraph 592, but on page 82 of my learned
friend's skeleton.
MR JUSTICE FRASER: Yes, I do have that.
LORD GRABINER: The only point I want to make about it is
that it obviously is referable only to the contract
terms {B9.4/2/82}:
"The central fact about Mr Abdulla's evidence cannot
be avoided: he lied frequently and brazenly. He began
by denying that, as his interview records, his previous
experience included tallying up figures. He then
claimed that he read the first and second paragraphs of
a letter [and that of course is the contract provision]
and then what appeared on its second page, but missed
out ..."
Et cetera, et cetera. So the point about that
passage is that it is concerned about the contract
provision.
MR JUSTICE FRASER: That is, Lord Grabiner, but the first
sentence after the struck through passage says:
"He said that he was given the impression in the
interview held following the revelation of his
wrongdoing that if he paid back the money, he would be
reinstated; that was untrue."
So that is a point going purely to the truth of the
evidence that he gave about post-contractual matters.
LORD GRABINER: Yes.
MR JUSTICE FRASER: Then the next two sentences follow.
LORD GRABINER: I take your Lordship's point, but again, it
comes back to a point that I sought to make earlier.
And as I have said, it is not an easy issue, but the
fact is that it should have been confined to the
contract issue matters that were in trial 1, and that is
precisely what that post-trial written document was
about that I made reference to a few minutes ago. That
is precisely what it says.
MR JUSTICE FRASER: Understood.
LORD GRABINER: Then there is the separate matter which
I think engaged some discussion between my learned
friend and your Lordship. It was in relation to the
impropriety involved in relation to the witness
statements. My learned friend is perfectly correct that
there were those wonderful days where one stood up in
court and called the witness and neither the judge nor
probably often the barristers even knew what was going
to come out of the witness' mouth. There was something
called a proof of evidence then, but you spent most of
your time striking it through as the witness failed to
come up to proof. But all that world, regrettably in
some ways, has gone by.
That has given rise to the debate which
your Lordship referred to, quite rightly, as to the
usefulness of these documents, first of all because they
are overlong and, secondly, you know, they make
references to loads of documents and are replete with
tonnes of quotes from them. They are hundreds of pages
long in any meaningful commercial trial.
At the end of the day, they may not be actually the
evidence of the individual. I completely understand all
of that, but that does not justify the insertion into
this judgment of the suggestion that that is what
happened in this case. I know it is a nice,
controversial subject, but it doesn't justify reaching
a conclusion, expressly or impliedly, that that is what
happened in this case.
It is a very serious criticism of professional
people's behaviour, even more so in this case because my
understanding is that the suggestion was never even put
to any witness. In other words, it was never said to
a witness, "That is not your evidence, that has been
concocted for you by your solicitor or, worst still,
your barrister", as the case may be.
So, in my submission, it was an entirely
inappropriate passage or couple of passages actually to
be inserted into the judgment.
Harb was interesting, only because I was in the
case, but it is very difficult to imagine what relevance
it had to the matters that your Lordship is presented
with here.
The key point, in my submission, is that everybody
knew that there were going to be further trials, and
that's why enormous care was necessary for the
production of the first judgment on the basis that it
might well impact upon key facts or key issues which
would inevitably arise in the later case.
On the question of whether or not there was
disclosure or evidence, my understanding is that there
has been no disclosure and no evidence or if there has
been any, it is only of a limited value at the moment
on, for example, investigations, on accounting by
individual postmasters, on transaction transactions. No
doubt there will be associated witness statements as
well, because these are matters yet to be determined in
future trials.
The only other point that I want to mention, my
final point, which will be a pleasing word for the
listeners, is in relation to the National Federation.
It is true, as I think your Lordship said, that the NFSP
may have been referred in the contract, but that, with
great respect, does not justify the conclusions that
there was some kind of conspiracy going on as between
the Federation and Post Office.
It doesn't justify making reference to that in the
judgment or speculating about the possibility of the
Federation changing its website in the course of the
trial. The fact that there is a reference in the
contract to the Federation simply means that insofar as
that is relevant to the contract issues that arose in
the first trial, that is the extent of it.
But to go on and make that explicit conclusion about
the possible bad nature of the relationship between the
Federation and Post Office is revealing, it is damaging.
And my submission, my respectful submission, is that it
might actually and would actually lead an independent
objective observer to the conclusion that it would be
very difficult, if not impossible, for your Lordship
fairly to try these later cases.
So those are our submissions.
MR JUSTICE FRASER: Thank you very much indeed.
MR GREEN: Might I make one point of clarification, in case
my learned friend wants to address it? It is a very
small point.
MR JUSTICE FRASER: Go on.
MR GREEN: It is just the relevance of the group litigation
point, that one may expect greater judicial interest and
more judicial concern about the respective parties'
approach to litigation and observations of that type
from a managing judge in ongoing litigation than one
would from a judge trying a unitary claim, and that
chimes with the sort of thing that I referred
your Lordship to in the authority.
MR JUSTICE FRASER: I will hear what Lord Grabiner has to
say, and I'm not going to have endless back and forth,
because Lord Grabiner is entitled to have the right of
reply.
MR GREEN: Of course.
LORD GRABINER: If I may respond to that, and I can do it by
showing your Lordship one paragraph in
Lord Justice Mummery's judgment in a case called
AWG Group v Morrison. It is in {B9.5/11/1}, I think.
MR JUSTICE FRASER: Yes.
LORD GRABINER: It is at paragraph 29 {B9.5/11/10}.
MR JUSTICE FRASER: This was the witness who was known to
the judge, I think.
LORD GRABINER: Yes, I think you are right.
MR JUSTICE FRASER: Paragraph 29, yes.
LORD GRABINER: My Lord, yes, Lord Justice Mummery. Does
your Lordship have that:
"While I fully understand the judge's concerns about
the prejudicial affect that his withdrawal from the
trial would have on the parties and on the
administration of justice, those concerns are totally
irrelevant to the crucial question of the real
possibility of bias and automatic disqualification of
the judge. In terms of time, cost and listing, it might
well be more efficient and convenient to proceed with
the trial, but efficiency and convenience are not the
determinative legal values: the paramount concern of the
legal system is to administer justice, which must be,
and must be seen by the litigants and fair-minded
members of the public, to be fair and impartial.
Anything less is not worth having."
If my learned friend's submission comes to the
proposition that because this is group litigation, the
court has, so to speak, free range, although I am sure
he wouldn't put it that widely, but the court has more
flexibility to circumvent the problem that I am
concerned with, then he is absolutely wrong, and the
correct approach is summarised there by
Lord Justice Mummery and your Lordship should bear that
in mind.
I am grateful to my friend for reminding me of that
passage. My Lord, those are my submissions.
MR JUSTICE FRASER: Thank you very much indeed. Bear with
me one second.
This is an application that I recuse myself both
from being the managing judge in group litigation and
also that I bring the Horizon Issues trial, which is
currently underway, to an end. The application is made
in the midst of the Horizon Issues trial, which started
on 11 March.
I am acutely conscious that parties need a rapid
answer when applications are made in the course of an
ongoing trial, but I am going to reserve my judgment on
this application. I am going to produce a written
reserved judgment, which will be judgment number 4.
I will endeavour to produce that written judgment as
soon as possible. It's highly unlikely to be this week,
so I am going to explain to the parties now that
judgment number 4 will not be handed down before
Tuesday, 9 April, which is next Tuesday at 2.00 pm. But
the parties will be notified by my clerk on Monday,
8 April either confirming that time, either of
a different time on that day or a different date and
time, if that date is not going to be achievable. So
there will be an update provided on Monday.
Depending upon the outcome, different matters will
need to be dealt with. That obviously depends whether
I recuse myself or not. I am not going to go into what
those other matters might be, but they can be dealt with
on the day that the judgment is handed down.
Thank you all very much for your attention. Thank
you for your helpful submissions, to all the counsel
involved, and also thank you to the electronic trial
bundle provider for re-activating my access to the
electronic trial bundle.
Anything necessary?
LORD GRABINER: Just to thank your Lordship for dealing with
it in this way.
MR JUSTICE FRASER: Pleasure. So until an indeterminate
date and time, but hopefully the first part of next
week.
(4.20 pm)
(The hearing was adjourned until a date to be fixed)
(10.30 am)
Housekeeping
LORD GRABINER: My Lord, on this application I appear for
the Post Office, and I think your Lordship will be
familiar with all the characters in the story. I am
with my learned friends Mr Cavender and Mr Cohen, and my
learned friends Mr Green, Ms Donnelly, Mr Warwick,
Mr Miletic and Ms MacKenzie appear for the claimants.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Your Lordship will have seen our skeleton
argument and a draft of the order that we seek. We
invite your Lordship to recuse your Lordship as managing
judge of this litigation and in association with that
application we also seek an order that the Horizon trial
currently being heard by your Lordship should be stayed
or adjourned, as the case may be. And for the avoidance
of doubt, we do not say that if this application
succeeds, the Common Issues trial will have to be
re-run.
MR JUSTICE FRASER: The Common Issues trial?
LORD GRABINER: Precisely. So if we are successful, we do
not say that that trial will be have to be re-run, which
I think is one of the concerns expressed by the other
side. We do propose to appeal against your Lordship's
judgment, and the view we take is that the matters we
complain about can be rectified on appeal without the
need for a retrial.
Can I turn, then, to apparent bias.
MR JUSTICE FRASER: Yes, just before you do, Lord Grabiner,
in terms of logistics, we usually have a break sometime
round about a quarter to 12 for five or ten minutes just
for the shorthand writers, which I know you will know is
entirely conventional.
LORD GRABINER: Indeed.
MR JUSTICE FRASER: Although the application is set down for
the whole day, if you could aim to finish your
submissions some time between 12.30 and 1 o'clock, or
1.30 at the latest.
Application by LORD GRABINER
LORD GRABINER: Yes, my Lord.
I can deal first of all with the law very shortly by
reference to four cases. And I am not going to trouble
your Lordship to turn them all up, but give you
a reference because there are short quotes I can deal
with.
The first is the well-known legal test stated by
Lord Hope in Porter v Magill, and the reference for the
transcript is {B9.5/8/1} and it is just in
paragraph 105, where Lord Hope says the test is, and
I quote:
"Whether the fair-minded and informed observer,
having considered the facts, would conclude that there
was a real possibility that the Tribunal was biased."
So it is an objective test.
The second case is the case of Otkritie v Urumov,
and that is in bundle 9.5, tab 25, {B9.5/25/1} and it is
at paragraph 1 of the judgment of Lord Justice Longmore,
to the effect that bias includes conveying the
impression of having prejudged any issue which remains
to be decided. And Lord Justice Longmore's observation
is this, and I quote:
"The concept of bias extends further to any real
possibility that a judge would approach a case with
a closed mind or indeed with anything other than an
objective view; a real possibility, in other words, that
he might in some way have prejudged the case."
The third case I want to show your Lordship, because
you may not be familiar with it, and there are passages
in it that I want to draw to the court's attention, and
that is the case of Mengiste. It is in your Lordship's
bundle {B9.5/23/1}.
MR JUSTICE FRASER: I think it is tab 24, isn't it?
LORD GRABINER: It is certainly tab 24 for me.
MR JUSTICE FRASER: It is tab 24 for me as well.
LORD GRABINER: Very good. I wasn't sure if the electronics
had caught up.
MR JUSTICE FRASER: Tab 24 for me is the costs law report
version, is that the one that you have?
LORD GRABINER: Yes. That case, we say, is instructive.
I can just tell your Lordship something about it first,
it will save going through the headnote. There
Mr Justice Peter Smith had criticised the evidence of an
Ethiopian law expert witness. He is improbably called
Mr Jones in the case, but that was to protect him
against possible repercussions in Ethiopia, so Mr Jones
is just a nom de plume.
In his judgment, he went on to criticise the
solicitors for the party who had relied on Mr Jones on
the basis that the solicitors had failed to educate the
expert as to his proper functions and duties.
Encouraged by what the judge had said, the other side
applied for a wasted costs order against the solicitors.
The judge granted permission for that application to
proceed, that was stage 1, but he refused to recuse
himself from the substantive hearing, stage 2. The
Court of Appeal held that the judge should have recused
himself because of his concluded views as to the
behaviour of the solicitors, as expressed in his
judgment.
If your Lordship would be kind enough to go
paragraph 59 of the judgment of Lady Justice Arden.
MR JUSTICE FRASER: Give me one second, my chair seems to be
broken, so I'm just swapping it for this one. (Pause)
LORD GRABINER: Paragraph 59, my Lord, the Lady Justice says
that she has reached the clear conclusion that this was
an exceptional case and that there was apparent bias
stemming from the facts of the case which meant that the
judge should have recused himself.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Then under various headings, the
cross-heading is "No necessity to make the findings"
and, and I want to emphasise the words:
"The judge's criticisms were not, in my judgment,
necessary to enable the judge to evaluate Mr Jones'
evidence."
And a few lines below that:
"The question why his reports contained inadmissible
material or he performed poorly as a witness, which
I accept were likely to increase costs, were primarily
relevant when it came to costs. As it seems to me, the
judge in making criticisms against the solicitors over
their explanation to Mr Jones about his duties was
concerned to warn off an application for a wasted costs
order against Mr Jones."
And that was to anticipate an application that had
not yet been made, and your Lordship might want to
glance at the balance of that paragraph, but I am not
going to read it out. And then the next cross-heading
is "Criticisms expressed in absolute terms," and
your Lordship might like to read that paragraph through.
Then the other cross-heading is "Repetition, further
criticism and concern to meet criticisms of the judge's
conduct."
And the learned Lord Justice says:
"While I might not have reached the same conclusion
if a criticism had been made in absolute terms on
a single occasion, here the judge accepted that there
were six criticisms of the appellant's solicitors in the
stay judgment."
And I wasn't going read the balance of that, but if
your Lordship would be kind enough to go to
paragraph 63, about seven or eight lines down:
"The second principle is that a judge who is doing
no more than discharge his judicial function does not
create an impression of bias, which is
well-established."
MR JUSTICE FRASER: I'm sorry, I have reached 63, but ...
LORD GRABINER: 63, you will see it is split into the first
principle and then the second principle, about six lines
down.
MR JUSTICE FRASER: I see, yes.
LORD GRABINER: "A judge who is doing no more than his
discharge his judicial function does not create an
impression of bias, which is well-established. What
occurs in that situation is adjudication, not unsought
findings."
And I emphasise those words, "unsought findings".
And then about four or five lines below that:
"Where there is an issue of apparent bias, the test
in Porter v Magill must be fearlessly applied by this
court and the fourth and fifth principles overlook the
possibility that mere criticism expressed in absolute
terms may of itself be extreme and unbalanced because
the impression to even the fair-minded observer that the
door has not been left open for whatever explanation the
party or non-party, who has not yet had the chance of
providing that explanation, may have to say."
And I shall be submitting that your Lordship does
express himself in the judgment in very firm terms.
The fourth case, and it is probably helpful to --
I have got a hard copy, old school bundle with me, but
the fourth case perhaps we can also just briefly look
at, and this is the final case, is Stubbs v The Queen
{B9.5/29/1}.
MR JUSTICE FRASER: Yes, it is. I too am using an old
school bundle.
LORD GRABINER: Very wise. But again, I don't know if
your Lordship is familiar with this case, it is an
appeal to the Privy Council in a murder trial from the
Caribbean, and you can see in the sort of second line of
the headnote:
"In 2007 a second trial took place before
a different judge and jury, in the course of which the
judge made certain rulings relating to the admissibility
of evidence and dock identification and ruled against
the submission of no case to answer. Then that trial
was aborted."
When there was in due course, I think, a third trial
and the defendants were convicted, the Court of Appeal,
on hearing that appeal:
"It transpired that the judge who had sat in the
second trial was a member of the Court of Appeal in the
third trial and the Court of Appeal rejected the
defendant's objection --"
This is just above F:
"-- that the participation of the same judge in the
second trial and in the appeal would not give rise to a
reasonable apprehension of bias, since the aborted trial
had taken place some seven years earlier, the judge
wouldn't be sitting alone, but in a panel of two other
judges."
So they seemed to think it didn't matter if one of
the three infected the other two, but the Privy Council
took a different view. Just from the top of the
headnote in the holding:
"Whether fair-minded and informed observer having
consider the facts would conclude that there was a real
possibility that the Tribunal was biased, that the
appearance of bias as a result of pre-determination or
pre-judgment was a recognised ground for other recusal."
If your Lordship would be kind enough to just flick
to paragraph 16 in the judgment of Lord Lloyd-Jones in
F, between F and G, a couple of lines below F:
"The issue will only arise in all the circumstances
where prior involvement is such as might suggest to
a fair-minded and informed observer that the judge's
mind is closed in some respect relevant to the decision
which must now be made."
Then after some citation of Locabail, which I will
come back to later on, the learned judge says:
"However, relevant factors are likely to include the
nature of the previous and current issues, their
proximity to each other and the terms in which the
previous determinations were pronounced."
And in paragraph 17:
"It is not acceptable for a judge to form or to give
the impression of having formed a concluded view on an
issue prior to hearing full argument by all parties on
the point."
So that is all I wanted to show your Lordship for
the moment, but judging from my learned friend's
skeleton argument, the impression I have is that what
I have just been showing your Lordship is not
controversial.
Then it is also necessary, we suggest, to bear mind
the big picture. The incomplete disclosure and evidence
itself relates only to a tiny proportion of the claimant
group. There were six lead claimants in the
Common Issues trial out of, I gather, about 550-odd
claimants, and the 550-odd are themselves a small
proportion of the many thousands of Subpostmasters
currently serving, so there must also be some historic
examples as well of people who are no longer acting as
Subpostmasters, and we don't have any disclosure or
evidence from any of that wider group.
MR JUSTICE FRASER: But there would never be disclosure of
Subpostmasters who weren't claimants, would there?
LORD GRABINER: Well, in principle, that is quite correct,
but there would be disclosure from those who were.
MR JUSTICE FRASER: Yes.
LORD GRABINER: And I suppose in theory, it might be
possible for disclosure to be widened, notwithstanding
the fact that the others are not parties as claimants.
I don't know.
MR JUSTICE FRASER: In terms of third party disclosure?
LORD GRABINER: Yes, exactly.
MR JUSTICE FRASER: Yes.
LORD GRABINER: But it is a theoretical possibility,
I readily accept.
MR JUSTICE FRASER: But you are entirely right, there were
six lead claimants out of 557 claimants in the
litigation.
LORD GRABINER: I am grateful. Two points follow from that.
First of all, the danger of reaching premature
conclusions is magnified because the incomplete
evidential picture for the lead claimants is itself part
of a larger unexplored evidential canvass, in my
submission.
And secondly, the consequence of making that mistake
would be great, given -- or could be great, given that
this litigation extends far beyond the lead claimants'
claims.
Turning to this litigation. Obviously your Lordship
is very familiar with it and the various disputes
between the parties, and I am not going to even attempt
to rehearse the details. The starting point of my
submissions is the proper scope of what is called the
Common Issues trial. The Common Issues are set out in
your Lordship's paragraph 45 of the judgment, very
helpfully.
And then paragraph 1 of the order of the
27 October 2017, just for the transcript, that is
{B9.3/2/1}, gave an accurate and convenient precis of
the Common Issues, and paragraph 1 simply says:
"Issues relating to the legal relationship between
the parties."
So it couldn't be clearer or more concise than that.
For convenience, we have summarised the Common Issues
under four headings in paragraph 18 of our skeleton
argument.
We have comprehended every item there, and
paragraph 18 summarises each of those items.
Your Lordship might want to glance at that.
MR JUSTICE FRASER: Just give me a second. I had been
working off the schedule to the order, but I am sure
they are correctly identified. Paragraph 18 of your
skeleton?
LORD GRABINER: Paragraph 18 of our skeleton on page 7. It
identifies all the issues, but puts them under
particular sort of generic headings.
In our submission, there was little scope for
factual evidence at the Common Issues trial, looking at
those items.
Then pre-trial at the 22 February 2018 hearing,
your Lordship said that you had, and I quote "reminded
yourself that the Common Issues were" and I quote
"purely points of construction". And the reference for
that, but we don't need to go to it, is the
22 February 2018 hearing at page 9D and that is
{B9.3/2/85}. That is probably a transcript page
reference.
Now, that was, in my submission, an important and
accurate statement. Your Lordship repeated a version of
the same point several times at a number of
interlocutory hearings thereafter. The parties were
entitled to rely on those clear and correct indications
as to the scope of the Common Issues trial.
As your Lordship rightly said on various occasions,
evidence was only admissible if it went to the
Common Issues. You said that at the 5 June 2018 hearing
at page 57E {B9.3/2/271} and your Lordship also said
that the only relevant evidence for contractual
construction is knowledge common to the parties, when
the relevant contract was made and with which, if I may
say so, I respectfully agree, 22 February 2018 hearing
at page 9E, {B9.3/2/85}, and the other point for that
trial was a much narrower one, namely whether the lead
claimants had been properly notified of the contractual
terms, which obviously was an issue in the case in
Common Issues 1.
MR JUSTICE FRASER: I think it went to a number of
Common Issues, due to onerous and unusual terms.
LORD GRABINER: Indeed, under the Unfair Contract Terms Act.
MR JUSTICE FRASER: Onerous and usual terms in terms of
incorporation and then if incorporated, whether they
were reasonable under the Unfair Contract Terms Act.
LORD GRABINER: Exactly, and your Lordship is familiar with
the successive trial structure that was set up under the
litigation management arrangement. Under that scheme,
in respect of each trial, there needs to be disclosure
and witness statements geared to the issues in the
particular trial.
The Common Issues trial was never intended to decide
issues which fall to be investigated and determined in
some later trial, and still less to provide a platform
for wide-ranging evidence, for example on the Horizon
Issues or alleged breaches of duty. That is an
important point.
Prior to and during the Common Issues trial, the
Post Office on a number of occasions drew attention to
its developing concern that the evidence and arguments
adduced by the claimants might lead your Lordship, when
giving judgment, to trespass on matters outside the
Common Issues which were yet to be tried, for example
Horizon or breach issues.
The relevant passages are scheduled to our skeleton
argument, which I think your Lordship will have seen.
Just in summary, they include transcripts of pre-trial
hearings, extracts from our trial skeleton, passages
from Mr Cavender's oral opening and closing at the
trial, as well as extracts from the Post Office's
written closing at trial. But in the event, I am
I afraid, those concerns, in my submission, turned out
to be well-founded.
In addition to our criticisms of the way the
judgment deals with issues outside of the Common Issues,
we also complain about prejudicial and irrelevant
observations made in the judgment about Post Office and
its witnesses.
Both categories of complaint, taken separately or
together, would lead the fair-minded observer to
conclude that there is at least a real possibility that
your Lordship will not be able to judge the remainder of
these proceedings impartially. I regret making that
submission, but I do make the submission firmly.
Now, in these submissions, I propose to focus on the
paragraphs in your Lordship's judgment we rely on and
which we have given notice of. In the interests of
time, I was not proposing to take your Lordship through
Mr Parsons' 14th and 15th witness statements, which were
prepared and served specifically for this hearing, and
I am sure your Lordship has looked at those.
MR JUSTICE FRASER: They identify effectively pre-trial
transcript passages and then in the 15th, the actual
specific judgment passages.
LORD GRABINER: My Lord, yes. And similarly, I would prefer
to take our skeleton argument as read. I should make it
clear that we rely on everything in those witness
statements and in our skeleton argument in support of
this application.
Now, as to the first category, I want to go to the
paragraphs in the judgment which show that your Lordship
made many findings and numerous observations both about
the facts and the witnesses, which, in the first place,
were not necessary for the purpose of deciding the
matters which were the subject of the Common Issues
trial, and that this was done without disclosure and
witness evidence, and secondly, because your Lordship
adopted that approach, the judgment prejudges many
matters, including technical characteristics of the
Horizon system and supposed breaches of contract and
duties on the part of Post Office, which are still to be
dealt with in the Horizon trial and the other future
trials.
Now, it would be helpful if your Lordship would be
kind enough to take up my learned friend's skeleton
argument. I just want to make a brief reference to
a couple of the paragraphs because my learned friend's
skeleton helpfully narrows the dispute. If,
your Lordship, you have got that skeleton handy, if
your Lordship would be kind enough to go to paragraph 8.
MR JUSTICE FRASER: This is Mr Green's skeleton?
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: Yes.
LORD GRABINER: What he says in paragraph 8 is:
"In the judgment, the judge correctly resolved
matters that were put in issue before him. He did so in
the light of the evidence adduced, how it was challenged
and the case advanced by the parties before him.
A party can't be surprised when a judge makes findings
on a point when the same party has elected to adduce
evidence on that point or to cross-examine on it."
In paragraph 9:
"The judge rightly made his assessment of the above
matters and resolved the Common Issues."
And I really emphasise those words:
"In the light of the parties' pleaded cases, in
particular Post Office's expressly pleaded case on
issues of construction and its procedural election not
to amend that case, this approach was a proper and
necessary part of his judicial assessment of the
proceedings before him."
And I emphasise those words as well. Then in
paragraph --
MR JUSTICE FRASER: There is no dispute that I had to
consider and resolve the Common Issues, I think.
LORD GRABINER: Indeed, that is common ground.
MR JUSTICE FRASER: And I had to do that in respect of the
six lead claimants as well.
LORD GRABINER: Indeed, absolutely.
MR JUSTICE FRASER: And insofar as there were issues of
fact, because there were issues of contract formation --
LORD GRABINER: Indeed.
MR JUSTICE FRASER: -- that went to each of the six.
LORD GRABINER: Indeed.
MR JUSTICE FRASER: So I assume your position on that is
that insofar as fact had to be resolved to identify the
contractual relations of each of those six, that was
a necessary part of the Common Issues trial.
LORD GRABINER: Absolutely, I respectfully agree.
MR JUSTICE FRASER: All right.
LORD GRABINER: If your Lordship would look at paragraph 12,
my learned friend says:
"In any event, these matters were not irrelevant.
In many cases, they were relevant because of
Post Office's expressly pleaded case as to how the
relevant contract should be construed or in the
resolution of issues directly arising from challenges
mounted before the court by Post Office's own
cross-examination of lead claimants."
You see how the point has now been elided away from
the contract terms into the cross-examination debate.
Then in 13:
"It does not lie in the Post Office mouth to
complain that the judge resolved matters that the
Post Office itself elected to put in issue and contested
before him or on which it expressly invited him to make
findings, still less as a basis upon which to seek to
derail the entire group litigation by alleged apparent
bias."
Then in paragraph 17:
"The court cannot be fairly criticised for making
a judicial assessment of both parties' cases, evidence
and witnesses in the usual way, particularly on the
basis of the parties' respective pleaded cases and the
way their cases were actually advanced at the
Common Issues trial."
So there is a clear departure away from the contract
terms, as your Lordship put it to me a few moments ago,
and into matters such as what was pleaded and what was
cross-examined and so on.
MR JUSTICE FRASER: But just pausing there just for
a moment, because your expression "the cross-examination
debate" I think as useful shorthand term for it. But if
the Post Office was challenging a particular lead
claimant's veracity and cross-examined on particular
material to demonstrate that that witness should not be
believed, and there is an issue of fact as to whether
that witness' contractual relations with the Post Office
were formed on X, Y, or Z, does that mean that the
material in respect of which cross-examination has been
performed remains irrelevant or does it become relevant?
LORD GRABINER: If the cross-examination was concerned to
deal with the Common Issues, entirely appropriate to
deal with -- to make findings in relation to that
cross-examination, yes.
MR JUSTICE FRASER: What if it was done to deal with the
credit of the witness, which is itself in issue in
respect of their contract formation?
LORD GRABINER: Well, as I say, if it is concerned with
contract formation, fair dos, but insofar as there might
have been cross-examination which went to wider issues
at the trial, which I understand is the case, that is
driven essentially by the background about whether or
not the material that was incorporated into the
claimants' witness statements was admissible and
relevant material.
One of the concerns on this side was not to leave
unchallenged matters which shouldn't have been in
evidence at all, because they were not relevant to the
Common Issues as defined. That, I think, is the area
for disagreement, and I will develop it a little bit
further, because when we look at various paragraphs in
the judgment, you will see how that distinction can be
demonstrated from the paragraphs in the judgment that we
rely upon.
But that was a grumbling issue all the way through,
because at the outset it was anticipated that that would
not be a problem, and indeed your Lordship at one stage
had actually invited the possibility that there would be
a strike-out application in respect of the witness
statements on the grounds that my side were saying that
the witness statements contained matters of fact which
were wholly irrelevant to the Common Issues.
In the event, when that application was made,
I think your Lordship said that would either be dealt
with by way of a strike out or by way of no
cross-examination. In the event, the strike-out
application was made, but was rejected by your Lordship.
But, of course, my side were then left in a quandary,
not knowing whether or not your Lordship would take
account of irrelevant material, irrelevant for the
purposes of the trial of the Common Issues. That,
I think, is the area for difference.
MR JUSTICE FRASER: The strike-out application was first, or
concerns about scope of evidence were first mentioned
before the witness statements had been served, so there
was a lot of debate about the scope of evidence that
might be served in the absence of seeing what that
evidence was.
LORD GRABINER: Yes.
MR JUSTICE FRASER: But I understand your submission. Your
submission is as a result of the judgment on the
strike-out application, you, the Post Office, was in
a quandary about what it could or should do in respect
of the evidence that had not been struck out, is that
correct?
LORD GRABINER: Precisely. What would be very, very
unattractive, in the face of the events that had
happened, that if, by the time you got to the trial, my
learned friend Mr Cavender spent a lot of his time
during my learned friend's Mr Green's cross-examination
of witnesses jumping up and down saying, "You can't put
that because it doesn't arise in the Common Issues
trial", nothing could be more irritating either to
Mr Green in his cross-examination, still less to the
learned judge, because that is just not the way to
proceed.
So that said, the only way in which you can cover
yourself, you either say nothing at all, which is a high
risk strategy because you don't know what the judge's
thinking is or what relevance the judge may apply to the
matters that have been the subject of the questioning,
or you actually indulge yourself in some
cross-examination.
But it doesn't following that because you have done
that, by some kind of process of osmosis, the definition
of the Common Issues are suddenly being dramatically
expanded or increased. It doesn't change the definition
of the Common Issues in the slightest. It means there
has been some cross-examination on some irrelevant
material, which is perfectly reasonable.
But I take your Lordship's point that if the
cross-examination goes to credit and was in respect of
a matter such as what were the contract terms, or some
other issue under the Common Issues' rubric, then that
would be fair dos, and if your Lordship came to
a conclusion about that, that would be reasonable.
But on the other hand, your Lordship came to
a conclusion about the credibility of some witness, but
in the context of a debate about breach of contract, in
my submission, that would be wholly irrelevant and
should not have entered upon the debate.
Similarly, if it was an issue about the working of
Horizon, the idea or the notion, as we shall see, I am
afraid, when we get to the paragraphs, that
your Lordship expresses a view about the witnesses'
position in relation to a Horizon Issue for example, in
my submission, that was an irrelevant consideration and
should not have figured in the judgment on the
Common Issues. I hope your Lordship understands where
I am coming from.
MR JUSTICE FRASER: No, I do. That is very clear. But just
to take a worked example, for example, in respect of
credit, there were issues of fact concerning
Mr Abdulla's contract formation.
LORD GRABINER: Indeed.
MR JUSTICE FRASER: And the claimant called, as is
conventional, its evidence of fact first and Mr Cavender
cross-examined Mr Abdulla quite extensively by reference
to what I will call his suspension interview, which was
the point at which the Post Office effectively sought
his side of the story for explanations for shortfall in
his branch accounts. In that interview, it was put to
Mr Abdulla that he had admitted false accounting, which
is a criminal offence, and that obviously went to his
credit.
Now, I assume, pausing there at that point, it can't
be said -- or maybe it can, but I would be grateful for
your guidance or your submissions on it. Can it be said
that that cross-examination of Mr Abdulla was irrelevant
because it went to the circumstances in which he was
suspended or --
LORD GRABINER: The answer to that is yes.
MR JUSTICE FRASER: You say it was irrelevant.
LORD GRABINER: Completely.
MR JUSTICE FRASER: When the Post Office made submissions in
closing that Mr Abdulla had been lying, how can those
submissions properly be considered without taking
account of the fact that the Post Office had put to
Mr Abdulla that he was guilty of a criminal offence?
LORD GRABINER: Would your Lordship bear with me?
I understand the point that you are putting to me.
I intend to come to the Mr Abdulla story in the judgment
and if I may, I will deal with it at that point.
MR JUSTICE FRASER: Yes, of course, yes.
LORD GRABINER: And then as I say, just coming back to the
point about those paragraphs in my learned friend's
skeleton --
MR JUSTICE FRASER: Yes.
LORD GRABINER: -- the claimants say that your Lordship
resolved matters in issue before you, and so they accept
that your Lordship has reached concluded findings. And
it follows that the essential difference between us is
that the claimants say that those findings were
necessary, that is their word in paragraph 9, to decide
the issues before you, and we say the opposite.
So that is a short point, but I think it does narrow
the issues somewhat.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Now, in support of their argument that
your Lordship had to decide these matters, they make
some play of the way that Post Office conducted the
trial. I anticipated these points, in part at least,
a few moments ago in my exchange with your Lordship, but
I can summarise them now. There are really two answers
to that point.
First, as explained in Parsons 14 and our skeleton,
this is irrelevant, ie the way that Post Office
conducted the trial. At all times, both before and
during the trial, Post Office made clear its position as
to the proper scope and limits of the Common Issues
trial. We never, ever altered that position, and
nothing that we did or said can fairly be said to have
amounted to some kind of waiver or enlargement of the
definition of those issues.
Secondly, the fact that Post Office was reluctant to
allow irrelevant evidence to go unchallenged cannot make
that evidence suddenly relevant.
The other side's proposition, if they do make
a proposition to that effect, is simply a non sequitur.
The conclusions that your Lordship reached either were
or were not necessary to decide the matters that were
before you.
Now, I would like to turn next to the judgment.
There are really seven matters in respect of which we
submit that your Lordship reached premature concluded
findings. If I can just give you the seven items first
and then I am going to deal with each of them through
the paragraphs in the judgment. I am sorry, it is
a tedious process, but it is the only way to do this
exercise.
So the seven matters are as follows: first of all,
Subpostmasters' experiences of using Horizon and its
functionality, including Subpostmasters' ability to
identify the causes of shortfalls; secondly,
Post Office's alleged knowledge of problems with
Horizon; thirdly, the quality and operation of the
helpline, in particular as an adjunct to the accounting
system; fourthly, the quality of Post Office's
investigations into shortfalls; fifthly, demands for
payment and threats of legal action allegedly made by
Post Office; sixthly, the circumstances in which
Subpostmasters' contracts were suspended or terminated;
and seventhly, the adequacy of training.
We need, as I indicated, to look at the relevant
paragraphs.
So taking the first item, Subpostmasters'
experiences of using Horizon and its functionality,
including Subpostmasters' ability to identify the causes
of shortfalls, so the way I propose to do this, and
I hope it accords with what would be convenient for
your Lordship, is if you have a copy of the judgment
handy --
MR JUSTICE FRASER: I do.
LORD GRABINER: -- then I will just go to the paragraphs,
and we have given full notice of all the matters that we
rely upon. So the first paragraph I want to go to is
172 {B7/29/64}.
MR JUSTICE FRASER: Is this numbered the first of your seven
categories?
LORD GRABINER: Yes.
MR JUSTICE FRASER: Yes, all right.
LORD GRABINER: So when I have just gone to the relevant
paragraphs, I am going to make a very brief submission,
invariably I will make a brief submission in relation to
the bit that we just emphasised.
MR JUSTICE FRASER: Yes.
LORD GRABINER: So in 172, the emphasised passage is:
"Mrs Stubbs is a careful and honest witness. She
did her best at the time to try and work out what was
happening, the reasons for it, and also notified the
helpline on numerous occasions, as well as keeping her
own separate paper records in an attempt, or more
accurately numerous and concerted attempts, to work out
precisely how these shortfalls could have arisen. None
of the Post Office personnel involved at the time with
Mrs Stubbs, who attempted to obtain some input or
explanation from Fujitsu were called as witnesses."
Then several lines below there:
"Mrs Stubbs ran the branch perfectly satisfactorily
for many years."
And a couple of lines below that:
"On the evidence before me in this trial, and upon
my assessment of Mrs Stubbs as a witness, I consider
that she is reliable, thorough and honest."
And honest."
For completeness, there you say:
"I accept her account of contract formation and the
fact that she never received, nor did she have any
knowledge of, the SPMC."
Your Lordship has come to a clear, concluded view in
that paragraph as to her evidence and credibility.
Those views went far beyond what was necessary to reach
a conclusion about the contractual documents she
received. If, at a subsequent trial, her credibility is
challenged, the claimants will obviously rely upon that
passage in your Lordship's judgment as showing that
your Lordship should and indeed would be bound to accept
the correctness of her evidence.
So in other words, it would have been perfectly
possible for your Lordship to have accepted her evidence
about the contract formation, but without making all the
observations that you have made, particularly in
relation to helpline and the satisfactory running of the
branch that she had undertaken over the period of the
contract, ie post-contractually.
MR JUSTICE FRASER: You have rather missed out the two
sentences in the middle of that paragraph that say:
"I make it quite clear that I do not speculate on
any of that, nor is it possible to know what the outcome
of the trial of the Horizon Issues will be later this
year."
LORD GRABINER: No, you do say that, and I am going to come
to that point towards the end of these submissions --
MR JUSTICE FRASER: I understand.
LORD GRABINER: -- because your Lordship does make that kind
of point, not always, but fairly regularly, during the
judgment.
MR JUSTICE FRASER: Yes, all right.
LORD GRABINER: I am going to say something about that, if
I may, at the appropriate moment.
Then 217, paragraph 217, this deals with the
position of Mr Sabir. And there are, just for context
your Lordship will glance down -- you must be, I am
afraid, very familiar with this judgment, of course --
but if you go down to 217, subparagraph 8, you say:
"Post Office's case is that Mr Sabir falsified his
accounts and misstated his stock by completing the
branch trading statements from the period he discovered
the mistake."
Then in 218:
"Mr Sabir's account is substantiated by the audit
report itself, prepared by the auditors two days after
the audit."
And then on to 219, five or six line down:
"Any findings as to specific breach or breaches must
await a later trial. I do, however, take this evidence
into account in reaching my conclusions on the category
two facts that are disputed by the Post Office. I deal
with that at the end of my review."
Now, an important issue in the Horizon trial is how
easy or difficult it was for Subpostmasters to work out
from Horizon what the accounting position was. In this
passage, your Lordship has reached firm conclusions on
the facts and also on the credibility of Mr Sabir.
Your Lordship also says here that you are not making any
findings on breach. As I say, I will come back to that
and similar sentences in the course of these
submissions.
302, paragraph 302. This is in relation to
Mrs Stockdale, and it is the third sentence.
"There were no explanations for these [this is
experience of running the branch, not a happy one,
unexplained shortfalls and so on] and there was no way
available for her to get to the bottom of them either."
At 309, a few paragraphs on:
"Mrs Stockdale was obviously in an extremely
difficult position. She did not know what product had
caused her loss."
And at 310:
"She felt that she had no choice but to agree.
I find that on the options presented to her at the time,
she indeed had no choice but to agree."
And in 311:
"Mrs Stockdale then took very sensible and extremely
thorough measures ..."
Then your Lordship describes the measures, and then
several lines down in the same paragraph:
"She explained that she spent hours with the
records, including her own paper records, trying to
investigate. These shortfalls simply kept occurring and
she could not work out why."
In these passages, your Lordship reached conclusions
as to how easy or difficult it was for Subpostmasters to
use Horizon to get to the bottom of shortfalls, and
alongside that, your Lordship made broad findings as to
the claimant witnesses' credibility. So again, in my
respectful submission, this has nothing to do with
contract formation issues which that trial should have
been concerned with, but everything to do with matters
yet to be the subject of future trials.
In 824 --
MR JUSTICE FRASER: Before we go to 824, though,
Mrs Stockdale was also accused of a criminal offence in
her cross-examination.
LORD GRABINER: Right.
MR JUSTICE FRASER: There was a dispute of fact about what
was said to her at an interview before she was
appointed. So in terms of resolving the dispute of fact
at the interview, do you say I should have made
a finding as to her -- or I was entitled to make
a finding as to her credit, but in doing so, shouldn't
have taken account of anything to do with her departure
from the Post Office?
LORD GRABINER: I do say that, yes.
MR JUSTICE FRASER: You do?
LORD GRABINER: Yes.
MR JUSTICE FRASER: Thank you very much.
LORD GRABINER: Then in 824, this is in relation to
Mr Bates.
MR JUSTICE FRASER: Yes.
LORD GRABINER: The last couple of sentences:
"He realised that the information for him to do so
was simply not available to him or to any Subpostmaster
in a branch. The Horizon system did not allow him to do
this."
Now, that is a conclusion of fact, but it is wholly
irrelevant for the purposes of the Common Issues, in my
submission.
That is all of piece with your Lordship's findings
in paragraphs 819 and 852. If we go to 819:
"The whole issue with the information available to
an SPM on Horizon is that they could not identify
discrepancies or shortfalls or understand the basis on
which transaction corrections [TCs] with which they
disagreed were issued."
Then in 852, roughly in the middle of the
paragraph --
MR JUSTICE FRASER: 852?
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: Just give me a second. Yes.
LORD GRABINER: "Unexplained shortfalls or discrepancies
became apparent at the end of a branch trading period.
It was simply not possible, on the information available
to an SPM, on the Horizon system, for them to identify
the day, product, and still less the time of day that
was responsible for this."
In my submission, that is classically a Horizon
Issue, but your Lordship has reached, on that point,
a concluded view.
Paragraph 569, that is the famous paragraph. It has
got lots of factual matrix points annexed to it.
Your Lordship will recall that paragraph. It is the
paragraph with lots of subparagraphs.
MR JUSTICE FRASER: Where I go through category 2 and
category 3 and make findings as to the factual matrix,
yes.
LORD GRABINER: And there are just a few of them that I want
to make reference to.
MR JUSTICE FRASER: I think it might break a record as being
the longest paragraph in the judgment, which is probably
not a particularly good record to break.
LORD GRABINER: You will be relieved to know that I am not
going to go through all the paragraphs.
MR JUSTICE FRASER: It runs on for a number of pages.
LORD GRABINER: Yes. The ones that I want to pick on are
51, and your Lordship says:
"The introduction of Horizon limited the claimants'
ability to investigate apparent shortfalls, particularly
as to the underlying cause thereof. Both this and 50
immediately preceding it are obvious on the evidence and
could readily have been agreed. It can't sensibly be
argued to the contrary, in my judgment."
So that is an Horizon conclusion, paragraph 61:
"The Post Office has, on occasion, detected that
Horizon generated errors, caused the appearance of
shortfalls and errors which the claimants themselves had
not been able to identify as the cause of those apparent
shortfalls."
Now, these are all matters for the Horizon trial.
These findings are made in general and unqualified
terms. They have a wide-ranging impact and are not
realistically going to be challengeable in later trials
in the light of further evidence and disclosure, because
what will be said when there is a debate about this in
a future trial, as inevitably there will be, is that the
other side will point to this analysis of your Lordship
and it is going to be impossible, in my respectful
submission, and unrealistic to expect your Lordship to
depart from those conclusions.
In 54 to 57, which I think you aggregate, the
passage there:
"I cannot make detailed findings about Fujitsu's
role on the basis of the evidence before me. However,
it is clear that Fujitsu were able to obtain greater
information about a particular branch's transactions
than either the Post Office or the Subpostmaster."
Then you say:
"How this was done and whether it included providing
a data transfer service between the central data centres
and clients of Post Office must await the Horizon
trial."
Notwithstanding that final caveat, this passage also
contains a clear finding on a Horizon Issue. The same
is true of the passage at 569, factual matrix point 59.
MR JUSTICE FRASER: Which Horizon Issue does that make
a finding on?
LORD GRABINER: Which one, my Lord, 59?
MR JUSTICE FRASER: No, before that, I think you said 54 to
57 makes a clear finding on a Horizon Issue.
LORD GRABINER: Yes.
MR JUSTICE FRASER: Which Horizon Issue? Maybe we can come
back to it if you want to.
LORD GRABINER: I think the point being here that the
information that should have been provided by the
Post Office or should have been available to the
Subpostmaster was not available, but it was apparently
available to Fujitsu, so it is a breach issue.
MR JUSTICE FRASER: Understood.
LORD GRABINER: Then matrix point 59, your Lordship says:
"I find in some instances there was discussion
internally at the Post Office about the altering of
branch transaction data directly and also of the
Post Office and of Fujitsu carrying out changes to
Horizon and/or transaction data which could affect
branch accounts. Mrs Van Den Bogerd accepted this could
be done. Further detailed findings on this will be
dealt with in a later trial."
So the implication from that is that you have made
some findings there and that more detailed ones would,
in fact, be dealt at the later trial, but for some
reason, your Lordship thought it was appropriate in that
trial to make those conclusions which I have just
identified.
Can I go to the next heading, which is "Post
Office's alleged knowledge of problems with Horizon".
MR JUSTICE FRASER: Yes.
LORD GRABINER: This is starting with paragraph 541. There
your Lordship says:
"Secondly, a number of contemporaneous documents
internal to the Post Office show that there has been, at
least to some degree, an awareness of Horizon problems
within the Post Office itself over a number of years."
Then in 543, in about the second or third lines, you
say:
"Behind the scenes, there were at least a number of
people within the Post Office who realised that there
were difficulties with the Horizon system."
Then in paragraph 1115, so you have to jump forward,
your Lordship says:
"Horizon was introduced in 2000 and from then
onwards, unexplained discrepancies and losses began to
be reported by SPMs. Internal documents obtained in
this litigation show that some personnel within the
Post Office believed at the time that at least some of
these were caused by Horizon."
And then the passages that I have been emphasising
in those paragraphs express a view on Post Office's
internal knowledge of the alleged problems with Horizon.
Now, those findings are going to be relied upon by
the other side in support of their allegations that
there was here deliberate concealment and deceit on the
part of Post Office.
Now, those are matters which are to be dealt with in
later trials. They are very, very important findings
and holdings and they are not provisional, they are
concluded views. And they are undoubtedly matters which
will going to arise in the later trials.
MR JUSTICE FRASER: But on that point, because it is,
I think, notable that you say those findings are going
to be relied upon to found deceit, if one goes back to
the extracts from the documents and look at 542, which
is where the reasons that underpin what I have said in
541 are identified, and have a look at 541.
At 542, for example, just looking at the first
extract of the contemporaneous document which is an
email:
"Both Frank Manning and Sue Lock work for
Post Office."
Ignore the underlining because that is my
underlining, but if you look over the page, this is in
relation to Mrs Stubbs, who was having certain problems
with Horizon, the phrase, "It is Horizon related", which
the sender of that email chose to put in bold. It then
goes on to say:
"The problems have only arisen since install and the
postmistress is now barking, and rightly so in my view.
Help, please."
Do you say that the conclusion of what that document
shows, which I have summarised in 543, is something that
I shouldn't have done?
LORD GRABINER: Definitely.
MR JUSTICE FRASER: So I shouldn't have given the summary of
the document.
LORD GRABINER: Definitely. Whether you did or not, you
certainly should not have expressed a view about it,
knowing that this will be a key issue at a future trial.
MR JUSTICE FRASER: Thank you very much. What about the
extract of the document itself which was relied on both
in evidence and in opening?
LORD GRABINER: I mean, I have no particular view about
that. What I am much more concerned about is what you
have said in the judgment and whether, through the eyes
of a fair-minded observer, it can be said that it is
possible for your Lordship to keep an open mind.
MR JUSTICE FRASER: Understood. Thank you very much.
LORD GRABINER: Could I go next to helpline.
MR JUSTICE FRASER: Yes.
LORD GRABINER: So paragraph 248, and this deals with
Mr Abdulla to whom we had a reference to a little
earlier:
"Turning to Mr Abdulla's operation of the branch,
I have already identified his account of how even
disputed transaction corrections had to be dealt with at
some stage prior to the next branch trading period by
clicking the 'accept now' button. He would contact
helpline six or seven times a month and was shocked at
the inadequate support."
Just below there, or next:
"He would often experience apparent shortfalls on
the days when he would perform balances, but could
rarely get through to the helplines on these occasions.
He thought the advisers were ill-informed and would
often give the impression of reading off a script."
In 249:
"He could not resolve these through the helpline."
So here your Lordship was accepting Mr Abdulla's
evidence both as to his subjective impression of the
service that he received and as to the points of fact,
such as whether he could get through to the helpline.
And I am sorry that I am beginning to sound like
a broken record, but these were not matters for the
first trial and, specifically, they are matters for
subsequent trials.
Now, these, 303:
"These shortfalls continued. On 15 October 2014,
there were unexplained shortfalls of over £3,500. When
she [and I think this is Mrs Stockdale] phoned the
helpline, she was told this was only £3,000 and it is
a drop in the ocean compared to some people's problems.
This contradicted an earlier statement from the helpline
when she had been told that she was the only SPM
experiencing these problems, which just made her feel
inadequate. I will track this particular shortfall
through in terms of her evidence."
And your Lordship does that, and at the end of that
paragraph or further on in it, your Lordship says:
"I accept this evidence by Mrs Stockdale. There can
be no doubt that the shortfall was clearly in dispute,
even on the Post Office's understanding of how disputes
were to be raised."
MR JUSTICE FRASER: I am sorry, I have lost where you are.
LORD GRABINER: I am sorry, it is the end of paragraph 303.
Yes.
MR JUSTICE FRASER: Yes, thank you.
LORD GRABINER: "I accept that evidence."
MR JUSTICE FRASER: Yes, thank you.
LORD GRABINER: So in my submission, this is a good example
of your Lordship undertaking a detailed analysis of the
evidence, in this case, that of Mrs Stockdale, and her
evidence is expressly accepted by your Lordship as
accurate. This was not a matter for determination in
the first trial and when this issue does arise at
a future trial, a fair-minded observer of this story
would say that your Lordship had reached a concluded
view as to the accuracy and reliability of
Mrs Stockdale's testimony.
Your Lordship's concluded view about her evidence
was then reinforced in your summary of her evidence and
for that purpose, if we go forward to paragraph 328.
Your Lordship says there:
"I found Mrs Stockdale to be a careful and accurate
witness and I consider she was telling me the truth."
Then you say at the end of that paragraph:
"I'm making no findings in respect of breach,
causation or loss."
As I say, I will come back to that mantra later on
in these submissions.
And at 357, in relation to Mrs Dar, your Lordship
says:
"Her experience with the helpline was not a positive
one. She contacted them two to three times a month,
often in relation to apparent shortfalls or balances.
Most of the time, she was told to recount and if there
was still a shortfall, she had to make this good, which
means pay it herself. Once she was told how to get
around the problem by altering the stock figures to
balance, which shocked her, and she considered there was
some kind of fault within the system."
So this, in my submission, is the same point.
Your Lordship here accepted Mrs Dar's evidence on what
happened when she called the helpline, although this is
a matter yet to be addressed in a different trial.
At 556, still on the helpline, 556, my Lord, yes,
your Lordship says:
"The helpline does not seem to have operated in that
way and on the evidence before me for the issues in this
trial, the matters in dispute reported to the helpline
were not treated differently even when they were
reported. The lead claimants' evidence made it clear
that just getting through to the helpline was an
achievement in itself. When this was finally
accomplished, the experience would be variable at best
and does not seem to have come close to resolving any of
the disputes."
Then your Lordship can read the intervening
passages. Then at the end, you say that was simply not
made out on the evidence before you, that is the
position of Post Office.
This paragraph of the judgment reveals your Lordship
broadly accepting the claimants' case on the quality of
the helpline and how the disputes process functioned,
but again, these are prime issues for a resolution at
a subsequent breach trial.
In that passage, your Lordship is making no
distinction between the contractual obligation involved
in notifying a dispute via the helpline. So pausing
there, that would be entirely understandable in the
context of the contract issues or those issues, working
out or deciding what the contractual obligation was,
rather than what is, in fact, happening in that
paragraph, namely whether or not the Post Office
fulfilled its obligations, ie was it a breach of
contract, which is an entirely distinct, self-contained
issue for a later trial.
At 558, at the beginning of the paragraph:
"It is therefore the case that, on the evidence
before me, the helpline did not operate for the lead
claimants in the manner that the Post Office contended
for."
Then you say at the end of that paragraph:
"Detailed findings of fact as to this must however
wait for a later trial."
So this was a conclusory statement about what
happened when claimants called the helpline, it was not
relevant, in my submission, to any Common Issues. It
will be relevant at a future trial. And your Lordship's
use of the word "detailed" at the end of that paragraph
rather reinforces the concern. The implication from
that word is a recognition that you were making findings
of fact, albeit in outline, and that when you get to the
later trial, you are going to elaborate on those
findings in the light of the evidence in that case. But
the idea that you are going to be in a position fairly
to depart from those conclusions, in my submission, is
the gravamen of the charge.
MR JUSTICE FRASER: Is it not relevant though to the status
of a branch trading statement?
LORD GRABINER: With great respect, it isn't. The status,
the particular status of a branch trading statement,
would depend upon the facts surrounding that branch
statement. So, for example, suppose the complaint was,
"Well, I have got the branch statement, I was forced to
press the accept button, and I did so, and then when
I tried to register my complaint through the helpline,
I was unable to do so for whatever reason".
Now, the correctness or otherwise of that debate is
a breach issue. If and to the extent that there was
a failure of the helpline, operating in conjunction with
the statement, to enable that complaint to be
registered, that is a breach of contract complaint
understandably. But to investigate those matters at the
contract creation stage, in my submission, was a wrong
step.
MR JUSTICE FRASER: The Common Issues didn't only involve
contract creation, because they also involved issues of
agency.
LORD GRABINER: Yes.
MR JUSTICE FRASER: But it was factually in issue for about
three weeks of the Common Issues trial as to what
options were available to a Subpostmaster in respect of
how they would perform their branch accounts.
So, for example, if we just look back at
paragraph 558, which you have been drawing to my
attention, the meaning of the phrase in inverted commas
in the ante-penultimate line, "settled centrally", took
some time to unravel. By the time the trial ended, the
factual position was almost essentially agreed, but it
took some weeks to get there.
And so far as that point is concerned, is your
submission that it would have been necessary or
acceptable to decide what "settled centrally" meant, but
I shouldn't have then gone on to consider the mechanism
of dealing with the helpline, is that right?
LORD GRABINER: Absolutely.
MR JUSTICE FRASER: All right.
LORD GRABINER: Because by definition, by definition, by
engaging in that investigation and indeed reaching some
conclusions in relation to the functioning and operation
of the helpline, what is happening is that there is
a trespassing into later matters which are not relevant
to the immediate question.
For example, the question of the meaning of "settled
centrally" would have been a classic example of
something that needed to be determined in the
Common Issues trial. Construction questions were open
for debate, absolutely.
MR JUSTICE FRASER: Yes, but what then do you say about the
Post Office evidence that had been contained in the
Post Office's witness statements about the operation of
the helpline, because there was evidence on it from
both parties?
LORD GRABINER: Well, all I can say about that is that the
key point in this debate is the relationship between the
functioning of the helpline and the account statement --
MR JUSTICE FRASER: Right.
LORD GRABINER: -- and in what circumstances the account
statement could be relied upon or would or would not be
binding? And that is classically a contract question,
if I can put it in a very concertinaed way. But to
investigate events which are really breach events and
then to make findings about them after the event was, in
my submission, a false step.
MR JUSTICE FRASER: I understand, thank you very much.
LORD GRABINER: And it is trite law, of course, but the fact
is that what was not legitimate was to participate in
a post-contractual factual investigation, is what it
comes to. The factual investigation of that kind is
entirely distinct from matters which should have been
investigated at the Common Issues trial. The
contractual position as to the trading statement and the
helpline falls to be analysed at the time of
contracting. Classic law.
For this purpose, the factual matrix must be
examined at that point in time, but what happened here
was that there is then an investigation of, by
definition, post-contractual events and conclusions in
relation to matters such as alleged breaches of
contract, for example as to the effectiveness of the
helpline after the event to improve or clarify the
factual matrix, which is absolutely impermissible.
Now, the next topic of the seven is how good or bad
Post Office's investigations of shortfalls were, and
whether Post Office disclosed what it knew about
shortfalls to Subpostmasters.
MR JUSTICE FRASER: Can I just check, before you move on to
that. The third of your seven categories, I think we
went to 248, 303, 357, 556 and 558, is that right?
LORD GRABINER: That is exactly right.
MR JUSTICE FRASER: Now we are going on to the fourth of the
seven.
LORD GRABINER: Yes. I haven't gone back to count, but
I think it is the fourth.
MR JUSTICE FRASER: Yes.
LORD GRABINER: The first paragraph that I want to refer to
is 115.
MR JUSTICE FRASER: 115, yes.
LORD GRABINER: Your Lordship says:
"Putting entirely to one side the fact that it has
taken Post Office 15 months to finalise how it was to
resolve this matter and Mr Bates was given only 16 days
to reply."
And your Lordship says:
"Which attitude appears to me to be symptomatic of
how Post Office regularly treated at least some of its
SPMs."
That is a very strong statement, my Lord, and that
is exactly the kind of statement -- and I appreciate
that was and is your Lordship's view, but it is not
necessary for the purposes of the judgment that you were
dealing with, or that you were giving. And also, it is
obviously going to be relied upon by the other side. If
I were on the other side, I would be banging the drum on
a sentence like that. I would be accusing Post Office
of being a disgraceful bunch and, "That is already
your Lordship's view: see your judgment in the
Common Issues case", that is obvious.
MR JUSTICE FRASER: When you say, "That is already
your Lordship's view", do you mean that you are
summarising what Mr Green would be saying, relying on?
You are not telling me -- I don't assume you are
expressing that as that is a view that I, the judge,
currently hold.
LORD GRABINER: What I am submitting is that having, so to
speak, committed yourself in print on that point, a
fair-minded -- I don't care what Mr Green will say or
won't say or indeed what I think or say. It is all
irrelevant, and in a sense, what your Lordship thinks or
says is irrelevant for this purpose because it is an
objective test. The fair-minded observer will look at
this along with all the other material that we are going
through at the moment and will have to come to
a judgment as to whether your Lordship can fairly
approach the future trials given the conclusive
expression of opinion that you have given there.
MR JUSTICE FRASER: Yes.
LORD GRABINER: It is just another example. And then in
subparagraph 1 of 115, you say in the first line:
"It suggests that Mr Bates' experience was not an
isolated one."
Then we can leave over 1 and go straight to 2,
sub-2, the second sentence:
"I'm satisfied that if he had simply paid the amount
to the Post Office as demanded in the Post Office letter
of 16 July 2001, which sought as matter of some urgency
that he 'advise me of your proposals to now make good
the loss', in other words, how he would pay the
Post Office that money which was at that stage demanded,
this would not have occurred.
"3. No explanation was provided to Mr Bates as to
how the shortfall had occurred.
"5. The consistent policy, if indeed there was one,
seems to have been that the Post Office would simply
claim all such sums from the SPMs in question."
These are all findings to the effect that
Post Office's investigation was, in your Lordship's
view, inadequate and that Post Office demanded payment
without a proper basis. Now, in my respectful
submission, those findings had no place in the
Common Issues trial. They trespass into matters which
we all know fall to be determined in a later case or
cases.
165 deals with the evidence of Mrs Stubbs, and if we
go 15 or 20 lines down, maybe fewer than 20,
your Lordship says:
"It might be thought that if there were any proper
investigation which actually reported on this, it could
and should have been put to Mrs Stubbs, but if what was
put to Mrs Stubbs in this trial is said by the
Post Office to amount to such an investigation, then
it is telling. The investigation appears, on the
material deployed in this Common Issues trial, to have
consisted of nothing more than Fujitsu asserting that
there was nothing wrong with the kit. That is not, in
my judgment, an investigation under any normal
understanding or meaning of that word in society
generally."
That is really the same point that we just saw for
Mr Bates. Your Lordship is saying that Post Office's
investigation was inadequate and that Post Office
demanded payment without a proper basis. Again, in my
submission, those findings had no place in the
Common Issues trial.
In 208, and your Lordship can glance at the
paragraph for context, and there was a sort of help
issue that is identified there, this is in relation to
Mr Sabir, but your Lordship concludes in the last
sentence of 208:
"That help simply never came."
MR JUSTICE FRASER: I am sorry.
LORD GRABINER: 208.
MR JUSTICE FRASER: I am in 208.
LORD GRABINER: The last sentence. {B7/29/74}
MR JUSTICE FRASER: "This was counted against him at the
time and used as a --"
LORD GRABINER: "That help simply never came."
MR JUSTICE FRASER: That is in the middle.
LORD GRABINER: I am sorry. I don't have the whole
paragraph in front of me.
MR JUSTICE FRASER: That is in the middle.
LORD GRABINER: Very good. That is also a finding as to how
co-operative or unco-operative Post Office was in trying
to establish the cause of the shortfall. In my
submission, it is a breach question.
MR JUSTICE FRASER: Yes.
LORD GRABINER: 217, sub-2:
"Mr Sabir had no separate record and no access on
Horizon to the number of scratchcards he should have
had."
And then your Lordship says:
"He requested this information from the Post Office,
who did have it. It was not provided. He used the
helpline to notify Post Office of a problem. This is
the way that the Post Office maintained disputes should
be notified."
Then in 223:
"In my judgment, the attack on Mr Sabir's credit,
which I have identified above, fundamentally ignores the
reality. The fact that he had contacted the helpline
and sought assistance and the fact that the vital piece
of information he needed, the number of scratchcards the
system was showing that he should have, was so readily
accessible to the Post Office auditors, but never
provided to him."
So again, those are findings that Post Office did
not supply Mr Sabir with information, which he could not
obtain himself through Horizon and which could have
enabled him to establish the extent of the shortfall.
Again, those are findings on Horizon and on breach.
MR JUSTICE FRASER: I did have to make a finding on his
credit, though, did I not?
LORD GRABINER: That may be. You mean because of challenge
in relation to the contract formation?
MR JUSTICE FRASER: There were various challenges to
Mr Sabir's credit, but not least -- I think it is
a point that has been --
LORD GRABINER: I am told by Mr Cavender that we never
relied on any of this material.
MR JUSTICE FRASER: Mr Cavender -- well, the transcript
shows the way that Mr Sabir was cross-examined, but
let's not waste time on that at the moment. So that is
223.
LORD GRABINER: 557, still under the same heading, 557:
"Mrs Stockdale telephoned the helpline. She then
assumed the debt recovery letter she received meant an
investigation had been done and resolved against her.
That assumption was not correct. Mrs Stubbs had been
pressing for many years to find out the outcome of
whatever investigation was in fact performed in her
case. In both cases, the helpline had been notified by
each of these lead claimants. In neither case
[your Lordship says] could the Post Office produce and
put to each of these lead claimants or show the court
the end product of any such investigation."
So here your Lordship found that Post Office had not
conducted an investigation into Mrs Stockdale's
shortfalls and your Lordship also criticised Post Office
for not adducing what would have been inadmissible
breach of contract evidence. So if they had produced
this material at that trial, it would actually not have
been relevant to the issues in that trial, but obviously
it would have been relevant material for the purposes of
a breach trial or a trial about Horizon and its
effectiveness or otherwise.
MR JUSTICE FRASER: Mr Cavender did put to Mrs Stubbs at
least that there had been an investigation on the basis
that -- I mean, it is the same point perhaps as the one
that I explored with you earlier about Mr Sabir, but if
a positive point is put to a witness, for example, that
an investigation has happened, do you say I should weigh
that up in respect of the credit of the witness so far
as contract formation is concerned but then stop there,
effectively?
LORD GRABINER: Yes, because it would have been ex hypothesi
cross-examination on irrelevant material. I mean,
I think what is revealed by just our exchanges here this
morning, my Lord, is the absolute difficulty of keeping
a clear bright line between the matters which were the
subject of that trial, bearing in mind the fact that
under the case management arrangement, there were going
to be future trials where these matters would be
investigated. It is a very -- it is a difficult task,
I absolutely respect that and I accept that, but we do
respectfully submit that you went over the line.
MR JUSTICE FRASER: I understand.
LORD GRABINER: Mr Cavender draws to my attention the
closing transcript on {Day 14/46}.
MR JUSTICE FRASER: Do you want me to pull that up on the
screen?
LORD GRABINER: I can just read it into the transcript.
Your Lordship's question was:
"So far as the claimants' evidence is concerned,
therefore, you say treat it all with caution for all the
reasons that you have gone through, but you are inviting
me not to make any findings on their credibility.
"MR CAVENDER: Indeed.
"MR JUSTICE FRASER: Any adverse findings on their
credibility, is that right?
"MR CAVENDER: Yes, because to do so you would have
to make findings as to the accounting system, to the
TCs, what happened in fact, and you haven't had full
evidence on that by any means."
Then on the following page of the transcript,
{Day 14/51}, line 12, Mr Green:
"I'm sorry to interrupt, but I have let this run
since {Day14/38:14}, what my learned friend is saying.
He said someone in his position might say Mr Abdulla
lied. Well, that is exactly what he does say at
paragraph 592 of his closing submissions. So I don't
understand --"
Then your Lordship interrupted and said:
"MR JUSTICE FRASER: All right.
"MR GREEN: -- where he is on it.
"MR CAVENDER: But I don't ask for findings on it.
"MR JUSTICE FRASER: Mr Green, as a rule, I am not
saying you can't make these points, but you might want
to store them up.
"MR GREEN: I am grateful."
MR JUSTICE FRASER: The position on finding so far as credit
were concerned, I gave the Post Office an opportunity to
consider their position on that after the oral
submissions were over, because I had difficulty
following it. And there was a written explanation
provided by the Post Office which explained to me what
the Post Office said I should do in terms of findings as
to credit, because as the exchange that you have just
read out demonstrates, on the one hand, the closing
submissions accuse some of the lead claimants of lying,
but orally, Mr Cavender said, "Don't make findings on
credit". I am sure the dichotomy in those two positions
needed to be resolved.
So I~think the correct place to start or finish in
terms of findings as to credit is probably what the
Post Office said in their written submissions after the
hearing.
LORD GRABINER: I --
MR JUSTICE FRASER: I understand your submission.
LORD GRABINER: What I would respectfully submit is that
bearing in mind the fact that there was yet to be
a breach trial --
MR JUSTICE FRASER: I understand.
LORD GRABINER: -- enormous care was required --
MR JUSTICE FRASER: I understand.
LORD GRABINER: -- in order to ensure that the concerns that
we are now expressing would not arise.
MR JUSTICE FRASER: I entirely understand.
LORD GRABINER: Now, my Lord, I don't know if that is a good
moment to break? I could, because I am just going to
a new topic.
MR JUSTICE FRASER: If you have finished number four of your
seven ...
LORD GRABINER: Would you bear with me a moment.
MR JUSTICE FRASER: The last paragraph before I distracted
you I think was 557.
LORD GRABINER: You did not distract me. Yes, that is
convenient. That would be a convenient moment. I have
got quite a lot still to get through, but I will go as
fast as I can.
MR JUSTICE FRASER: Understood. Shall we say five minutes?
LORD GRABINER: My Lord, yes, I am grateful.
MR JUSTICE FRASER: We will have a five minute break. I am
going to see if I can turn the temperature down a bit.
It seems to be quite hot. I don't know if I am alone.
LORD GRABINER: You are quite right, it is.
MR JUSTICE FRASER: I will see if I can do something about
that. Five minutes.
(11.50 am)
(Short break)
(11.55 am)
LORD GRABINER: My Lord, there just one point from this
morning. Your Lordship wanted to know which Horizon
Issues. This was in the context of my referring to
paragraph 569 --
MR JUSTICE FRASER: Yes.
LORD GRABINER: -- and those points 54 to 57.
MR JUSTICE FRASER: Yes.
LORD GRABINER: And the Horizon Issues referred to were
issues 7 to 9 --
MR JUSTICE FRASER: Thank you very much.
LORD GRABINER: -- which are in B7/14/4.
MR JUSTICE FRASER: Thank you very much.
LORD GRABINER: Turning then to the next topic, and I am
going to try to speed up if I may, because there is
going to be a time issue.
So the next topic is whether Post Office sent
unjustified demands for payment and/or threats of legal
action to SPMs. Paragraph 222:
"There can be no excuse, in my judgment, for an
entity such as Post Office to misstate in such clearly
express terms in letters that threaten legal action and
the extent of the contractual obligation upon an SPM for
losses. The only reason for doing so in my judgment
must have been to lead recipients to believe that they
had absolutely no option but to pay the sums demanded.
It is oppressive behaviour."
In 327, towards the end of it:
"The documents available in this litigation show
that this simply was not true and she had expressly done
both of those things."
This is in relation to Mrs Stockdale. At 462, after
a few lines:
"This conclusion means that the Post Office fraud
prevention and debt recovery procedures will be used
against SPMs in this position unless an SPM can show
that the shortfall or discrepancy was not their fault."
Then your Lordship says:
"This judgment does not contain findings on breach,
loss or causation."
So in the same vein, your Lordship made a number of
findings in your section of the factual matrix at
paragraph 569, which go to show how transaction
corrections were treated. So for example, factual
matrix point 35:
"However, even amounts that were disputed in this
way were treated by Post Office as debts owed by the
SPM."
And factual matrix point 40:
"The defendant sought recovery from the claimants
for apparent shortfalls, and I would add also on the
evidence that the Post Office did this regardless of
whether disputes had been reported to the helpline or
not."
And then factual matrix point 42:
"The Post Office required claimants to accept
changes to records of branch transactions unless the
claimant was effectively able to prove that the
transaction correction was not correct."
And factual matrix point 43:
"The Post Office did sometimes issue transaction
corrections after the end of the branch trading period
in which the transaction had taken place."
So, in my submission, none of this was relevant
matrix for the Common Issues trial.
Then at 7231:
"Even though Post Office's own case on the relevant
provision in the SPMC [that is one of the contracts]
dealing with liability for losses requires negligence or
fault on the part of an SPMC, this was routinely and
comprehensively ignored by Post Office, who sent letters
of demand for disputed sums in express terms as though
SPM had strict liability for losses. These letters
entirely misstate the legal basis of SPMs' liability
even where they had been appointed under the SPMC."
723, subparagraph 4:
"The approach of the Post Office is to brook no
dissent. It will adopt whatever measures are necessary
to achieve this."
And then after the reference to section 15,
clause 19 of the SPMC, your Lordship says:
"Other parts of section 15 deals with the
requirement for caution, but I find it somewhat unusual
and potentially oppressive that the Post Office should
seek to use the Official Secrets Acts in this way.
I don't see how in a routine case these Acts could
possibly apply in the way suggested by a Post Office in
this contract."
So again, in my submission, all of this was
irrelevant to the Common Issues trial.
The next topic is whether Post Office acted properly
in suspending and/or terminating SPMs' contract. The
relevant paragraph in the judgment is paragraph 20
{B7/29/8}. Perhaps your Lordship would just look at
this to remind your Lordship of it for context. This is
all about termination, sometimes abrupt termination, and
you are looking at Mr Bates' position and Mrs Stubbs'
position.
Then, in my submission, this again shows
your Lordship's hand in a concluded way. The reasonable
onlooker would think that your Lordship's mind is at
least or may be closed as to the proprietary of
Post Office's actions in effecting these suspension and
terminations. Again, this is wholly irrelevant to the
Common Issues.
Paragraph 263, {B7/29/90} just for context, this is
in relation to the letter sent to Mr Abdulla dismissing
his internal appeal. Your Lordship will recall all of
this, and then 263 sets out the letter. 264,
your Lordship says:
"It's not clear if 'my investigation' included any
further information from or investigation of the
situation regarding Camelot either by Mrs Ridge or
Mr Mylchreest. Given the timescale, this appears
unlikely. Certainly no documents were produced in this
trial that suggested it was."
And so on. If your Lordship would look at the rest
of that paragraph and 402 for context. Then after the
reference to the statement and the appeals process in
the rehearing, there is a reference to Mrs Ridge, and
then about halfway through that paragraph:
"It is more than an academic nicety. Terminating
without notice is a severe step. A right of appeal was
supposed to be present under the SPMC. The Post
Office's own witnesses do not know what that appeal
consisted of and what the test was. This is deeply
unsatisfactory."
403:
"I do not know why risk to the Post Office
reputation should be a relevant factor in such an
appeal, which is what I find Mr Breeden's evidence to
consist of, or why SPM's entitlement to be heard on
appeal would differ from case to case."
Further down:
"Unjustified suspension ought to be a factor in
favour of an appeal succeeding on any sensible view."
At the end of that paragraph:
"The reputation of the Post Office would best be
served by appeals that were justified, succeeding, and
those that were not, failing, should not have formed any
part of the criteria."
479 {B7/29/147} a long way into it:
"Given the odd combination of various items all for
£1,092 - which she accepted 'was a bit odd' - this
information would evidently have been very useful."
Then a couple of lines on:
"I found he was giving her an account concerning
£1,092 which she would have been more willing to
consider was truthful had she had the Excel spreadsheet
at the interview."
And so on. Your Lordship can read to the end of
that paragraph:
480 {B7/29/148}:
"The hearing process in respect of Mr Abdulla's
suspension and eventual termination therefore proceeded
with incomplete information being provided to the person
tasked with conducting the hearing, making this
important decision, and still less information being
given to Mr Abdulla by the Post Office."
Towards the end of that paragraph:
"I make no findings on any matters connected with
breach, causation or loss."
All of that consists of criticisms of Post Office's
process for determining whether or not to suspend or
terminate a postmaster. They go directly to allegations
of breach of contract and have nothing whatever to do
with the contractual matters or the Common Issues --
I am always concertinaing into contract matters, but
your Lordship knows what I mean by that -- which were
the subject of that trial.
In 514 {B7/29/155}:
"Mr Carpenter was also responsible for the decision
to suspend Mrs Stockdale. Because this happened after
the litigation had commenced, I was most interested in
the exact sequence."
Then your Lordship goes through a good deal, or you
recite a good deal, of extract from the transcript, and
then after going through summarising and setting out the
transcript at 515, your Lordship says:
"The following pertinent points arise from this
evidence, which I found of considerable interest."
And then you set out your conclusions from that
evidence, and at paragraph 5 underneath as part of 515:
"Mr Carpenter wasn't 100% sure that he did not know
Mrs Stockdale was a claimant when he recommended her
suspension, even though on his evidence he found out on
the day. That does not seem to have had any effect on
his recommendation to suspend at all."
In 516, at the end of the paragraph:
"Also expressly stated to her factually untrue
statements, namely she had not contacted the NBSC or
asked Post Office for assistance. I find that she had."
517:
"It must be understood with crystal clarity."
I think your Lordship will recall this paragraph.
And then a few lines down:
"However, even putting it at its best for the
Post Office, such conduct towards Mrs Stockdale during
this early stage of the litigation could potentially be
construed as threatening, oppressive and potentially
discouraging to other potential claimants to become
involved in the litigation, whether by accident or
design. I can think of no reason why such an approach
was taken unilaterally by Post Office in such a way
without the Post Office's solicitors giving advance
notice to her solicitors so a less confrontational and
aggressive path was adopted. However, even once it was
done and she that was suspended Post Office continued to
act in a highly regrettable fashion."
519, a few lines down:
"Post Office put itself in the position of giving
itself the appearance that this behaviour towards her
was directly influenced by her having issued
proceedings."
So that was a response to the fact that she had
commenced proceedings against her, appears to be
your Lordship's view.
Now, as to those passages your Lordship said that
these points were of considerable interest, but, in my
submission, they were obviously not relevant to the
Common Issues, not least because they concern events
post-dating the commencement of the litigation, which
your Lordship very fairly points out. A fair reading of
the analysis is that your Lordship was criticising
Post Office for its suspension decision-making, which is
a serious criticism of systems adopted by the
Post Office in its dealings with Subpostmasters.
This also contains findings as to the threats and
the hostile statements that the Post Office allegedly
made. These points bear on the breach issues which are
to be the subject of future trials.
Then in 723, sub-2, there is a discussion about
legal representation in the Post Office interview
process in connection with a suspension mechanism, and
then your Lordship says:
"Regardless of whether this is justified or not
[ie the fact that you can't have representation], the
specific grounds and proper particulars of why they face
potential termination are not even clearly identified in
advance to the SPM in question. Additionally,
information directly relevant to the grounds or at least
what the Post Office is concerned about, in the absence
of properly identified grounds, is not provided to the
SPM either, or at least not in the case of lead
claimants who face such procedures.
"Mr Abdulla tried at his interview to explain the
situation regarding TCs and of the lottery. He was
disbelieved. The documents available in the trial show
that whatever else he had done, he was telling the truth
about the existence of these TCs. Neither he nor the
interviewer had this information available to him at the
time."
Again, these are criticisms of Post Office's
termination procedure. They are irrelevant, in my
submission, to the Common Issues. They might be very
relevant indeed in future trials.
The next topic is training, paragraph 104, and there
is just one emphasised passage in that paragraph. This
is in relation to Mr Bates:
"There was no explanation for how to identify the
cause of any shortfalls or discrepancies or how to
dispute them."
105 is part of that, but there is no specific piece
that I want to make reference to. But again, in my
submission, this is all irrelevant post-contractual
evidence.
Your Lordship made similar findings or comments in
relation to Mrs Stubbs in paragraph 142, where
your Lordship says in the middle of the paragraph:
"The training did include balancing, but did not
include shortfalls, how to get to the root cause of them
or how they should be disputed."
Then looking at Mr Sabir, this is paragraph 193:
"Thereafter, Mr Sabir accepted the appointment and
received training."
Then a long way into that paragraph:
"Mr Sabir's evidence on this, which I accept,
matches the other evidence from other lead claimants
about in branch training. It is characterised by the
trainers observing rather than training and also by
early departures from the branch itself by the trainers.
I do, however, make these comments without making
findings on anything to do with breach, causation or
loss."
And I will come back to that mantra, if I may.
MR JUSTICE FRASER: Is that at the end of 193? Is that the
part that you have just read?
LORD GRABINER: Yes, exactly right. Yes, precisely.
And:
"Mrs Stockdale [at 297] was accepted as an SPM and
had some training. She attended the classroom training
with her son. She did not have all the training she was
told she would receive."
And then there is some explanation of that factual
context.
So in that paragraph, Mrs Stockdale's evidence is
summarised about her allegations of deficiencies in the
training process, and the third sentence is at least
a partial acceptance of her evidence on a topic that was
not before the court in that trial.
Then for Mr Abdulla, paragraph 246, the second
sentence or third sentence:
"This did not include balancing in any detail, if at
all."
This is in relation to the training he was supposed
to have got.
Then in 247, I think this is in relation to
Mr Sabir, the last couple of sentences:
"This included conducting a balance. He was told
that he had to make good any losses and he was not told
how to investigate or resolve discrepancies or apparent
shortfalls. He was simply told to contact the
helpline."
And finally Mrs Dar:
"Mrs Dar considered [on the fourth or fifth line]
the training was inadequate."
MR JUSTICE FRASER: Which paragraph?
LORD GRABINER: Paragraph 346. So that is in about the sort
of third or fourth line:
"Mrs Dar considered the training inadequate."
And at the end of the paragraph:
"Mrs Guthrie spent some of her time trying to fix
problems with Horizon rather than doing the induction
training that Mrs Dar was expecting."
So here your Lordship was accepting Mrs Dar's
evidence at face value both as to what she believed
about the quality of the training and as to what
happened, notwithstanding the fact that the training
issue is for a later trial.
In paragraph 352, I think we are still with
Mrs Guthrie and Mrs Dar, and at the end of that
paragraph, that is 352:
"Mrs Guthrie did not attend on Mrs Dar's first
balance day as she was supposed to. Mrs Guthrie also
said she would come back to give further training and
support. In fact she did not, at least not until some
months later on 15 July 2015, when she came back to
carry out an audit."
Paragraph 569, factual matrix point 70:
"On the evidence of six lead claimants, even when
further training was specifically questioned, it was not
provided."
437:
"Nowhere in the training or the interview or
anywhere else is there any recognition of how to deal
with a shortage, discrepancy of disputed TC of any order
of magnitude, still less those of the six lead
claimants."
Then this paragraph expresses, in my submission,
a concluded view on the content and quality of the
training.
955:
"One feature which seemed to be wholly absent from
the training courses run by the Post Office for the lead
claimants was any sort of assessment or test of
competence at the end of the training."
Then further down the paragraph:
"This situation is in no one's interest. In my
judgment, I would go further and say it is contrary to
business logic. Although there was some in-branch
training, the approach to that did not appear to be
uniform either. It can be seen [a couple of lines down]
that inadequate training is not likely to be readily
discernible to the Post Office."
MR JUSTICE FRASER: That rather skips over the introductory
sentence to 954, though, doesn't it:
"I have certain non-binding observations on the
evidence given before me by both sides in terms of
training."
LORD GRABINER: Your Lordship's point is the non-binding
point.
MR JUSTICE FRASER: And that it was evidence from both
sides.
LORD GRABINER: Okay.
MR JUSTICE FRASER: But I think, if I understand your
submissions correctly, I should have resisted the
temptation to do that.
LORD GRABINER: Precisely.
MR JUSTICE FRASER: Right. Thank you very much.
LORD GRABINER: So the paragraphs that I have been drawing
to your Lordship's attention in this context reveal, in
my submission, concluded views and observations on
matters arising for determination in subsequent trials.
We have done a separate exercise. Actually, I have done
this separate exercise, but I hope it is nonetheless
accurate. So these paragraphs appear in the course of
very extensive recitation by your Lordship and analysis
of the evidence of each of the lead claimants.
So it is interesting. For the record, Mr Bates,
your Lordship deals with his evidence between
paragraphs 69 and 124, 55 paragraphs. Mrs Stubbs,
paragraphs 125 to 172, 47 paragraphs. Mr Sabir,
paragraphs 173 to 223, 50 paragraphs, Mr Abdulla,
paragraphs 224 to 274, 50 paragraphs. Mrs Stockdale,
paragraphs 275 to 328, 53 paragraphs. Mrs Dar,
paragraphs 329 to 364, 35 paragraphs.
The point I want to make is that the individual
paragraphs I have been drawing to your Lordship's
attention were not observations by the way. In each
case, they came out of a very, very detailed scrutiny of
the witnesses' testimony. And it is obvious that in
a future case when these points are litigated, breach,
Horizon and so on, there is at least a real possibility
that your Lordship will simply not be able to revisit
your own conclusions with an open mind.
The other side will say you could not have done
a more thorough analysis of the evidence that you
received from each of these witnesses, and when you were
expressing concluded views about them, they were what
they are; concluded views which are now immovable
regardless of the evidence which might subsequently be
given in one or other of those later trials.
So, in my submission, the fair-minded observer of
this story would perceive that as a real and concerning
risk.
If I can turn away now from the individual seven
items that I have been addressing. So in addition to
all the points I have been making, there is a separate
category of examples of what we call negative findings
or comments as to Post Office's integrity and behaviour.
And the passages to which I now refer, taken together
with the matters that I have already dealt with,
reinforce our concern that your Lordship's mind is
closed against Post Office.
That concern, we submit, would be shared by
a reasonable observer possessed of the facts.
MR JUSTICE FRASER: I think you mean gives the appearance of
being closed.
LORD GRABINER: Yes.
MR JUSTICE FRASER: Because if it were your case that it
were closed, it would be an application based on actual,
not apparent, bias.
LORD GRABINER: I apologise for having misspoken.
MR JUSTICE FRASER: It is a question of my being clear.
LORD GRABINER: No, you should be absolutely clear, there is
no such allegation being made.
So under the particular headings that we have
devised, first of all, Post Office's alleged
mistreatment of Subpostmasters, or indeed mistresses.
Paragraph 117:
"The full subsequent trial of Mr Bates' claim will
show what if any consideration was given at the
Post Office internally not only to this shortfall but
others, if there were others, in the period December
2000 to March 2002. If the Post Office did in reality
do what Mr Bates suggested they did, namely bury their
heads in the hand, press on regardless and press
numerous SPMs for shortfalls and discrepancies caused by
the Horizon system, that would be behaviour of an
extraordinary kind, and given the criminal implications
for some SPMs may be extraordinarily serious."
Then you say at the end of that paragraph:
"I make no findings either way at this stage of the
proceedings in this judgment."
Here your Lordship specifically does not make any
finding, but you were prepared to speculate as to the
possibility of extraordinarily serious misbehaviour on
the part of Post Office.
MR JUSTICE FRASER: Lord Grabiner, that is the claimants'
case, and you have skipped over the passage that says:
"On the other hand, his shortfall may, upon
investigation ..."
Et cetera, et cetera.
LORD GRABINER: Fine. When you say skipped over, I am just
trying to do this at speed, and I apologise.
MR JUSTICE FRASER: I understand.
LORD GRABINER: And I accept your Lordship's point, but I do
emphasise the point that the expression "extraordinarily
serious behaviour" is a strong expression. It is an
eye-catching expression. And in the context of this
debate, there was no warrant for it and, in my
submission, it is extremely prejudicial and certainly
wasn't necessary for the purposes of the Common Issues.
523, you say:
"For the reasons I have expressed above, I have
considerable misgivings about Post Office's motivation
for the treatment of Mrs Stockdale during this
litigation and for the treatment itself in terms of
refusal to provide obviously relevant documents. The
evidence of Mr Carpenter, far from satisfying these
concerns, actually increases them. The Post Office
appears, at least at times, to conduct itself as though
it is answerable only to itself."
And then missing a couple of lines:
"This would be a worrying position were it to be
adopted by any litigant. The Post Office is an
organisation responsible for providing a public service
which, in my judgment, makes it even worse."
In 724, in the closing sentence:
"It appears to wield that power with a degree of
impunity."
That, of course, is the Post Office.
And 1059, at the end of that paragraph:
"It would be perhaps too cynical for even the most
hardened Post Office watcher to suggest that the
problems with Horizon led to changes to and extension of
the contractual liability of SPMs for losses that were
adopted in the NTC. However, that option can't be
entirely discounted."
In my submission, this is an unnecessary and
speculative and offensive observation about Post Office,
and there was simply no justification for the
incorporation of that passage and it reveals a mindset
impacting upon the future cases.
MR JUSTICE FRASER: Lord Grabiner, that passage at 1059
arises in the following circumstances. The clause that
deals with liability for losses in the SPMC expressly
requires negligence, carelessness or fault on the part
of an SPM. The NTC clause that deals with liability for
losses does not have that limitation, and the
Post Office witness who explained the evolution of one
contract form to the other told me that the intention
was that there would be no difference in scope for
liability. In other words, the NTC, on his evidence,
was intended also to require fault, and the finding that
I made on the clauses themselves is that that plainly
wasn't the case on the actual words, and I rejected his
evidence.
In those circumstances, there was no explanation for
the change in extent of liability from the SPMC into the
NTC, and any comments I have made in 1059 have to be
read in the context of the fact that I had rejected
Mr Beal's evidence and what Mr Beal's evidence in fact
was.
But do I understand the submission to be effectively
that I should simply have made the findings on the
contractual effect of the two different contract forms
and not dealt with Mr Beal's evidence about them at all.
LORD GRABINER: Absolutely, because what you have actually
done is to lay the ground for a very strong attack on
the basis that the contract amendments were specially
designed in order to make life much tougher for
Subpostmasters in the future, and this would have been
obviously a matter for breach debate or for a more
general view about the conduct of Post Office in the
whole of this litigation.
MR JUSTICE FRASER: I understand.
LORD GRABINER: But to say it at that stage, in my
submission, is unnecessary and prejudicial.
MR JUSTICE FRASER: I understand.
LORD GRABINER: In paragraph 1111, your Lordship says:
"The Post Office describes itself as the nation's
most trusted brand."
You say:
"So far as these claimants and the subject matter of
this group litigation are concerned, this might be
thought to be wholly wishful thinking."
Then at the end of the paragraph:
"The Post Office asserts that its brand is trusted
by the nation. The SPMs who are claimants do not trust
it very far, based on their individual and collective
experience of Horizon."
Well, I mean, your Lordship can imagine what I would
be saying about that, but my submission is that the
passage speaks for itself.
Criticisms under a new rubric, criticisms of
Post Office's behaviour in this litigation,
paragraph 34. Your Lordship describes the evidence that
you received, and at the end of that paragraph,
your Lordship says:
"The Post Office seemed to adopt an extraordinarily
narrow approach to relevance, generally along the lines
that any evidence that is unfavourable to Post Office is
not relevant."
Obviously that is a serious criticism of the way
that the Post Office conducted the litigation.
Then paragraph 21, you begin with the words:
"Nothing in the judgment should be taken as my
expressing any concluded view on the functionality of
Horizon systems."
So your Lordship is obviously aware of the concern
that we are now focused upon. And I will not go through
the whole of that paragraph, but towards the end,
your Lordship says:
"However, Post Office seemed to want findings on
that only if they were in the Post Office's favour.
This is a peculiarly one-way approach by any litigant."
Then I think what I want to do is to show
your Lordship the closing submissions. Could you look
at transcript Day 14/36, lines 17 to 25, which are in
{B9.3/2/682}.
MR JUSTICE FRASER: I am afraid it has not come up yet.
LORD GRABINER: Day 14, page 36, lines 17 to 25. It is in
the bottom right-hand corner there. So it is line 17.
So the closing submission is:
"On credibility, we have a problem here."
Does your Lordship have it? Line 17, page 36, if
you are on the four on a page, right-hand corner.
MR JUSTICE FRASER: Yes, I do, sorry.
LORD GRABINER: "On credibility we have a problem here
because, of course, someone in my position would like to
rely on the answers of these individuals and how they
accounted, some of which, in my submission, was
dishonest or at least not credible. The trouble with
that submission is that would require your Lordship to
make findings as to that which, given the nature of this
trial, I am not in a position to do, because at least
there has not been full disclosure of the accounting
relationship."
Now, what I say about that is this. It may be
a good submission and it may be a bad submission, but my
learned friend Mr Cavender was certainly not submitting
that findings on credit should only be made if they were
in Post Office's favour, and, in my submission, the
conclusion that your Lordship has reached in the earlier
paragraph we are complaining about, namely 21, I think,
and 34, were not justified.
Then paragraph 28 you say:
"Another point with which I have to deal is what
Mr Cavender called or described in Opening as a
'challenge to the court'."
Then just at the end of that paragraph:
"The Post Office may have made these submissions
because, on an objective analysis, it fears objective
scrutiny of its behaviour, or it may have made them for
other reasons."
This, with respect, is a common theme in the
judgment. Your Lordship is speculating on all the bad
things Post Office might have done. Even though
your Lordship doesn't reach a concluded view, the
fair-minded observer would still be struck by the
one-sided and, in my submission, prejudicial speculation
contained in that observation.
Paragraph 30 at the end, when your Lordship is
summarising another approach adopted by the Post Office,
and you say at the end:
"This seemed to me to be an attempt to put the court
in terrorem."
And then at paragraph 123, your Lordship can look at
that for context, but the bit I am interested in is
towards the end of the paragraph, the last 15 lines or
so:
"The Post Office must have decided to attack him
[that, I think, is Mr Bates] ..."
MR JUSTICE FRASER: Where are we? I am sorry.
LORD GRABINER: Paragraph 123. I am sorry.
MR JUSTICE FRASER: Not at all, 123, yes.
LORD GRABINER: Just the last 15 lines or so:
"The Post Office must decided to attack him [I think
that is Mr Bates] because the whole case of the Post
Office requires an assumption or acceptance that the
predominant, or only, cause of shortfalls is fault (or
worse) on the part of SPMs. The case by the Post Office
is that careful and/or diligent and/or honest SPMs
and/or their assistants do not experience shortfalls.
Therefore, so far as the Post Office is concerned, in
each branch where such shortfalls occurred, either the
Claimants and/or their assistants must have at least
some, and potentially all, of those characteristics. If
it were otherwise, the Post Office edifice would run the
risk of collapse."
Again, this is an offensive conclusion and it does,
in my submission, or would in the minds of the observer,
reveal a mindset on the part of your Lordship.
Paragraph 295 --
MR JUSTICE FRASER: Before you move on, if you go back to
the end of paragraph 121, if you would.
LORD GRABINER: Yes, my Lord.
MR JUSTICE FRASER: I summarise in the last four lines the
submissions that the Post Office made to me about
Mr Bates and/or put to him in his cross-examination,
which I described as a sustained attack, and terms used
by the Post Office to describe his evidence included the
following words: risible, meaningless, nonsensical and
weak, and the Post Office's case also was that he had
convinced himself of the truth of his own account
because he had been campaigning against them for years.
So in terms of putting the findings at the end of --
I beg your pardon, not the findings, the criticisms at
the end of 121 in context, they have to be read with
123, don't they?
LORD GRABINER: That is fair enough, and I apologise. That
is perfectly fair, but my submission nevertheless is
that what is at the end of 123 does involve some
conclusions, and revealing your Lordship's thinking.
But the real point is that regardless of what the
evidence was or the cross-examination was, this has
nothing to do with the contract issues, but it has
everything to do with other matters yet to be tried.
Of course, the last sentence is particularly
revealing:
"If it were otherwise, the Post Office edifice would
run the risk of collapse."
So it looks like a fanciful construct. It does
reveal a view, in my submission.
MR JUSTICE FRASER: Understood.
LORD GRABINER: 295 {B7/29/100}, this is in relation to
Mrs Stockdale, and her interview. The last few lines:
"If that replacement took place after April 2016,
and if it is because of the replacement that this
recording is not available, then that means that
Post Office has failed properly to deal with an
important record directly relevant to the litigation
during the proceedings themselves."
So the implication from that is that Post Office has
failed to preserve evidence or may have destroyed
evidence, but it is all left up in the air and it is
a speculative observation.
In 393 {B7/29/129}, again, if your Lordship would be
kind enough just to look at that for context.
MR JUSTICE FRASER: 393.
LORD GRABINER: The passage that I am going to go is to 394,
a few lines down, after reference to Mrs Rimmer's team:
"It may well not have been drafted by Mrs Rimmer at
all, as some litigants' solicitors are often responsible
for the content of witness statements. This was not
pursued in cross-examination, so it is neither necessary
nor desirable to make any finding about it. I certainly
don't criticise Mrs Rimmer for it, although if it were
not written by her, it should not have been in her
statement."
So this is an implied allegation of professional
impropriety against Post Office's legal advisers. We
are all familiar with the context, but your Lordship is
speculating about something which is actually very
serious and it was entirely inappropriate, in my
submission, to incorporate that into the judgment.
Then in 532, you wholly:
"I wholly reject this evidence by Mr Trotter."
Then at the end of that paragraph, 532:
"This next point was not put to him. It appeared as
though his witness statement had been written by someone
else and not by Mr Trotter."
A similar point, 476, 10 or 12 lines down, reference
to Mr Abdulla:
"This part of her written evidence [this must be
Mrs Dar's evidence] sought to give the impression,
through careful wording of her witness statement, that
she had covered the same ground in the interview as
contained in these much later checklists."
Several lines down on, but towards the end of the
paragraph --
MR JUSTICE FRASER: I think it is Mrs Ridge's evidence.
LORD GRABINER: You may well be right and I apologise, yes,
that is right, and then just further on, towards the end
of the paragraph:
"This passage of her evidence appears to have been
written for her, but again the point was not put so
I make no findings about it."
This is another example of an implicit allegation of
what would be professional impropriety. Why speculate
about it? It is quite unnecessary but very, very
damaging to the view of the observer looking at this
bearing in mind the expectation of the future trials.
483 is the next paragraph. It is again for context.
If your Lordship could be kind enough to look at the
paragraph. But at the end of the paragraph:
"Given by early 2017 this litigation was well under
way it may be an example of internal suppression of
material, but I make no specific findings on that as the
point wasn't raised. I can think of no rational
explanation for this however."
This is, in my submission, wholly inappropriate, not
least the conclusion that apart from the suggested
impropriety your Lordship could think of no other
rational explanation for Post Office's behaviour. That
is a conclusory statement and it is an incredibly
damaging statement. And it is a highly prejudicial
statement.
MR JUSTICE FRASER: This was a Post Office auditor asking
for internal documents from the Post Office.
LORD GRABINER: It doesn't matter, my Lord, because these
were matters which everybody knows were going to be
subsequently dealt with.
Paragraph 560, in subparagraph 5, even the identity
of both the sender and the recipients of internal emails
have been redacted from disclosed correspondence.
MR JUSTICE FRASER: Where are we now?
LORD GRABINER: Sorry, it is paragraph 560, subparagraph 5.
Your Lordship may recall this. This is where the
disclosed correspondence was redacted.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Then in later submissions on typographical
corrections:
"... maintain this was done for data protection
reasons. The contents of the emails heavily redacted
... the court will not go behind an assertion of
privilege."
Your Lordship says:
"However, given that part of the emails are accepted
as not being privileged and have not been redacted
I can't see any sensible basis for maintaining any
redaction of the identity of the sender and recipients."
That is a serious criticism of the disclosure
process adopted by Post Office. It proceeds actually on
a false basis. Post Office did not redact those
documents for the purposes of these proceedings. They
had been disclosed in these proceedings in exactly the
same form that they were in when originally provided to
Mr Bates. The original versions had been redacted for
data protection reasons.
MR JUSTICE FRASER: But the contents were redacted as well
as the senders and the recipients.
So, Lord Grabiner, if you look at line 5 of 560,
subparagraph 5 {B7/29/175}, the contents of the emails
were themselves heavily redacted. So if the sender and
the recipient's identity were redacted at the time for
data protection I entirely accepted the correction
Mr Cavender I think submitted.
LORD GRABINER: I understand your Lordship's point.
If we may, we may come back to you.
MR JUSTICE FRASER: Yes, of course.
LORD GRABINER: All the redactions I am told were related to
third party data. All the redactions.
MR JUSTICE FRASER: Does that, therefore, mean that the
redactions within the contents of the emails need to be
reviewed again?
LORD GRABINER: No. Those redactions within the content are
there because they reflected data protection redactions
in the originals.
My understanding is that that was explained to
your Lordship during the trial. But I am not going to
invite him to deal with it now, but it may be that
Mr Cavender can deal with it.
MR JUSTICE FRASER: No. Of course.
LORD GRABINER: Then in 561 your Lordship says:
"These are examples in my judgment of a culture of
excessive secrecy at the Post Office about the whole
subject matter of this litigation. They are directly
contrary to how the Post Office should be conducting
itself. I do not consider that there can be a sensible
or rational explanation for any of them."
The criticism I would make speaks for itself.
Then turning to another heading: "Criticism of
Post Office witnesses". 375:
"Mr Beal's way of giving evidence was very much the
house Post Office style, certainly for the more senior
of its management personnel who gave evidence. This was
to glide away from pertinent questions or questions to
which the witness realised a frank answer would not be
helpful to Post Office's cause."
Then just below that:
"He sought to give me evidence highly favourable to
Post Office which I consider was slanted more towards
public relations consumption rather than factual
accuracy."
Then in 400, the sentence:
"That is simply not correct. I do not accept that
Mr Breeden could believe it was."
In 425 in relation to Mrs Van Den Bogerd your
Lordship said:
"This, therefore, must mean that Mrs Van Den Bogerd
is an extremely poor judge of relevance."
In 544:
"I have no reason to think that any of Post Office
witnesses were doing anything other than stating their
genuine belief as at 2018 based on their recollection,
with two exceptions. The first is some of Mr Beal's
more extreme claims that the drafting of the NTC was
designed to replicate a SPM's responsibility for losses
under the SPMC. It was also intended by Post Office
that the contract with NFSP would be made public.
Neither of those claims bear analysis when compared with
the detailed drafting of each of those documents, both
of which have been carefully drafted, no doubt with the
assistance of sophisticated legal advisers.
"The second is Mrs Van Den Bogerd. She tried to
give the impression that the detailed cross-examination
about Mr Abdulla was something she couldn't really deal
with because she had no detailed knowledge in the
witness-box. That is simply not correct. She had
signed a very detailed witness statement just a few days
before for the Horizon Issues trial which dealt with the
matters being put to her about Mr Abdulla in
considerable detail. I find that she was simply trying
to mislead me."
Further on your Lordship described an answer from
her was "simply disingenuous". Then further on in the
emboldened part:
"Mrs Van Den Bogerd did not provide any reference in
his witness statement to matters unfavourable to the
Post Office case."
So two things are especially striking, in my
submission, about these extracts.
First your Lordship makes a very general statement
about Post Office's house-style of giving evidence.
That shows that from now on you are likely to disbelieve
Post Office's evidence because it comes from
Post Office. In my submission that is how it would be
viewed by an objective observer.
Secondly, those criticisms of Post Office witnesses
are founded on what they said or did not say about
evidence which was irrelevant. Ie irrelevant for that
trial.
Mr Beal is criticised for his understanding of how
the liability provisions in the NTC should be construed.
But his subjective understanding is quite irrelevant to
their proper interpretation or construction. That is
always a matter for the court.
He is also criticised for his evidence on the NFSP.
This too was irrelevant. Mrs Van Den Bogerd was
criticised for not giving evidence on Horizon. Her
evidence on Horizon belongs properly to the Horizon
trial.
So we say that your Lordship's conclusions as to the
credibility of these witnesses are unfair, not least
because the evidence they were giving was supposed to be
confined to the Common Issues, which is what their
witness statements were directed to.
The other point about these conclusions is that they
will inevitably colour your Lordship's view of these
witnesses as and when they come before you in one or
other of the later trials.
Then I think with a bit of luck I will get done by
the short adjournment, my Lord.
The next topic heading is "Attacks on the NFSP and
Post Office's relationship with NFSP".
So there were attacks on Post Office's relationship
with the National Federation of Subpostmasters. It was
not represented in court and had no opportunity to
comment on your Lordship's judgment.
So in 368 you say:
"It is obvious, in my judgment, that the NFSP is not
remotely independent of Post Office, nor does it appear
to put its members' interests above its own separate
commercial interests."
In 369 just for context, 370, the second sentence:
"Such matters plainly should not be linked in the
way that NFSP and the Post Office link them in this
instance. I don't consider that NFSP can, in these
circumstances, properly be considered to be independent
or to be acting in the interests of SPMs, given the way
it involved its own commercial interests as a condition
in the way explained in Part F of the judgment."
Then if your Lordship would just be kind enough to
look for context at 576 and 577, and then I want just to
pick up on a emboldened passage at the end of 577. This
is in relation to Paula Vennells, the chief executive of
the Post Office. Then at the end of 577 your Lordship
says:
"Rather curiously, therefore, the email above
demonstrates that the NFSP was only prepared to agree
what amounted to an increase in its members' potential
compensation if its own future was assured by the
payment of substantial sums to it. I find that this
shows that the NFSP put its own members' interests well
below its own. I also find that NFSP is not fully
independent."
So your Lordship has there embarked on a lengthy
discussion of the circumstances in which Post Office
disclosed a copy of its grant agreement with NFSP in
response to a freedom of information request.
Your Lordship was especially interested in the fact
that NFSP's website had been altered in the course of
the trial. You will probably remember that. This is in
your Lordship's 589. Then towards the end of 589
your Lordship said:
"I was given no evidence by anyone from Post Office
about why this was done and done in terms that suited
the Post Office's case on this point. I find this
behaviour highly suspicious. It also undermines yet
further the claim by Post Office that NFSP is
independent."
So here your Lordship seems to be adopting the
conspiracy theory approach to the evidence. That would
be matter of grave concern to the fair-minded observer
aware of the context. And, of course, a party to that
conspiracy apparently was the Post Office, but there was
no detailed evidence on any of this because it simply
wasn't relevant to the Common Issues trial.
Then earlier in these submissions and from time to
time by reference to various paragraphs of the judgment
I drew attention to observations of your Lordship to the
effect that you were specifically going out of your way
to make it clear that you were not making any findings
on Horizon or breach.
So if we can go back now to paragraph 517, which
I think is the classic example in the judgment,
your Lordship will be familiar with this paragraph and
I will not re-read it, but 517. It is the "crystal
clarity" paragraph.
MR JUSTICE FRASER: Just give me a moment.
LORD GRABINER: 517.
MR JUSTICE FRASER: Yes, thank you. Yes.
LORD GRABINER: Your Lordship will obviously recall what you
said there.
That form of words, in my respectful submission,
would appear to the fair-minded observer to be aimed at
pre-empting the substantive criticisms that I have been
making throughout. It is just a mantra which would not
convince the observer that your Lordship had not
prejudged the issues which still fall to be tried by
your Lordship.
Unsurprisingly there is some learning on this
subject. The authority is the case of Steadman-Byrne.
Could I invite your Lordship's attention to it.
MR JUSTICE FRASER: Yes. Is this the one where the parties
were called in over the short adjournment, having heard
the claimant's evidence, and the district judge said he
believed them and he made various other comments. There
are about maybe 16 comments in the judgment of
Lord Justice Sedley that set out exactly what he said,
I think.
LORD GRABINER: Yes, there was a dispute about what was said
but Lord Justice Sedley thought that that was
irrelevant. It is {B9.5/14/1} I think it should be.
MR JUSTICE FRASER: Is it tab 14?
LORD GRABINER: It is genuinely 14, yes.
MR JUSTICE FRASER: That is the practice note. I have
actually been looking at it in the judgment itself. But
the judgment is in the practice note so ...
LORD GRABINER: Yes, it is. Yes, it is, you are quite
right.
MR JUSTICE FRASER: So I think paragraph 4 sets out what the
district judge said to them over lunch.
LORD GRABINER: There was a dispute about what was said but
Lord Justice Sedley didn't think that was terribly
important.
If we go to paragraph 5:
"The defendant's case is that the judge, by saying
what he said, went well beyond giving counsel an initial
indication of his thinking and expressed firm views
adverse to a defendant whose evidence he had not yet
heard. When, therefore, in his judgment the next day he
found against the defendant, a reasonable observer,
knowing what we have recounted, would infer that he
might well have done so because of a prior prejudice in
favour of the claimants and against the defendant."
I cite that merely to make it clear beyond argument
that it was a case of apparent bias and not actual bias,
because the learned Lord Justice is using the formula
applicable to the apparent bias cases. Then at
paragraph 12 Lord Justice Sedley says:
"The claimants rely strongly on the remark recorded
by their counsel but not recalled by the defendant's
counsel; namely that the judge wanted to give both
counsel an indication of his thoughts. We are entirely
content to accept that whether the district judge said
it or not it is what he was seeking to do. The question
remains whether the thoughts he communicated were
nevertheless such as to suggest to a reasonable observer
that his mind was all but closed against the defendant."
Then in paragraph 16 the learned Lord Justice says:
"Both the common law and the convention for the
protection of human rights and the fundamental freedoms
recognise the fundamentality of every litigant's right
to a Tribunal free both of bias and of the objective
appearance of bias. The appearance of bias includes
a clear indication of a prematurely closed mind. In our
respectful view the district judge, albeit acting out of
the best of motives, gave the parties an inescapable
impression that he had formed a view not only favourable
to the claimants, but that the defendants were not going
to be believed if he contradicted them."
Now the reasonable observer would certainly not be
convinced by the formulation of words which are belied
by the substance of the judgment, because in every case
you can't just point to the words. What will matter is
the impression gained by the observer of the substance
of the language used by the judge in the case; in this
case your Lordship.
What Amjad shows, in my submission, is that the
court will and can look through the mantra and be
prepared rigorously to test the reality.
The real question is whether in the eyes of the
reasonable observer that is a real possibility that
your Lordship has prejudged matters which are still due
to be tried by you. That is the key question.
As your Lordship knows, I am sure, from the Locabail
case -- that is the only other case that I want to make
reference to --that the benefit of any real doubt should
be resolved in favour of recusal.
Perhaps we can just look at that. This is
Lord Justice Bingham's judgment {B9.5/7/480} at the foot
of the page between G and H.
Lord Justice Bingham says, do you see that, between
G and H:
"In most cases we think the answer, one way or the
other, will be obvious, but if in any case there is real
ground for doubt that doubt should be resolved in favour
of recusal."
Your Lordship's use of what I have called, I hope
not disrespectfully, the mantra, demonstrates your
understanding that you should not have made findings for
example about Horizon or breaches of contract or
breaches of duty.
Our case is that your Lordship nevertheless went
ahead and made those findings. Many of your conclusions
and observations are strongly expressed.
So in a nutshell my submission is that in the eyes
of the fair-minded observer this is a very plain case
where there is a risk of an appearance of bias infecting
the current Horizon trial and the future trials between
these parties.
For that reason I respectfully invite your Lordship
to recuse yourself from these proceedings and also
either to stay or adjourn the Horizon trial.
My Lord, those are my submissions. I am sorry they
were undertaken at great speed, but they are my
submissions.
If there is anything you would like to ask me about
I am very happy to try and help you.
MR JUSTICE FRASER: I just had a couple of questions.
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: So far as relief on the application,
I think the application itself said adjourn the Horizon
trial, which obviously is underway at the moment, and
today you have said adjourn or stay.
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: Can I just be clear what in fact is
meant by either or each of those terms.
The evidence of fact is almost finished. If I were
to recuse myself from being the managing judge of the
group litigation that would obviously include recusing
myself from any further involvement in the Horizon
Issues trial.
LORD GRABINER: My Lord, yes.
MR JUSTICE FRASER: That would then have to start again in
front of another judge. Is that correct?
LORD GRABINER: Yes, is the answer. How long has this trial
been going on for?
MR JUSTICE FRASER: Two weeks.
LORD GRABINER: Would your Lordship bear with me for
a moment.
MR JUSTICE FRASER: Yes. (Pause)
LORD GRABINER: Yes, I think that would be the consequence.
Yes.
MR JUSTICE FRASER: It is really abandon or stop the Horizon
trial.
LORD GRABINER: Yes.
MR JUSTICE FRASER: So it can be reheard from scratch.
LORD GRABINER: Precisely.
MR JUSTICE FRASER: Yes. Right, thank you very much. That
is the first question.
The second question is slightly mundane in terms of
the observations and submissions that you have made
already in respect of Mr Beal, but just to ask
a specific question about Mr Beal with particularity.
At page 94 of today's transcript when you were
taking me through the passages in respect of my
observations on the relationship with the NFSP you said
that I had criticised Mr Beal for giving irrelevant
evidence, or I had criticised him in respect of
irrelevant evidence. Do you recall those submissions?
LORD GRABINER: Let me just look at my --
MR JUSTICE FRASER: 544 is the paragraph of the judgment
where I deal with an observation on Mr Beal and an
observation on Mrs Van Den Bogerd.
LORD GRABINER: What I said was Mr Beal is criticised for
his understanding of how the liability provisions in the
NTC should be construed.
MR JUSTICE FRASER: Yes, that is correct, you did say that.
If we can just call up on the common screen for the
Common Issues trial, please, {C2/2/6}.
That is Mr Beal's witness statement where he gives
evidence about a point which you and I have already
debated a little bit, which was the difference in fault
or no fault liability under each of the two contract
forms.
Now on the basis that he had given that evidence in
his witness statement I assume the Post Office's
position is that that was relevant evidence and Mr Green
could cross-examine on it. But if I have misunderstood
that would you tell me.
LORD GRABINER: My response to that is first of all it
obviously was in the witness statement but it was
irrelevant to the matters in the trial.
MR JUSTICE FRASER: Understood.
LORD GRABINER: And whatever came out of the
cross-examination was similarly irrelevant.
MR JUSTICE FRASER: Yes.
LORD GRABINER: It goes back to a point that I sought to
make at the beginning of these submissions, which is the
fact that irrelevant material was incorporated into any
of the witness statements and/or was cross-examined is
supremely irrelevant because it doesn't thereby enlarge
the Common Issues that were the subject of the trial.
MR JUSTICE FRASER: I understand. That is very helpful,
thank you.
Then the final point -- and it may be that you are
not able to give me an answer immediately, in which case
you can just give me the brief answer at the beginning
of your reply -- am I entitled or not, would
a fair-minded hypothetical observer take account of the
result in the Common Issues judgment in terms of how
many issues were resolved in the Post Office's favour
and how many were resolved in the claimants' favour or
not?
LORD GRABINER: Absolutely not.
MR JUSTICE FRASER: Wouldn't take note. Thank you very
much. That is very helpful.
LORD GRABINER: Absolutely not. It would be irrelevant.
The only matters that are relevant is whether it can
fairly be said that there are passages in the judgment
which give rise to the concern I have been describing.
MR JUSTICE FRASER: Thank you very much.
LORD GRABINER: The fact that at the end of the day the
weight of the findings was in favour of one side or the
other would, in my submission, be irrelevant.
MR JUSTICE FRASER: Thank you very much indeed. That is
almost perfectly timed on your part, if I may say so,
and we will come back at 5 past 2 and I will hear from
Mr Green.
(1.00 pm
(The short adjournment)
(2.05 pm)
Submissions by MR GREEN
MR JUSTICE FRASER: Mr Green.
MR GREEN: May it please your Lordship. The claimants'
submission is that this is an application without merit
and without foundation. There are effectively three
strands to that submission.
The first is that it wholly ignores the proper role
of context. The second is that it appears to proceed on
a misapprehension as to the correct approach to
analysing apparent bias. The third is that it proceeds
specifically on a misapprehension as to the proper
judicial assessment of the proceedings as they actually
were before your Lordship during the Common Issues
trial.
There is a preliminary point to make about the
informed observer test. The informed observer is
someone who is presumed to actually have been at the
trial and know what happened, not commenting on it from
afar and not island-hopping between different findings
and observations to make assertions about those without
having regard to the judgment as a whole.
Taking the points in stages --
MR JUSTICE FRASER: Is that right, though? Is it not
sufficient for the reasonable well-informed observer
just to read judgment number 3?
MR GREEN: My Lord, no, the law is clear that the
reasonably -- well, the informed observer test is (a) an
objective one and (b) an informed one. So the informed
observer knows about the trial as it was presented to
your Lordship.
In one case, there is even a point about knowing
things that perhaps even weren't in the public domain
about the trial. So "informed" I would underline in
relation to the approach of the informed observer test.
A couple of short points in relation to context, and
those points are these, and I think your Lordship will
have apprehended what these submissions would be anyway.
The first point is that specific findings or
observations in a judgment should not be taken out of
their immediate context. That is, either lines which
are within the same paragraph but have been omitted from
mention, which either directly contraindicate what is
being said of the other lines that are mentioned or put
those lines into a context which is explanatory, or
adjacent paragraphs which give the overall context
within which the particular paragraph falls. I refer to
that as the immediate context.
The second point of context is that those passages
should not be considered without regard to the judgment
as a whole and read as a whole, including
your Lordship's findings in favour of some of
Post Office's witnesses, for example, and having due
regard to the presence or absence of a careful and
meticulous approach to analysing with precision what
evidence was and was not given, how it was challenged
and what submissions were made about it.
The third matter of context is to look at the
proceedings themselves and the issues that your Lordship
had directed to be tried and how the parties had in fact
presented their cases before the court.
The fourth matter of background, but important
context, is the fact that this is group litigation where
frequently the managing judges are put in a position
where parts of trials have to be separated off, as
sensibly as they can be, never perfectly hermetically
sealed from other aspects, and tried and tried fairly
and sensibly.
That is the quintessential role of the managing
judge for which part 19 of the Civil Procedure Rules
makes provision.
I will take your Lordship, if it is necessary, to
the British Coal case, which we have in the bundle,
which addresses the generosity of approach to a managing
judge in those circumstances.
Your Lordship is very familiar with the passages
that have been identified in Mr Parsons' 15th witness
statement and the words that precede and follow them and
their context, because it is in your Lordship's
judgment, so I am not going to spend the time that I do
have taking your Lordship through them paragraph by
paragraph, not least because I hope we have given
sufficiently illustrative examples of our answers in our
written skeleton argument.
But it is important to address some of the points
which arise in relation to the Common Issues themselves,
and how they in fact arose before your Lordship. So the
first point to note is that the Common Issues were not
plucked out of the air.
The Common Issues were agreed between the parties
and they were derived from the parties' generic
pleadings, which is an important point, and the key
paragraphs to which they referred, although inevitably
not all paragraphs, were identified in the schedule to
the order which defined the Common Issues themselves.
Your Lordship will know that, for example, some of
the more famous paragraphs in the generic defence, like
93 and 94 about the approach to construction and where
the burden of proof should lie, were identified in that
Common Issues document.
And what then followed was the service of evidence
by Post Office for their part, which was designed to
support the factual premises which they had pleaded as
being expressly relevant to construction of the
contracts. I will very briefly make these points good
in a moment.
What then followed was Post Office's attempt to
strike out the only evidence that the lead claimants
individually could give in response to whether or not
the factual assertions designed to support Post Office's
pleaded case on construction were in fact a reliable and
realistic account of what would happen on the ground or
not.
That was unsuccessful for a number of reasons which
your Lordship will remember in the admissibility
judgment, which is judgment number 2, which I will also
come to very briefly in a moment.
From there, Post Office then elected not to put in
any more evidence, not to abandon the evidence that it
had chosen to put in on matters such as training and so
forth, but in its opening and closing to continue with
the premise for construction upon which Post Office's
entire case on the Common Issues depended.
There were two particularly important facets to
that. The first facet was what had been pleaded at
paragraphs 76, 85, 93 and 94 of the generic defence, and
those factual assertions which I will take your Lordship
to in a moment. That is one side of it.
The other facet of the Post Office's case was the
agency relationship, because Post Office expressly
opened and closed on the footing that the agency
relationship suffused the entire contractual
relationship, and the contractual relationship sat atop
of the agency relationship and any findings as to the
nature of the agency relationship and the role of the
account as between principal and agent necessarily
involved the court determining what the branch trading
statement was, in fact, because that was disputed, as
your Lordship records in the judgment, and how it came
about and what it included.
That was necessary, and I don't think that can
sensibly be disputed.
So those were the two key facets in relation to
construction. The third area was credit. That loomed
very, very large in the proceedings as they were
actually conducted before the court.
My Lord, can I just take your Lordship very briefly
to the generic pleadings, which I think your Lordship
will remember. Rather than going through them in
detail, your Lordship will remember --
MR JUSTICE FRASER: I don't think on an application such as
this, given its subject matter, it is necessary to go
through the pleadings in detail.
MR GREEN: I am grateful.
MR JUSTICE FRASER: But if you are going to draw my
attention to what a part of a pleading says -- because
I remember the Common Issues' schedule or schedule 1 to
the order that set down the Common Issues was drafted
and agreed by the parties, but it was approved by the
court.
MR GREEN: Exactly.
MR JUSTICE FRASER: And within it, it had numerous
references to pleading paragraphs, a point which, during
the trial, I required both parties to get rid of those
so that it was a standalone document.
MR GREEN: Indeed.
MR JUSTICE FRASER: Where do you want me to go?
MR GREEN: Maybe the most convenient place to look, my Lord,
is in judgment number 2, in the admissibility judgment,
which I think your Lordship may have in a separate hard
copy folder. {B7/27/1} on Opus.
If we look at paragraph 40 {B7/27/14} of that, this
is your Lordship's judgment on the admissibility
application, and so this highlighted the relevance of
these paragraphs, if it was ever in doubt, which I will
submit it wasn't to Post Office:
"This paragraph is pleaded to by the defendant in
paragraphs 93 and 94 of the generic defence. These
state as quoted below."
Another relevant passages precedes these in
paragraph 76. 76 sets out some subparagraphs and in
particular, if we look at (4) onwards:
"Post Office was unable to monitor at first hand the
transactions undertaken in branches on ..."
MR JUSTICE FRASER: Pause for a moment. I think we need to
go on to page 15.
MR GREEN: It is on the next page, if we can. {B7/27/15}
MR JUSTICE FRASER: Yes.
MR GREEN: There we go:
"Post Office was unable to monitor at first hand the
transactions undertaken in branches on its behalf, in
relation to which it was liable to Post Office clients.
These transactions and the manner in which they were
carried out were the responsibility of the relevant
Subpostmasters."
Then the same point about custody of property, and
then (6):
"Post Office relies on the accurate reporting by
Subpostmasters of accounts, transactions and the cash
and stock held at the branch."
And then at 93, paragraph 93, which is just below:
"Post Office notes the claimants' case set out in
paragraph 55 applies only to section 12, clause 12
[which is the burden of proof point]. More generally,
as regards shortfalls disclosed in a Subpostmaster's
accounts, the Post Office notes the following
principles, each of which applies to Subpostmasters."
And then the subparagraph (1):
"Where a Subpostmaster asserts that he or she is not
responsible or liable for a shortfall, the legal and/or
evidential burden of proof is on him or her to establish
the factual basis for such assertion in that:
"(a) In the absence of evidence from a Subpostmaster
to suggest that a shortfall arose from losses for which
he or she was responsible, it is appropriate to infer
and/or presume that the shortfall arose from losses for
which he or she was responsible. Such an inference
and/or presumption is appropriate because (1) branches
are under the management of Subpostmasters or their
assistants, (2) losses do not arise in the ordinary
course of things without fault or error on the part of
Subpostmasters or their Assistants and (3) it would not
be right to infer or presume that a shortfall or loss
was caused instead by a bug or error in Horizon."
Then it goes on:
"Subpostmasters bear the legal burden of proof that
a shortfall did not result from the losses for which
they were responsible. This is because (1) the truth of
the matter lies peculiarly within the knowledge of
Subpostmasters as the persons with responsibility for
branch operations and the conduct of transactions in
branches, (2) it would be unjust for Post Office to be
required to prove allegations relating to matters that
fall peculiarly within the knowledge of Subpostmasters,
and/or (3) where a person is subject to fiduciary
obligations as regards his or her dealing with assets
the burden is on that person ..."
And so forth.
So if your Lordship looks at the foot of that page,
94 as to section 12, clause 12 of the SPMC:
"That should construed in accordance with the
principles set out in paragraph 93 above."
So that is all from the generic defence, not recited
there, but from paragraph 85 of the generic defence,
which is -- page 39 of the generic defence is:
"The written Subpostmasters' contracts are to be
construed as a whole and in light of the relevant
factual matrix pleaded in paragraph 76 above."
Which is the paragraph to which I have already
referred the court.
So the starting point was that your Lordship had
regard to the positive case being advanced by the
Post Office when considering the relevance of the
evidence that was sought to be struck out by the
Post Office.
That is essential context, and I note my noble and
my learned friend Lord Grabiner did not actually I refer
to the basis upon which the Post Office itself invited
this court to construe the contracts at all in his
submissions.
We respectfully say that is an impermissible
omission because it seeks to advance a criticism of the
judgment which is unfounded when you go back to look at
the case that your Lordship was considering as advanced
by Post Office and the case in support of which the
relevant evidence was adduced by Post Office through its
witness statements.
Now, the evidence of Mrs Van Den Bogerd was
considered in some detail and your Lordship made
findings in relation to her evidence. And the reading
note which Post Office submitted to the court explaining
the relevance of different aspects of their evidence --
MR JUSTICE FRASER: Bear with me one moment, Mr Green, just
one moment. (Pause)
Yes, sorry. I mislaid a file. Reading note.
MR GREEN: The reading note is at {C2/0/1} on Opus.
MR JUSTICE FRASER: I think I mentioned the reading note in
the judgment.
MR GREEN: Indeed.
MR JUSTICE FRASER: Do you have a reference for where I did
that?
MR GREEN: I don't, my Lord, but I can find one. And the
reading note identified, if we go over the page
{C2/0/2}, there is Mrs Van Den Bogerd's evidence.
MR JUSTICE FRASER: Paragraph 365, I described it as
a helpful reading note, I think.
MR GREEN: Indeed, and your Lordship will see at page 2 of
that reading note under "Subpostmasters and their
branches" there are, for example, Horizon, training and
support, causes of shortfalls, see also Helen Dickinson,
Post Office's reliance on Subpostmasters and
responsibility for shortfalls.
MR JUSTICE FRASER: Yes.
MR GREEN: Then Helen Dickinson we can see at the bottom
gives evidence about fraud in branches and concealing
shortfalls and so forth.
What is striking in Mrs Van Den Bogerd's statement
was the extent to which she covered matters which did in
fact or purport to support the case that Post Office --
Post Office's pleaded case in those pleaded paragraphs
to which I have just referred. If we look at {C2/1/1}
--
MR JUSTICE FRASER: That is her witness statement.
MR GREEN: That is her witness statement. And at the foot
of that, there is an index, but just above that, she
says:
"I also provide some commentary on what the
real-world effects of the Claimants' alleged
interpretation of the Subpostmasters contracts."
I think it should say "are" or "would be" and
I think that is suggesting relevance because it may
assist the court to test the commercial sense of
different constructions contended for.
But it is clearly, as we can see in a moment,
designed to show that the Subpostmasters' contention,
the claimants' contention, was unworkable. I am not
going to take your Lordship through the statement.
MR JUSTICE FRASER: I don't think, on the basis of how
Lord Grabiner puts the application, you need to or ought
to, because it is put fairly squarely on the contents of
judgment number 3.
MR GREEN: My Lord, indeed. The only problem is that I was
going to briefly identify a couple of points, if I may,
and then explain why I say it is relevant to how the
application is put.
Just by way of a couple of points, page 23 of that
document at paragraph 78 {C2/1/23}, does your Lordship
have the bottom three lines from the middle:
"This means that the Subpostmaster has complete
control over the branch accounts and transactions only
enter the branch accounts with the Subpostmaster's (or
his assistant's) knowledge."
And that rather teases out the point that
your Lordship asked my learned friend about in relation
to transaction corrections entering the accounts and how
the branch trading statement would come about.
On page 37 at page 135 at the end of that paragraph
{C2/1/37}, it says:
"It would be unlikely that a Subpostmaster, having
kept his accounts diligently, still had no idea where
a material problem was arising from."
MR JUSTICE FRASER: Where have you just read from?
MR GREEN: It is the foot of paragraph 135.
MR JUSTICE FRASER: Yes.
MR GREEN: These are just examples, my Lord, but page 39,
paragraph 145 {C2/1/39}, says:
"In any event, for the reasons set out above, the
Subpostmaster is best placed to investigate shortfalls
and Post Office generally cannot find the root cause of
a shortfall without the Subpostmaster's cooperation.
A reversal of the burden for determining the root cause
of shortfalls would also create the perverse situation
whereby the greater the scale and sophistication of the
false accounting by a Subpostmaster, the less likely
Post Office will be able to find the root cause of
a shortfall."
Et cetera. And that refers back up to evidence or
argument about the fact in branch, for example 142, no
transaction enters their accounts without their consent.
This includes transaction corrections, which must be
accepted by the Subpostmasters before they form part of
the branch accounts, and causation in 143.
Now, it is right -- I am sorry to just to have
pressed on to that, because I wanted to show
your Lordship why I say those passages are relevant, and
they are relevant because the correct approach on an
application such as this is to consider and the informed
observer is taken to know what the issues were and how
they were presented before the court.
And it was their positive case pleaded case, which
they repeatedly refused to abandon, notwithstanding
being instructed do it at least two CMCs, as we have
explained in our skeleton argument.
MR JUSTICE FRASER: Not invited to abandon by me.
MR GREEN: No, by the claimants.
MR JUSTICE FRASER: But the fact that they were invited to
abandon it by the other side is neither here nor there.
It was their pleaded case.
MR GREEN: It was their pleaded case. It might sharpen any
argument on election, having elected to persist with it,
but I take your Lordship's point. It was their pleaded
case, and all this evidence, which is the flip-side of
many of the findings that my learned friend
Lord Grabiner has been referring to, were positively
asserted by Post Office. So they were positively in
issue as to whether or not Post Office was entitled to
take succour from Mrs Van Den Bogerd's evidence in
support of its pleaded case before the court.
So we say it is extremely surprising that neither
the application nor the submissions that your Lordship
has heard this morning face up to and deal with head-on
the fact that Post Office positively advanced in its
pleadings and directly in its evidence the case I have
just identified. That is a matter of context which it
would be completely wrong to leave out of account.
Against that background, my learned friend suggested
there was a bit of a quandary after judgment number 2
about how to play the cross-examination.
We respectfully say that is not right, partly
because of the case positively being advanced and still
being advanced at that stage. Secondly, because the
admissibility application had itself spelt out -- the
judgment on the admissibility application had itself
spelt out why it was that these matters might be
relevant to the matters pleaded by Post Office.
So Post Office was not trying to get what
your Lordship's view could be; but had at the very
lowest a careful steer about its potential relevance in
the admissibility judgment number 2.
My Lord, there is an irony in the reliance that is
placed by the Post Office on the transcripts of the
hearings that run up to the admissibility application,
because the premise of this application is that
your Lordship, having expressed a robust view, will be
regarded by the informed observer as not amenable to
persuasion.
Your Lordship will remember the warnings that you
gave me about putting in irrelevant evidence and, if
necessary, sitting there and crossing them out line by
line, because they have included them in their
application. And those indications were robust and they
were repeated at a number of hearings before
your Lordship had heard full argument on the detail of
what that evidence might be relevant to.
That is all just part of normal adult behaviour in
court. What then happens is that there is an
admissibility hearing and it goes the other way.
So in Mr Parsons' 14th witness statement, he is
actually relying on a sequence of interlocutory events
that positively demonstrate that notwithstanding having
expressed extremely robust views at a number of
interlocutory hearings, your Lordship was amenable and
dealt with the admissibility application with an open
mind. The irony of that is not actually acknowledged
anywhere either in the application or in my learned
friend's submissions.
Now, it is right too to identify that, as
your Lordship will have seen from the conclusion to our
skeleton argument at page 51, which is at {B9.4/2/51} --
MR JUSTICE FRASER: Did you say your page 51 of your
skeleton?
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: That is your final paragraph, is that
right?
MR GREEN: That is the final paragraph before the annex.
MR JUSTICE FRASER: Yes.
MR GREEN: This just one example, but quite a striking one:
"The Post Office's invocation to the Court in both
Opening and Closing Submissions to construe the contract
on the basis of its evidence, by way of particular
example, that of Mrs Van Den Bogerd:
"Issues 8 and 9 concern the proper approach to
responsibility for losses. They should be considered
against the factual background of how accounting works
in a Post Office branch as described by
Angela Van Den Bogerd at paragraphs 73 to 82 and 126 to
140 ..."
Now, pausing there, there is an element of
Groundhog Day here, my Lord, because what actually seems
to be the position is that when Post Office sought to
strike out the claimants' evidence, they wanted
a one-sided trial where they could tell your Lordship
what the factual background was in support of their
pleaded case, and we couldn't adduce any evidence to
contradict it. And your Lordship didn't accept that was
the appropriate way to conduct the trial on those
factual issues.
Then what happens is at the trial in opening and
closing, they are still saying to the court that that is
the right approach. So when your Lordship makes
findings on those matters or matters on which they may
depend -- so the suggestion, for example -- I will give
a concrete example of this. The suggestion that
Subpostmasters are best placed to find the root cause of
shortfalls, you cannot sensibly identify that and test
that proposition, which is, after all, the Post Office's
own case. Without saying, well, was there any training
on that, it is absolutely impossible.
And that is why Mrs Van Den Bogerd sought to put in
evidence about training in her witness statement. It
was the underpinning, the base layer, beneath which the
proposition that for various reasons, including the
training which told them how to do it, they would be
well placed or peculiarly well placed to find the cause
of shortfalls.
Not only is there the definition of the
Common Issues by reference to the pleadings, there is
also the highlighting of the significance of those
issues and the relevant evidence that goes to them in
the admissibility judgment. Then there is the opening
and the closing which invites the court to determine
these issues in the light of evidence actually given by
Post Office and then there is the middle of that
sandwich of opening and closing, we have got how
cross-examination was actually conducted.
I hesitate to say so, but my learned friend
Mr Cavender did actually go first in cross-examining.
So the idea that, as I think is suggested, at the very
least tentatively if not more firmly, that somehow the
scope of cross-examination was all my fault because of
how I cross-examined or others with me is a little bit
surprising, because actually, what happened is there was
widespread cross-examination by Post Office of the lead
claimants on a wide-ranging series of matters. There
are some particular categories which are important. One
key category is on pre-contract dealings.
The reason it is a key category is because it is one
which no one can sensibly dispute was in issue. And
there were very, very firm challenges made, as
your Lordship knows, in relation to the credit and
credibility of the lead claimants in relation to those
matters.
MR JUSTICE FRASER: All the lead claimants had their credit
challenged and there were factual issues in relation to
contract formation of all six of them.
MR GREEN: Exactly. So credit was bound to be -- was
necessarily relevant, we say, to any proper judicial
assessments. And I will make this submission good in
a moment by reference to an authority, but on any view,
it is absolutely common sense that credit generally was
relevant to the acceptance or rejection of the lead
claimants' evidence.
In our respectful submission, it was right that
your Lordship should have regard to the challenges in
fact made, as your Lordship did, not to parse them in
the way rather artificially that Post Office invited the
course to do.
So category 1 was pre-contract. And then category 2
was lots of evidence about credit, and category 3 was
evidence about how things worked in reality. That was
essentially responsive evidence to the defendants'
evidence that it was adducing in support of its pleaded
case.
MR JUSTICE FRASER: It also goes to credit too, though,
doesn't it?
MR GREEN: I was going to say there is a big overlap, as
your Lordship I think put to my learned friend.
MR JUSTICE FRASER: Say, for example, Mr Abdulla, if
Mr Abdulla had not been accused of lying and had not
been accused of a criminal offence and had not in fact
been asked at all about his suspension and termination,
then, for example, Mrs Ridge's suspension interview with
him would not necessarily be relevant.
MR GREEN: I might not have needed to cross-examine on it.
MR JUSTICE FRASER: Whether you needed or not, let's put it
to one side. I am talking about strict admissibility
and relevance, because evidence has to be relevant in
order to be admissible.
MR GREEN: Precisely.
MR JUSTICE FRASER: Once, for example, he was cross-examined
on the transcript of his suspension interview, then you
became entitled to ask questions. The way that
Lord Grabiner explained it this morning, though, is that
that attack on Mr Abdulla's credit should only have been
considered insofar as it went to pre-contractual --
well, to contractual formation matters and that
I crossed the line by going wider than that and dealing
with the other matters that Mr Cavender had put to
Mr Abdulla. What do you have to say about that?
MR GREEN: With no disrespect to my learned friend, that is
a hopeless and unrealistic submission and it is wrong.
MR JUSTICE FRASER: All right.
MR GREEN: If a challenge is adduced as to credit, and
I would say a fortiori where someone is accused of
a criminal offence or dishonesty --
MR JUSTICE FRASER: That is why I chose Mr Abdulla as an
example. There were two lead claimants accused of
criminal offences, and I think Mrs Stockdale was the
other one.
MR GREEN: Yes.
MR JUSTICE FRASER: All right.
MR GREEN: There is a powerful argument that ex debito
justitiae they're entitled to a finding openly in the
judgment if the court does not agree with what has been
put openly to them. And even if that is not right, if
there is no entitlement, it is certainly permissible.
MR JUSTICE FRASER: I didn't make any findings in respect of
either of those points.
MR GREEN: No, my Lord. That is my point, and I am saying
what your Lordship did fell well below that.
Your Lordship took a view about credibility in the light
of the matters that were put and the answers that were
given.
And the extraordinary contortions that the
Post Office found themselves in are reflected at
paragraphs 80 to 82 in our skeleton argument.
MR JUSTICE FRASER: Let me have a look.
MR GREEN: I know that my learned friend Lord Grabiner read
out the passage in the transcript where I interrupted my
learned friend Mr Cavender, who was saying: well,
someone in my position would normally want to say that
Mr Abdulla wasn't telling the truth.
MR JUSTICE FRASER: Where am I going?
MR GREEN: Page 80.
MR JUSTICE FRASER: I thought you said paragraph 80, I am
sorry. This is in the annex.
MR GREEN: Yes, in the annex, annex 1.
MR JUSTICE FRASER: Which paragraphs?
MR GREEN: It starts at 197, my Lord. {B9.4/2/80}
MR JUSTICE FRASER: Yes.
MR GREEN: The reason this arose, as reflected in the
transcript, was my learned friend was making the
submission that someone in his position would normally
want to say is that Mr Abdulla had not given honest
evidence. I interrupted to point out that is exactly
what their closing submissions in writing did say at
paragraph 592.
MR JUSTICE FRASER: That is the passage that Lord Grabiner
took me to this morning.
MR GREEN: Precisely, and what follows from that, as your
Lordship rightly remembered --
MR JUSTICE FRASER: I think I politely told you to stop
interrupting.
MR GREEN: I think you politely told me to stop
interrupting, which I did and was noted. What then
happens is that the matter is effectively sought to be
cleared up by the document that we have at {A/18/1}
because the court was not clear precisely where this
dividing line was drawn.
This is the note at A/18/1, and the Post Office's
position by that stage, after closing, was that:
"The court should refrain from making any findings
of fact on matters going to issues outside the scope of
the Common Issues trial, specifically matters going to
issues of breach and causation. It follows, for example
that no findings should be made on whether various
claimants were guilty of false accounting, nor, by
parity of reasoning, should findings be made as to how
Post Office investigated losses or issues associated
with false accounting.
"Conversely, findings of fact will need to be made
on matters going, or arguably going, to the
Common Issues, in particular, on whether the various
claimants did or did not receive various contractual
documents and other documents relevant to the
Common Issues at or before the time of contracting.
Those findings will necessarily require the court to
take a view as to the credibility of the claimant and
the Post Office witnesses in their evidence on those
matters.
"Post Office's position is that in making those
findings and in taking that view on credibility, the
court should:
"(a) Take account of evidence given by witnesses on
matters within the scope of the Common Issues trial.
So, for example, the court's findings on whether
Mr Bates received a copy ... will presumably take into
account the evidence he gave on that issue, and on
associated issues raised in cross-examination, (for
example, whether he is careful generally or whether he
had a copy of the SPMC when writing to the
Post Office ..."
And so on:
"(b) Take account of evidence on matters which go to
the witnesses' credibility, but do not risk trespassing
on any future trial, because they do not go to issues of
breach or causation. For example, Mr Abdulla's evidence
on whether Christine Adams and Christine Stephens were
the same person can be taken into account in assessing
his credibility.
"(c) Not take account of evidence which, while it
may go to the witness's credibility risks trespassing on
a future trial or trials. For example, the Court should
not make any findings on whether Mr Abdulla falsely
accounted, even though such matters might be relevant to
his credibility. Nor (staying with this example) should
the court base any findings on Mr Abdulla's credibility
which are necessary to decide the Common Issues on his
evidence as to the allegations of false accounting made
against him."
Pausing there, they then go on to say that:
"To facilitate drawing that line as cleanly is
a possible in the circumstances, the Post Office
withdraws the submissions made in the seventh and eighth
sentences of paragraph 592 of its closing submissions."
We have reproduced that at page 81 and page 82 of
our skeleton argument {B9.4/2/82}.
MR JUSTICE FRASER: Is that the strike through in
paragraph 200?
MR GREEN: Exactly, and what it leaves in place is:
"The central fact about Mr Abdulla's evidence can't
be avoided. He lied frequently and brazenly."
MR JUSTICE FRASER: That specifically wasn't withdrawn.
MR GREEN: Precisely, and that is left in play and
specifically not withdrawn.
And moreover, if your Lordship looks at the bottom
of that paragraph:
"He said that he was given the impression in the
interview held following the revelation of his
wrongdoing that if he paid back the money he would be
reinstated; that was untrue, as the transcript showed.
He claimed to have called the helpline very frequently,
then, when the call logs were put to him, said that in
fact he gave up and stopped calling. And he claimed to
believe this was all a conspiracy to eject him from his
branch."
Pausing there, not only was the very carefully
parsed approach to bright line relevance and irrelevance
such as to leave in the allegation that he lied
frequently and brazenly, but it was also specifically to
leave in all these post-contractual matters, including
helpline and all these other things and the impression
in the interview with Mrs Ridge.
MR JUSTICE FRASER: That is the suspension interview, isn't
it?
MR GREEN: Indeed. All of these later matters were left in
for your Lordship to consider, and your Lordship is now
saying there's an appearance of bias because you did.
MR JUSTICE FRASER: I am not, Lord Grabiner is saying.
MR GREEN: Lord Grabiner is saying there is an appearance of
bias because your Lordship did what you were asked to,
which is just bizarre. I have certainly never come
across a recusal application of this type, it must be
pretty unique.
MR JUSTICE FRASER: That is not entirely relevant, though.
MR GREEN: It is a trailblazer, if we can put it in those
terms, because it is difficult to find an example of
a recusal -- and I will show your Lordship why I say
this very carefully in a moment -- it is difficult to
find any example in the authorities of a judge carrying
out the judicial assessment that he is required to carry
out and giving judgment and the losing party then
alleging bias against him on a proper foundation.
MR JUSTICE FRASER: I think there is -- well, the case in
the bundle which seems closest is possibly Otkritie, but
I don't want to knock you off your course. I assume we
will get to the law at some point.
MR GREEN: My Lord let's do it now. Otkritie is at tab 26,
it is {B9.5/25/1}.
MR JUSTICE FRASER: But I do remain of the view, Mr Green,
that whether it is unique or not is not relevant.
MR GREEN: It is not dispositive, I agree. I am just trying
to identify where we are in the pantheon of types of
apparent bias that have been recognised by the courts
and I respectfully say on a proper analysis nowhere.
If we look at Otkritie, the -- can I just make one
final point in relation to those passages I was looking
at?
MR JUSTICE FRASER: Yes.
MR GREEN: I respectfully say that when a witness is accused
of dishonesty, the court will assess the witness'
honesty in the round in the light of the atmosphere in
court, the witness' demeanour and all the answers and
all the questions that the witness was asked. It is
quite wrong to urge upon the court a contrary approach.
For example, a witness who might have had difficulty
answering a question which was directly related to
a Common Issue, but gave answers which suggested he was
compellingly honest on a matter that one would now be
urged to leave out of account, we say is that
a completely wrong approach and not justified, and
I have not found any authority to support it.
MR JUSTICE FRASER: However I assess the credit of any of
the witnesses, that is contained on the face of judgment
number 3.
MR GREEN: Precisely.
MR JUSTICE FRASER: So any amplification or an argument
about it or analysis doesn't much matter, really.
MR GREEN: No. No, my Lord. The only point we are
respectfully saying is that the basis of the application
criticising your Lordship's judgment is wrong.
MR JUSTICE FRASER: Yes, all right.
MR GREEN: There is a second facet to that, which is this.
That what is said is that not only has your Lordship
fallen into the error of considering irrelevant
material, because that is present in all three
categories, but studiously avoided is any suggestion
that such findings would not have been otherwise
available to you.
So there is no suggestion that the impugned findings
were without proper foundation in the evidence you did
hear at all. What is said is they are irrelevant and
your Lordship should not have made those findings for
a number of reasons.
In the category of -- in the second two categories,
what is said about -- or the third category, perhaps,
the witnesses, my learned friend said this morning at
page 94 of the transcript between lines 14 and 19 that
your Lordship's findings against witnesses would
effectively create apparent bias in relation to
your Lordship entertaining their evidence in future
trials. That is effectively the submission that is
made.
My Lord, that is wrong in law, and demonstrably so,
and I will explain why. If we go to paragraph 40 of
Otkritie --
MR JUSTICE FRASER: 14.
MR GREEN: 40, which is on page 14 {B9.5/25/14}. One can
see in the second line of paragraph 4:
"The authorities to which I have referred make it
clear that the mere fact that the judge has made adverse
findings against a defendant (or any party to an action)
does not mean that a fair-minded and informed observer
would think the judge was biased."
And your Lordship will have seen our treatment of
the Ablyazov decision in the skeleton, and the point
about the Ablyazov decision was the prior consideration
by the court in that case of matters going directly to
credibility in the context of contempt.
MR JUSTICE FRASER: Mr Justice Teare sentenced Mr Ablyazov
to 22 months, I think.
MR GREEN: Precisely, and you could not get a more extreme
context for the Ablyazov decision than that. And if
I could take your Lordship to Ablyazov for a moment,
please, which is at {B9.5/21/27}.
MR JUSTICE FRASER: Are we going away from Otkritie or are
we coming back?
MR GREEN: I was going to come back to that in a minute, if
I may.
MR JUSTICE FRASER: Where is Ablyazov?
MR GREEN: It is hard copy tab 22.
MR JUSTICE FRASER: Okay.
MR GREEN: {B9.5/21/27}.
MR JUSTICE FRASER: Yes.
MR GREEN: This is in the context of -- perhaps we can start
on page 25 just go back to the discussion on apparent
bias and where it begins.
MR JUSTICE FRASER: Page 25.
MR GREEN: Page 25 at paragraph 65 {B9.5/21/25}.
MR JUSTICE FRASER: Yes.
MR GREEN: At the foot of that page, your Lordship will see:
"Although the principles of apparent bias are now
well-established and have not been in dispute in this
case, the application of them is wholly fact-sensitive."
So the submission I made earlier about context is
underpinned throughout the authorities.
MR JUSTICE FRASER: Yes.
MR GREEN: At 66, just above 66, there is a qualification to
the normal rule that findings against a party won't be
a ground for a bias in a future trial. It says here:
"A case for recusal may always arise, however, where
a judge has previously expressed himself in vituperative
or intemperate terms. That however, has not been
alleged in this case."
And just above that your Lordship will see --
MR JUSTICE FRASER: It is alleged in the instant
application, though.
MR GREEN: Not quite in those words, but critical invective.
MR JUSTICE FRASER: It's critical invective. I interpreted
that as meaning nonjudicial language.
MR GREEN: Indeed.
And just above, your Lordship will note just below
D:
"Fifthly no example of a designated judge being
required to recuse himself or herself has been found."
That is in the context of a designated judge in the
Commercial Court, we say a fortiori the case of
a managing judge in group litigation, and that is
relevant context and it goes to that fourth point on
context by way of background that I identified in
opening.
At 68 the court is looking at {B9.5.21/27} where
a judge has heard pre-trial evidence and may have come
to conclusions.
MR JUSTICE FRASER: Where are we looking now?
MR GREEN: On page 27, paragraph 68:
"Special considerations may arise in such cases.
Where a judge has had to form and express a view as to
the credibility of a party or an important witness as
a result of such cross-examination, should that require
the recusal of that judge from further involvement in
the litigation, even where he does so, as in this case,
in moderate terms? Committal applications have to be
judged on the criminal standard of proof, so that, where
such an application has resulted in a finding of
contempt of court, the judge has applied a standard of
proof higher than that of a civil trial.
"On the other hand, in any event, the findings of
the judge are part of the res gestae of the proceedings.
They are, as it were, writings on the wall and would
need to be considered (subject to appeal of course), for
any relevance in any subsequent proceedings and at trial
by the same judge or by any other judge. They may not
even be appealed or, as in this case, this may be
appealed and upheld so that in either event, it is not
possible to say that the judge was in error. In this
connection, certain findings might give rise to issue
estoppels, which would not only have to be taken into
consideration by any judge at trial but would be binding
on him, as Mr Béar accepts. What then is the difference
between the judge who bears in mind his own findings and
observations and another judge who reads what the first
judge has written, as he must be entitled to do?
Mr Béar submits that in the case of the first judge who
has heard and written, the impact of what he has learned
is more direct, immediate and powerful, and is that the
critical distinction. However, it seems to me that,
unless the first judge has shown by some judicial error,
such as the use of intemperate, let me say unjudicial,
language, or some misjudgment, might set up a complaint
of the appearance of bias, the fair-minded and informed
observer is unlikely to think that the first judge is in
any different position from the second judge - other
than he is more experienced in the litigation."
My Lord, this is quite important, because we learned
this morning from Lord Grabiner that the Post Office's
position is again one of these very nuanced positions in
relation to what the consequence of the application --
of your Lordship acceding to the recusal application
would be, and it is a surprising and difficult
proposition, because the entire premise of the
application, the thread which runs through all three
categories, is irrelevant material to which
your Lordship has wrongly had regard in the judgment.
Then that is deployed for different purposes.
But what is said is that, even though the
paragraphs, the two parts of paragraph 25 in Mr Parsons'
14th witness statement which deal with the second and
third categories, specifically say that there is an
appearance that your Lordship has not acted impartially
in the past in the Common Issues judgment, it is said
that that is not going to mean that the Common Issues
judgment has to be undone on that footing.
Now, in reality, I think that is an extremely
difficult submission to mount, because what is -- is it
truly the Post Office's position that when they seek to
appeal, as they have said they will, the Common Issues
judgment they are not going to trespass on the
suggestion that your Lordship took into account
irrelevant evidence? I doubt that.
If your Lordship has acceded to the recusal
application on the footing that you have taken into
account or addressed irrelevant evidence, why won't they
be able to say this to the Court of Appeal?
So it is a difficult position for them to adopt.
MR JUSTICE FRASER: Well, the position vis-a-vis judgment
number 3 and its future life depends on an application
for permission to appeal being made at some point,
permission either being granted and an appeal happening
or permission not being granted either by me or the
Court of Appeal, and we have not reached that point yet.
MR GREEN: No, my Lord, we haven't, but what your Lordship
was told immediately when my learned friend
Lord Grabiner rose to his feet was to put the court at
ease that acceding to the recusal application would not
mean that the Common Issues trial had to be re-run.
MR JUSTICE FRASER: In a sense, what happens to the
Common Issues trial has nothing to do with me.
MR GREEN: My Lord --
MR JUSTICE FRASER: So far as judgment number 3 is
concerned, the only order still available that any party
could ask me for is permission to appeal that judgment.
MR GREEN: Indeed.
MR JUSTICE FRASER: The order that reflected it has been
sealed.
MR GREEN: Indeed.
MR JUSTICE FRASER: So retrial, correction on appeal, any of
those points are nothing to do with me, are they?
MR GREEN: Let's approach it on that basis.
MR JUSTICE FRASER: Just in terms of jurisdiction --
MR GREEN: Jurisdictionally, that is right.
MR JUSTICE FRASER: It is a judgment that has been handed
down in final form and has been sealed.
MR GREEN: I think there was a sort of reassuring,
authoritative suggestion to your Lordship that you
needn't worry too much if you do accede to this because
it will all be all right.
MR JUSTICE FRASER: I didn't interpret it in those terms.
MR GREEN: I wrongly did, so I needn't address your Lordship
further on it --
MR JUSTICE FRASER: As far as I am concerned, I am pretty
clear that this is what the Post Office is submitting,
but if it is not, then Lord Grabiner will correct me at
the reply stage. This application concerns two parts of
the litigation, the extant Horizon trial --
MR GREEN: Indeed.
MR JUSTICE FRASER: -- he has been very clear about that
indeed, and it is a point that I made myself nearly two
weeks ago, because although it says adjourn, it really
means a backstop and restart in front of someone else.
And the other is my role as managing judge in the group
litigation. Those are the two heads.
MR GREEN: My Lord, they are.
MR JUSTICE FRASER: Whatever concomitant effect there might
be on judgment number 3 is gloriously off-stage, isn't
it?
MR GREEN: My Lord, I'll move on. Shall we leave it
gloriously off-stage? I think I made the submission to
your Lordship that in effect there is a collateral
attack on the Common Issues judgment number 3 because
what is being said is that your Lordship had regard to
irrelevant matters and didn't behave impartially in
drafting that judgment.
MR JUSTICE FRASER: I am not sure the second of those two
points is necessarily correct, but let's put it to one
side because it is not part of this application.
MR GREEN: I will just press on with the primary submission,
which is simply this: that the authorities effectively
sing with one voice at the highest level of authority
that the litmus test really is whether what the first
judge does he does is part and parcel of his judicial
assessment of the litigation before him.
And that is in Ablyazov at paragraph 70, as
your Lordship will probably know {B9.5/21/27}. What
Lord Justice Rix says there is:
"In this connection, it seems to me that the
critical consideration is that what the first judge does
he does is part and parcel of his judicial assessment of
the litigation before him. He is not prejudging by
reference to extraneous matters or predilections or
preferences. He is not even bringing to this litigation
matters from another case [et cetera and so forth]. He
is judging the matter before him, as he is required by
his office to do, and if he does so fairly and
judicially, I do not see that the fair-minded and
informed observer would consider there was any
possibility of bias."
And, my Lord, I only mention in passing that in the
next tab in the bundle we have got O'Neill, number 2,
And at page 23 of that {B9.5/22/23}, paragraph 51, that
passage, although in the context of a criminal case that
the Supreme Court was dealing with there, that passage
is cited with approval as applicable not just to civil
cases and criminal cases.
And that begs the question, my Lord, well, what is
your Lordship duty-bound to do? There is a ready answer
in the bundle at tab 29, in the Harb case, which is at
{B9.5/28/1}.
MR JUSTICE FRASER: Which paragraph?
MR GREEN: If we look first of all at paragraph 28 on
page 8.
MR JUSTICE FRASER: Paragraph?
MR GREEN: 28 on page {B9/5/28/8} of the report, this is my
learned friend making submissions in that case, and:
"Lord Grabiner submits that in the light of
Mrs Harb's evidence the doubt expressed by the judge was
fully justified."
This is where the judge in the end accepted
Mrs Harb's evidence in circumstances where the basis for
doing so was hotly disputed, and I will come in a little
more detail to why in a moment:
"But despite that, he had failed to explain what had
given rise to the doubt or what had enabled him to
overcome it. Lord Grabiner has identified several
aspects of both her evidence and that of
Mrs Mustafa-Hasan which he submits called for careful
consideration, but which had not been identified or
discussed in the judgment. In his submission, the judge
failed to analyse the evidence properly. He had
accepted the evidence of Mrs Harb and Mrs Mustafa-Hasan
uncritically and as a result had reached conclusions
which were unsustainable on the totality of the evidence
before him. It is necessary, therefore, to examine more
closely the criticisms made of their evidence."
Now, pausing there, your Lordship will remember
possibly the most hard-edged submission that my learned
friend Lord Grabiner made to your Lordship was in
relation to speculations that evidence that some of the
Post Office's witnesses were giving was not necessarily
their own. And a number of passages --
MR JUSTICE FRASER: That was on the contents of witness
statements.
MR GREEN: Precisely, that what was in their witness
statements was not originally theirs.
MR JUSTICE FRASER: There was an extensive survey on the
contents of witness statements in the commercial and
business and property courts about a year ago which
received nearly a thousand responses. One of the
specific questions in it dealt with solicitors providing
material for a witness statement that wasn't in the
witness' own words. It was one of the questions.
MR GREEN: Precisely.
MR JUSTICE FRASER: And it was circulated every specialist
Bar Association and the London Litigation Solicitors
Association and widely advertised in magazines such as
Counsel.
MR GREEN: I was only going to -- I wasn't going to refer to
that survey particularly.
MR JUSTICE FRASER: That is in the public domain.
MR GREEN: Completely, and it is a point frequently made and
thought about carefully since witness statements were
introduced, because when I started and certainly when my
noble and my learned friend Lord Grabiner started, we
didn't have them. You rocked up in court, the witness
stood up and you found out what they said and then you
cross-examined them without knowing what they were going
to say.
MR JUSTICE FRASER: I am not sure "rocking up" is right.
MR GREEN: I might have put that a bit lightly.
MR JUSTICE FRASER: You might have rocked up. I am not sure
that is the correct way of putting it, in all
seriousness. Evidence-in-chief was given orally.
MR GREEN: Yes, evidence-in-chief was given orally. What
I was trying to convey, albeit rather slightly clumsily,
was you didn't pore over somebody's evidence for weeks
in advance of arriving at court and listening to what
they were going to say. So the observations that my
learned friend took your Lordship to about the contents
of the Post Office witness statements were directed to
your Lordship's judicial consideration of whether or not
that evidence was actually properly theirs.
And if we go over the page on to page 10 --
MR JUSTICE FRASER: Of?
MR GREEN: Harb, if we continue over the page {B9.5/28/10},
it says:
"Lord Grabiner has identified nine examples of what
he says was Mrs Harb's evasiveness or lack of
credibility."
And there are various examples. At the foot of
subparagraph (iii):
"When questioned about that, her replies were
rambling and confused and appeared to portray an
unwillingness to deal with the question.
"(iv) When asked by the judge why she had chosen to
omit that matter or any reference to the present
proceedings (but little else), she could provide no
satisfactory explanation and resorted to little more
than bluster."
And then at (v) over the page {B9.5/28/11},
your Lordship may think significantly, given the
submission being made to your Lordship about
your Lordship's approach:
"There were occasions when Mrs Harb professed to
being unable to remember matters set out in her witness
statement, giving rise to doubt whether the statement
contained her true recollection of events."
Pausing there, these are all criticisms leveled at
the court for failing properly to make the necessary
judicial assessment of the matters before it.
So we respectfully say not only were your Lordship's
observations available to you, but the analysis which
underpinned them was actually necessary on the approach
urged upon the court by my learned friend in this case.
At paragraph 34 on {B9.5/28/12}:
"In our view the judge's approach to the evidence
was unsatisfactory in a number of significant respects.
First, he failed to identify in sufficient detail the
questions that needed to be answered if he were to
decide whether an agreement of the kind alleged by
Mrs Harb had been made. In addition, he failed to carry
out a proper evaluation of all the evidence in order to
test its strengths and weaknesses. Having referred in
paragraph 80 to the fact that counsel for the Prince had
made extensive criticisms of Mrs Harb's evidence on the
grounds that it was inconsistent with her witness
statement, he failed to deal with any of those
criticisms and brushed them aside by saying that it was
unrealistic to expect Mrs Harb to have a clear
recollection of events 13 years after the event."
It goes on to say at the bottom of that paragraph.
"It also fails to deal with the criticisms of the
quality of her evidence and the way in which she
responded to questions."
Now, pausing there, so the criticisms that were made
were accepted by the court as proper criticisms and that
the judge had actually erred in failing to carry out the
necessary evaluation of all of that evidence. So,
my Lord, that illustrates -- I don't say completely or
exhaustively -- the nature of the judicial assessment
which it was your Lordship's duty to undertake of the
case actually presented before you.
And that we get both from the underlying
observations by Lord Justice Rix, but also the
repetition of that and the approval of it at
paragraph 51 of O'Neill that I have already shown
your Lordship.
So the right approach to this is to look at the
context, to look carefully at the way in which the
parties' pleaded cases were put before the court, the
evidence that the parties sought to adduce in support of
the factual assertions that they had identified in their
pleaded cases and the basis upon which the case was
opened and closed by the parties.
We respectfully say it is quite wrong for
your Lordship to be criticised for making findings on
matters which had been put in issue by the parties
before you unless they could not be relevant to the
judicial assessment that your Lordship was undertaking.
We respectfully say there are no findings of that
sort to be found in the judgment anywhere.
Is that a convenient moment for a short break,
my Lord?
MR JUSTICE FRASER: I think it probably is. How are you
doing in terms of --
MR GREEN: I will be done by 4 o'clock, or 5 past 4.
MR JUSTICE FRASER: I think Lord Grabiner needs time to come
back on points of law or other matters. We will have
a five minute break for the shorthand writers. We will
go from that clock. It will be 3.22, although I know
that sounds pedantic.
(3.17 pm)
(Short break)
(3.23 pm)
MR GREEN: My Lord, before we broke a bit earlier on
I mentioned to your Lordship the right approach to the
informed observer.
MR JUSTICE FRASER: Yes.
MR GREEN: Could I just show your Lordship the Hashim
authority at tab 6 in the bundle, which we find at
{B9.5/6/8}, just below A, the paragraph beginning, "The
parties to this appeal were agreed":
"The parties to this appeal were agreed that the
test to be applied in a case such as this was that
stated by the QBD in Topping, namely would a reasonable
and fair-minded person sitting in court and knowing all
the relevant facts have a reasonable suspicion that
a fair trial for the applicant was not possible?"
This was actually mid-trial, but the dictum is of
general application:
"Most, if not all, of the cases in which this test
has been discussed have been cases of modest dimensions.
We know of no case approaching the scale of this where
a charge of apparent bias has been made. That makes it
the more important to recognise, as we understand to be
agreed, that the hypothetical observer is not one who
makes his judgment after a brief visit to the court, but
one who is familiar with the detailed history of the
proceedings and the way in which cases of this kind are
tried."
So, my Lord, we say it is demonstrably right that
the informed observer is assumed to know the detail of
the history of the proceedings and the backdrop and
context of group litigation and how cases of that type
are --
MR JUSTICE FRASER: I think that passage is quoted in
Otkritie.
MR GREEN: Yes, I think actually it is slightly elaborated
on, I think, if I remember correctly.
MR JUSTICE FRASER: Paragraph?
MR GREEN: It is {B9.5/25/1}.
MR JUSTICE FRASER: Remind me where it is in the hard
bundle.
MR GREEN: Sorry, it is tab 26. If we look at page 8
{B9.5/25/8} --
MR JUSTICE FRASER: It is paragraph 18, isn't it?
MR GREEN: It is, it is paragraph 18. There are the two
observations by the Master of the Rolls, the first one,
the one we just looked at, and the second one dealing
with interlocutory applications, which all go one way,
which is, I think, not actually directly in point here,
but gives some background to the role of a managing
judge.
Was there an aspect of Otkritie that my Lord wanted
assistance on from earlier, because I said I would come
back to it, or at least to hear our submissions?
MR JUSTICE FRASER: I wouldn't say necessarily assistance
because it is fairly clear, but at paragraphs 31 and
32 -- because in that case the judge did recuse himself
and he was -- it was sent back and he was told he ought
not to have done.
MR GREEN: Precisely.
MR JUSTICE FRASER: But it was a relevant feature, wasn't
it, that he, the judge, in that case at first instance
felt no personal embarrassment or discomfort in
continuing?
MR GREEN: Yes.
MR JUSTICE FRASER: I thought he said in his judgment he was
only recusing himself with extreme reluctance and he
interpreted the two challenges as being actual bias,
which doesn't apply here.
MR GREEN: Quite.
MR JUSTICE FRASER: At 32, I think first instance judges --
or it is said it is important that they don't recuse
themselves too readily in long and complex cases.
MR GREEN: Indeed.
MR JUSTICE FRASER: I suppose this would count as a long and
complex case.
MR GREEN: Indeed, precisely. And there is also a point of
approach in fact in relation to the suggestion that an
applicant should be given the benefit of the doubt,
which is one of the submissions that my learned friend
made. I think that needs to be thought about quite
carefully.
MR JUSTICE FRASER: He does have authority for that.
MR GREEN: Indeed, my Lord, and I think one needs to
consider quite carefully what is being said, because
I think where the basis for doubt is properly
established, then it -- and what is in issue is not
de minimis, then one can ready see what the court means
about erring on the side of caution for the proper
purposes of the administration of justice and justice
being seen to be done. One quite understands that, but
in fact one sees in cases where the court is discussing
things like having a shareholding, for example, that may
be small, but more than de minimis.
MR JUSTICE FRASER: In a litigant?
MR GREEN: In a litigant, something like that.
MR JUSTICE FRASER: I see, yes.
MR GREEN: Once that is established and it is not absolutely
de minimis, then even though it may not naturally be
thought to amount to apparent bias, one might give the
benefit of the doubt to the applicant in that situation.
Similarly, if it is established that what a judge
has done has gone beyond the bounds of proper judicial
assessment, that it is not part and parcel of the
court's judicial assessment of the litigation as it was
presented to it.
As soon as you can say with confidence that the
court has materially and, one might say more than once
because of the point about repeatedly that we saw in the
earlier authority, stepped outside the boundaries of
a proper judicial assessment of the proceedings as they
were before the court, then at that point, one then has
to look at materiality, and say, well, maybe at that
point the applicant should be given the benefit of the
doubt.
But we respectfully submit that the anterior
question of whether the court has or has not done that
still falls to be objectively analysed in a sensible
way. What you don't get to do is to disapply the
objective test by a side-wind by complaining about
things that you lost on or lost on very badly and then
going, "Well, that must raise a doubt and I should get
the benefit of the doubt".
Because if that were the right approach, none of
these indications to judges not too lightly to recuse
themselves, either in general or in long-running
proceedings, we say a fortiori in group litigation, they
would be meaningless and it would allow an applicant for
recusal to completely circumvent the carefully
considered and now really undisputed approach to
apparent bias.
So I did want to make that point clear in relation
to the suggestion of being given the benefit of the
doubt, my Lord.
Can I show your Lordship just briefly, in relation
to the approach to the evidence, paragraph 114 of the
closing submissions, which are at {A/8/48}.
MR JUSTICE FRASER: Whose closing submissions?
MR GREEN: This is the Post Office's closing submissions.
This is the sort of difficulty that I think certainly
the claimants had with the approach that the Post Office
adopted, because, of course, obviously some factual
assertions were in in terms of relevance on the face of
the pleading. Then they appeared to be out at the
admissibility application and then they were in again
for cross-examination and then out again for some
purposes in argument, and then in again in the closing
arguments, in the closing submissions.
If we look at 114, we can see:
"It is important to bear in mind the kind of factual
situation that is encompassed by this principle."
And this is Post Office relying on the principle of
a fiduciary's breach of duty has led to an incomplete
evidential picture and this is Post Office seeking to
illustrate the point by reference to actual -- its
version of the evidence that the court heard and putting
in issue examples of this in the lead claims:
"For illustration only, Mr Abdulla admitted in
interview that he had inflated the cash declared in his
branch to disguise shortfalls."
That is the Post Office's case:
"Mrs Stockdale relied on the privilege against
self-incrimination when asked how she had got her
accounts to zero despite having shortfalls and without
making them good or settling centrally, and Mrs Dar had
the misfortune to engage an assistant who falsified cash
declarations and seemingly lost or stole large amounts
of foreign currency."
And so forth.
So we go over the page {A/8/49}, then there is
reliance on the evidence of Mrs Van Den Bogerd about the
necessarily and reliance by Post Office on honest and
accurate accounting, Mr Howarth, and then:
"It is appropriate that the evidential difficulty
created by false accounting worked to the detriment of
the dishonest agent."
So what Post Office sought to do was, in some cases
absolutely directly, as we had, for example, in the
closing about issues 8 and 9 and Angela Van Der Bogerd's
evidence, but in other cases by a sort of side-wind,
inviting the court to accept criticisms of the lead
claimants or their evidence as illustrations of
a problem upon which they relied authority certain
purposes in their arguments.
So it was replete with those sort of contradictions
in the sense that when evidence was helpful for the
Post Office, it was in, and when their witnesses
performed badly, that is out. And your Lordship
shouldn't really say anything about it because if you
do, it is frightfully unfair and you have made harsh
criticisms. And we respectfully say that in a sense,
that is what all of this is about.
They have adopted internally inconsistent positions
in relation to the relevance of evidence and essentially
tried to ride two horses going off in completely
different directions, and your Lordship has had to try
and manage the consequence of that, and clarify it,
where possible, on credibility, still leaving an
extremely unsatisfactory position, make findings in the
light of the litigation as it was presented before
court, and then be accused of apparent bias for having
done so.
We respectfully suggest that is a flawed basis for
an application of this sort, having in mind its
seriousness and gravamen.
My learned friend wants me to read paragraph 112, so
we will go back a page and read that {A/8/48}:
"In considering these factual issues, the court
should not lose sight of the prior and more important
point that what happened in practice (including what
individual C's knew from time to time and what
Post Office's internal views may have been) are
irrelevant and inadmissible as to the question of
whether the contracts exclude or modify the accounting
principles. That is a question of contractual
interpretation."
Now, pausing there, that illustrates a number of
points which are unsatisfactory about the way that
Post Office ran its case. Again, that is out, but in.
So we get in, out, in, out, all the way through, even on
the same page. But it is also wrong, because what is in
fact important, as your Lordship has already heard
argument on this in the admissibility application, it
wasn't just contractual principles that were in issue,
there were also questions of agency.
And the authorities, which we do have in the bundle
if we need to go to them, make it absolutely clear that
there may be agency even when the parties by contract
disclaim that there is. It's not dependent on
a contract at all; it is dependent on what, in practice,
the parties have consented to do for each other. And
that was one of key concessions which fed into
your Lordship's admissibility decision in judgment
number 2 and it is a factor which complexifies to
a great degree, we respectfully say an unsatisfactory
degree, the submissions which Post Office adopted before
the court in opening, which said that the contract had
to be construed in the light of the agency relationship,
because the agency relationship, as Garmac and Branwhite
both show, is that subsequent evidence of what the
parties actually do in practice will be relevant, but
may be less important.
The question is -- those cases also make clear that
an express agency set out in a contract is not
determinative of the scope and nature of the agency that
in fact exists. So it is hopeless to say: ah, well, the
contract said this about the agency.
The court is required, by completely uncontroversial
cases that are trite, to look carefully at what in fact
happened, to look at the nature and scope of the agency
and the extent to which and how that was operated in
practice.
It was in relation to agency accounting principles
that the branch trading statement loomed so large,
my Lord, so it is wrong to say that.
MR JUSTICE FRASER: Do you have a reference? You don't have
to take me to it now, but a reference for the
Post Office's opening to which you referred then about
construing the contractual relationship --
MR GREEN: Yes, if your Lordship looks at --
MR JUSTICE FRASER: -- in the light of the agency
relationship.
MR GREEN: Yes, if your Lordship looks at the Post Office's
opening at opening submissions at page 8, and the
opening submissions are {A/2/8}. I am grateful to
Ms Donnelly.
MR JUSTICE FRASER: A/2/8. I think that is the wrong A2.
MR GREEN: Sorry, A/2/8. May we just start at {A/2/7} to
give it context.
MR JUSTICE FRASER: It was just to give me a reference, you
don't have to ...
MR GREEN: I will show your Lordship. I am not going to go
through all the paragraphs, but 15 to 17 is context
autonomy and so forth. 17 is reliance on SPMs to
accurately record and transact and so forth. And then
over the page {A/2/8}, the reliance referred to in 18 is
the reliance is paragraph 17. We have just seen and it
provides crucial context. This is totally consonant
with their pleaded case, to which I have already
referred the court.
Then if we look at their third point at 21:
"Third and most importantly, SPMs act as
Post Office's agents when transacting Post Office
business, with all the ordinary obligation and
liabilities that agency entails. Ultimately,
Post Office cannot and does thought seek to supervise
and prescribe in detail everything that SPMs do in
operating the agency business, but the basic fact is
that SPMs are transacting Post Office business on its
behalf."
Then over the page, crucially {A/2/9}:
"The express and implied terms of the SPMC and the
NTC need to be viewed through the prism of an expressly
created agency relationship, and so the express
contractual terms sit atop the body of the law
regulating the duties of agents to their principals.
The common law principles of agency are important
background to the contracts and any implied terms need
to be considered (and shown to be necessary) against
that agency background."
And then 22:
"As such, SPMs are obliged to account to Post Office
as its agent. They are acting on Post Office's behalf
and the Post Office relies on them to do so."
The final line of paragraph 22:
"This core fact suffuses the contractual
relationship."
So your Lordship was being invited to consider the
nature of the agency in the course of construing and
determining what the contractual relationship was, so we
respectfully say that when you do that in accordance
with the authorities, identifying the nature and scope
and effect of the agency, it requires you to look at the
reality on the ground of who was in fact doing what.
And the evidence I showed you from
Mrs Van Den Bogerd was not correct in that respect.
Transactions were not -- the transactions that entered
the Subpostmaster's account were not in their sole
control. The fact there was no dispute button and that
they had to settle centrally or accept in the way that
the court heard evidence about, showed that was not
a proper starting point for the court to understand how
the branch trading statement came about and to
understand the evidence in respect of which
Angela Van Den Bogerd gave and directed those paragraphs
of her witness statement.
My Lord, there is a background point. Your Lordship
may remember it from the admissibility hearing, which
was that there is a suggestion that there was not
sufficient disclosure in relation to some of these
issues. Your Lordship may remember it is recorded in
your Lordship's judgment, in judgment number 2.
I directed your Lordship's attention to the disclosure
orders that did address things like helpline, training
and those things.
Then the second CMC order, 2 February, 22 February
and then the third CMC order. So I am not going to take
your Lordship to those, but it is wrong to proceed on
a footing that there had not been disclosure given in
relation to issues like helpline and those sorts of
things.
My Lord, finally, what Post Office, we respectfully
say, was seeking before the court was a trial at which
evidence of what happened on the ground, which is
advanced, if accepted, would be relevant to
construction, but if rejected and contrary findings
made, could then be characterised by Post Office as
relevant to breach and, therefore, your Lordship
couldn't have regard to them.
We say that that was a false dichotomy and an
approach that your Lordship was entitled to meet by just
making findings on the challenges as made on the
evidence before the court.
In fact, there is an irony in that Post Office's
position was effectively to seek a trial that was
one-sided, when it didn't get it, to then complain on
the footing of apparent bias about that and then to
invite the court effectively to consider the recusal
application as if the trial had been one-sided, which it
plainly wasn't. We respectfully say that is not the
right approach either.
My Lord, as to the NFSP, can I just deal with that.
Much has been made of the significance of the NFSP.
MR JUSTICE FRASER: The NFSP are actually mentioned in terms
within the NTC.
MR GREEN: Precisely, they are mentioned in the contract and
they are mentioned in the opening, and they are
mentioned in the evidence of two witnesses,
Mrs Van Den Bogerd and Mr Beal. And we have dealt with
this in annex 2 at page 93 onwards, which is
{B9.4/2/93}.
MR JUSTICE FRASER: Paragraph 235, I think.
MR GREEN: Exactly. We have just traced through there. For
convenience, the witness statement of Mr Beal at
paragraph 36, 40 to 41, and emphasising the NFSP's
independence at 45; the witness statement of
Mrs Van Den Bogerd at 98:
"The NFSP has publicly supported Post Office's view
that Horizon is robust."
And your Lordship will remember that was supposed to
play in by way of relevant background to the burden of
proof in an argument that, I think, was not that easy
for us to follow about the background likelihood of
Horizon being robust and, therefore, not being the cause
of errors.
And then 235.3, in respect of litigation,
Post Office's written opening at paragraph 13:
"Furthermore, it should be noted that the NFSP,
which is the organisation which represents SPMs and
their interests nationwide, does not [underlined]
support this action and does not endorse the factual
premises of the claims."
So clearly put in issue. And then we have got the
relevant email which was disclosed during the trial,
with the reference to:
"Please note a signed agreement with the blood of
both myself and Paula is necessary on the future of the
NFSP before any agreement is granted on either NT or
other points."
And that is the Post Office's own document, agreed
it was only disclosed very, very late indeed, but it was
disclosed and I was able to put that to the witness in
any event.
Also, the challenge -- my learned friend is
essentially looking back at whether Mr Beal was telling
the truth about the publication of the grant framework
agreement in re-examination. And we have got the
reference to the transcript there at Day 6.
Then in closing, the assertion about the NFSP not
supporting the action or endorsing the factual premise
is repeated. It is now pitched a little less high:
"Whatever the organisation's precise degree of
independence ..."
Implicitly recognising the NFSP didn't look as
independent as they had started with saying it was, but
notwithstanding that qualification, Post Office still
relied on the involvement of the NFSP as a relevant
control mechanism for the purpose of its position on
implied terms, and that is set out, as your Lordship
sees, at paragraphs 345 to 346, which we have identified
there.
So it is quite wrong for the court to be criticised
in making a proper judicial assessment on the basis of
the evidence before the court, particularly in
circumstances where the disclosure was given to us
extremely late.
So in result, my Lord, we respectfully say that this
is an application which is wrongly premised on
a misunderstanding of the correct approach, does not pay
due heed to the context, either within the judgment,
immediate context of the actual text criticised or the
judgment as a whole, fails to have regard to how the
proceedings were in fact conducted and relies on the
court and the claimants now being told at this stage
that much of the evidence that we were put to the
trouble of challenging was all irrelevant. We find that
out now in a trial that happened last year.
And furthermore, the application proceeds on
a misunderstanding of the right approach in cases of
this sort, we say a fortiori where there is a designated
judge and a fortiori further where it is a managing
judge in group litigation.
For all of those reasons, my Lord, we say this is
misconceived and without merit.
Are there any points I can assist my Lord with?
MR JUSTICE FRASER: Yes, there is two questions that I would
like you to address, please, or two points.
One is the same as a point I asked Lord Grabiner
about. The Horizon Issues trial is well underway, and
there is, I think, half a day of factual evidence left.
What do you have to say about that? Were I minded to
recuse myself, what happens to that? Does it start
again in front of somebody else?
MR GREEN: I think it might have to start again. The
parties might be able to seek to agree whether the
evidence of particular witnesses was to be taken to be
their evidence.
MR JUSTICE FRASER: Absent an agreement, which, expressing
myself neutrally, can't necessarily be assumed in this
trial, all those witnesses would have to be called
again, wouldn't they?
MR GREEN: Indeed.
MR JUSTICE FRASER: And then the draft judgment number 3,
which is the focus of today, was distributed to the
parties on 8 March.
MR GREEN: Yes.
MR JUSTICE FRASER: I don't think this application was
issued until the 21st. Have I got those dates correct?
MR GREEN: Yes.
MR JUSTICE FRASER: And there are different references in
your skeleton, and the authorities about waiver and
delay.
MR GREEN: Precisely.
MR JUSTICE FRASER: Is there anything that you want to say
about that?
MR GREEN: We say it is extremely unsatisfactory that having
had the draft judgment for that period of time, this was
not raised with the court before the Horizon Issues
trial began.
We are not in a position necessarily to say that
amounts to a waiver, I don't think. But, in a sense,
having had the draft judgment for that period of time,
it was open to Post Office to tell the court in advance
of the Horizon trial that it would be making this
application.
MR JUSTICE FRASER: When was the first you learned of the
application?
MR GREEN: My Lord, that day. I was as surprised as
your Lordship. I think I learnt in court just before
lunch.
MR JUSTICE FRASER: Because it was Thursday, the 21st.
MR GREEN: It was Thursday, and I was cross-examining
Mr Godeseth, and I think at some point before lunch,
I was told this had been done. I had not seen it and
then my clerks printed it for us in chambers so I could
actually see it. I came with a bundle to court and
I think your Lordship got it at 5 to 2.
MR JUSTICE FRASER: I got it at 5 to 2, but then I was
sitting dealing with the trial, so ...
MR GREEN: The only observation on that is El Faraghy does
say that the correct approach is initially to write
a letter to the court to say, you know, "I think the
court should consider whether it is right that the court
continues to sit", and that very notably was not done.
There was an unheralded application at the end of week
two.
I think whether that amounts to a waiver or not is
probably a question for the court.
MR JUSTICE FRASER: Yes, all right.
Okay, the final point, and it might be that I don't
necessarily need to look at it, but I think the
strike-out application which led to judgment number 2
was supported by a witness statement of Mr Parsons,
which was his 9th.
MR GREEN: Indeed.
MR JUSTICE FRASER: Do you have a reference for that?
MR GREEN: My Lord, we absolutely do. I can tell you
exactly where it is because it is one of things that
I might have taken your Lordship to. It is
{B9.3/0.1/1}.
MR JUSTICE FRASER: Then beginning at page 1.
MR GREEN: It begins there. There is a passage there that
is relevant to one of the objections that my learned
friend made this morning, which is Mr Parsons' reference
to adverse publicity, which was the basis for
your Lordship's observations in the admissibility
judgment, which we respectfully say your Lordship didn't
completely forget when you were considering matters in
the Common Issues judgment.
MR JUSTICE FRASER: The only reason for asking for the
reference is in case I decide to read that again, but
you wouldn't discourage me from reading it again.
MR GREEN: Absolutely not, my Lord. And in fact, there is
an additional point to make on that, which is that we
faced precisely the same approach from Post Office in
relation to that application as we did to this.
MR JUSTICE FRASER: By "that application", you mean?
MR GREEN: The strike-out application, which is a serious
application, especially the timing of it when we were
trying to prepare for trial.
There were no particulars given of the parts of
evidence that were said to be objectionable, so I think
it was 5 September and I think my learned friend
Mr Warwick attended in order to obtain from the court
a direction, which the court gave in an order, that they
provided particulars.
So we have had the same modus operandi on two fairly
serious matters, and I leave the matter there, my Lord.
MR JUSTICE FRASER: All right. Unless there is anything
that you want to add.
MR GREEN: My Lord, no.
MR JUSTICE FRASER: Thank you very much.
Lord Grabiner, just on that point, so I don't
disrupt the flow, I assume you don't have any objection
to me looking at the 9th witness statement of Mr Parsons
again in due course.
LORD GRABINER: Certainly not, I am only too pleased if
your Lordship looks back at whatever you want to look
at.
MR JUSTICE FRASER: Thank you very much.
(3.55 pm)
Reply submissions by LORD GRABINER
LORD GRABINER: Can I deal with the point raised at the end
in relation to the delay point, if I can call it the
delay point. My understanding is that we received the
draft judgment on the Friday immediately prior to
commencement of the Horizon trial on the Monday.
I am afraid, standing here now, I don't know what
the dates are.
MR JUSTICE FRASER: It is the 8th. It was sent out on
Friday, the 8th. Monday, the 11th, was oral openings.
LORD GRABINER: There was a passage of time between then and
the decision that was communicated to make this
application. I need hardly point out that this has
been -- this is regarded as an extremely serious
application to be making. It was made at board level
within the client and it also involved the need for me
to be got up to speed from a standing start.
And I am not the only judicial figure or barrister
that has looked at this with a view to reaching that
conclusion. It has also been looked at by another very
senior person before the decision was taken to make this
application.
The delay, such as it is, is very, very tiny in the
context of the seriousness of case that is being put
forward.
We had no control over the commencement of the
Horizon case, obviously, because that was already
predetermined by the arrangements that were then in
place.
MR JUSTICE FRASER: I suppose one might observe an
adjournment could have been requested of a week or
something.
LORD GRABINER: It may be. I just don't know because
I wasn't involved at that stage. I have only been
involved just for a few days, literally.
MR JUSTICE FRASER: Understood.
LORD GRABINER: The other point that my learned friend made
right at the end, but if I can deal with it now, is in
relation to the El Faraghy case, which he said: well, it
would have been much more appropriate for us to have
communicated by letter with the court rather than to do
what we did. You will find that case, I think, in
tab 15.
MR JUSTICE FRASER: Yes.
LORD GRABINER: Your Lordship may remember this one. This
is a postscript of Lord Justice Ward, paragraph 32, the
very last paragraph of the judgment. Does your Lordship
have that?
MR JUSTICE FRASER: Yes, the one that says recusal
applications are much more frequent than they used to
be.
LORD GRABINER: Yes, and he says:
"It is invidious for a judge to sit in judgment of
his own conduct in a case like this, but in many cases,
there will be no option but that the trial judge deal
with it himself or herself."
Pausing there, I would obviously rely upon that:
"If circumstances permit it [and I rely upon that as
well], I would urge that, first, an informal approach
should be made to the judge, for example by letter,
making the complaint and inviting recusal."
I should say careful consideration was given to
those observations before the decision was taken to do
what was done, and one of the --
MR JUSTICE FRASER: Issuing the application or asking me to
hear it?
LORD GRABINER: Going first to the court with a letter in
the form that is described there. And the decision was
taken not to adopt that approach simply because
your Lordship is the designated managing judge of the
litigation with an enormous knowledge and understanding
of the whole of the background history, and the idea
that one could have mounted and dealt with today, as we
have dealt with today, in front of a different judge is
a little bit unlikely.
So there were all those circumstances to take into
account. It would also have been open to your Lordship,
had you been so minded, actually to refer the matter to
another judge, if you had wished to do so.
But for all of those and some of those reasons, the
procedure that we adopted is what we adopted. But so
that your Lordship can be under no misunderstanding as
to how it came about that we are here in the way that we
are here. And I do not accept, if it is being
suggested, that the Lord Justice Ward approach is the
only approach and that is the one that we should have
adopted. I don't accept that, and nor does
Lord Justice Ward say that.
So far as my learned friend's submissions are
concerned, apart from those closing observations, what
has happened here is that my learned friend has simply
looked broadly at the judgment and he has taken some of
the big picture questions, and he has sought to show
that those areas have been effectively traversed by
Post Office's evidence and by cross-examination and so
on.
Now, in my submission, that approach is wrong for
two reasons. First of all, Post Office made clear
throughout that it did not accept that this material was
relevant to the Common Issues trial. That has been said
more times than I can recall. As everybody in this
court knows, that has been repeatedly stated all the way
through and we have never waived from that position.
Secondly, the fact that during the trial,
Post Office felt that it had to deal in a limited way
with matters which were not relevant to the
Common Issues does not make those matters relevant to
the Common Issues and, most importantly, it does not
enlarge the definition of the Common Issues.
Whether a given finding was necessary to decide the
Common Issues is a question which can only be answered
by reference to the relevant paragraphs of the judgment,
which is why I painstakingly -- and I apologise for
having done it -- but I painstakingly went through those
paragraphs because, in my submission, that is the only
proper way to analyse the issue and the concern that my
clients have.
And the point is that our detailed criticisms have
really not even been met by the other side. They never
went through those paragraphs and, indeed, that is
unsurprising, because they couldn't.
For example, if I can just summarise the points on
the submissions that we have been making, that none of
the arguments put forward by my learned friends would
justify findings on a whole range of matters. And
I will just rattle off the paragraph numbers and the
topics without going back to them, because we have
already been there.
But, for example, findings on Post Office's
knowledge of problems with Horizon: paragraphs 541, 543,
1115. Whether the Post Office sent threatening letters:
paragraphs 222, 462, 7231. Or the general findings as
to the inadequacy of the suspension processes:
paragraphs 403, 514, 517. Or the poor quality of the
training: paragraphs 193, 437, and 955.
And, of course, the reason my learned friend did not
go to the paragraphs was because he would need to
justify the findings and conclusions to which
your Lordship arrived, and he knows that he can't. And
he knows that he can't because he knows that they go
well beyond the issues, which is why he simply
cherrypicked his way through the argument throughout his
submissions to your Lordship.
Now, can I just -- I hope in the order in which the
points were made. I respectfully agree with an
observation that fell from your Lordship at the opening
of my learned friend's submissions when you simply said
to him that the way to test the validity of the argument
presented to the court was for the observer to look at
the judgment only, and in my respectful submission, that
is exactly the correct approach. I am not suggesting
that that person doesn't have full knowledge, they would
have full knowledge.
MR JUSTICE FRASER: Of all the proceedings.
LORD GRABINER: Absolutely, and I accept all of that, but at
the end of the day, what is involved here is the need to
examine the judgment. That is what this is all about.
Now, next, my learned friend drew attention to
paragraphs 93 and 94 of our generic defence. And the
reason for doing that was because he used it as a basis
for the proposition that thereby my clients had enlarged
the Common Issues. And he did that, as I say, through
reference to those pleadings, but he did not refer
your Lordship to the voluntarily particulars of
26 September 2018, which are in -- I don't need to turn
them up -- {B4/8/1}.
MR JUSTICE FRASER: They are also mentioned in judgment
number 2, I think.
LORD GRABINER: I am sure they are, and your Lordship is
inevitably ahead of me on that, but I am grateful.
But the point about those voluntary particulars is
that they confine the matters in 93 and 94 to the
contract issues, so that doesn't really help my learned
friend at all.
Then my learned friend referred to the post-trial
note, which he put up on to the screen. That is
document {A/18/1} and that document exactly states the
case that I have sought to make today and reflects the
submissions that I have been making to your Lordship.
If you look through that, you will see that really
is a nutshell summary of the arguments that I have been
seeking to make today to your Lordship.
Now, the peculiarity of this case -- step back. One
of the points that my learned friend came perilously
close to making was that because this is group
litigation, the prospects of there being a successful
complaint along the lines that we make would be just
about zero because, effectively, a group litigation
exercise with a judge in charge of the litigation would,
somehow or other, secure a much broader permit to do and
say the things that are said and that, somehow or other,
the apparent bias concept would then fall away as being
either marginal or unlikely ever to happen. Indeed, he
repeatedly made the point that there was no case on the
point and made some play of that.
Well, of course, the peculiarity of this case is the
fact that there are successive trials which have been
pre-arranged, and the reason why the apparent bias
argument might never have arisen in any other case, but
whether it has or not is supremely irrelevant, but the
reason why it is relevant here is because those
successive cases are specifically geared to dealing with
matters such as Horizon, breach of contract, damages and
all the rest of it, limitation, I think, and so on.
So it is precisely the kind of context where
somebody might be getting up to say: well, actually, in
this kind of context, there is a real danger or real
possibility that the apparent bias argument may succeed,
simply because perhaps not enough care has been gone
into the conclusions.
And I say that with great respect, because I'm not
suggesting for a moment that this was a simple case to
deal with or a simple series of cases to manage. It is
a difficult exercise, no doubt about it, and I am
entirely sympathetic. But I do respectfully submit that
given that context, it is very, very important indeed
that the matters that are made the subject of the first
judgment do not trespass upon those matters that are yet
to come.
That is the reason why this argument, whether or not
there has been some previous case, is a perfectly good
argument, and there is no force or validity in the
proposition that because there is not any history of
similar cases that, somehow or other, this is an easy
way in and the judge doesn't have this obligation to
deal with it.
MR JUSTICE FRASER: I think I have made it clear that the
fact that this may or may not have been the first time
doesn't make any difference.
LORD GRABINER: Of course not. It was just a bad point from
my learned friend, which I am sure he understands, and
it does happen to all of us.
The other point he made was by reference to his
paragraph -- 82, it is on page 82 of my learned friend's
skeleton argument. It is the quotation of
paragraph 592, which is taken from our submissions.
Does your Lordship have that handy?
MR JUSTICE FRASER: I do. Can you just give me the
paragraph number again?
LORD GRABINER: Paragraph 592, but on page 82 of my learned
friend's skeleton.
MR JUSTICE FRASER: Yes, I do have that.
LORD GRABINER: The only point I want to make about it is
that it obviously is referable only to the contract
terms {B9.4/2/82}:
"The central fact about Mr Abdulla's evidence cannot
be avoided: he lied frequently and brazenly. He began
by denying that, as his interview records, his previous
experience included tallying up figures. He then
claimed that he read the first and second paragraphs of
a letter [and that of course is the contract provision]
and then what appeared on its second page, but missed
out ..."
Et cetera, et cetera. So the point about that
passage is that it is concerned about the contract
provision.
MR JUSTICE FRASER: That is, Lord Grabiner, but the first
sentence after the struck through passage says:
"He said that he was given the impression in the
interview held following the revelation of his
wrongdoing that if he paid back the money, he would be
reinstated; that was untrue."
So that is a point going purely to the truth of the
evidence that he gave about post-contractual matters.
LORD GRABINER: Yes.
MR JUSTICE FRASER: Then the next two sentences follow.
LORD GRABINER: I take your Lordship's point, but again, it
comes back to a point that I sought to make earlier.
And as I have said, it is not an easy issue, but the
fact is that it should have been confined to the
contract issue matters that were in trial 1, and that is
precisely what that post-trial written document was
about that I made reference to a few minutes ago. That
is precisely what it says.
MR JUSTICE FRASER: Understood.
LORD GRABINER: Then there is the separate matter which
I think engaged some discussion between my learned
friend and your Lordship. It was in relation to the
impropriety involved in relation to the witness
statements. My learned friend is perfectly correct that
there were those wonderful days where one stood up in
court and called the witness and neither the judge nor
probably often the barristers even knew what was going
to come out of the witness' mouth. There was something
called a proof of evidence then, but you spent most of
your time striking it through as the witness failed to
come up to proof. But all that world, regrettably in
some ways, has gone by.
That has given rise to the debate which
your Lordship referred to, quite rightly, as to the
usefulness of these documents, first of all because they
are overlong and, secondly, you know, they make
references to loads of documents and are replete with
tonnes of quotes from them. They are hundreds of pages
long in any meaningful commercial trial.
At the end of the day, they may not be actually the
evidence of the individual. I completely understand all
of that, but that does not justify the insertion into
this judgment of the suggestion that that is what
happened in this case. I know it is a nice,
controversial subject, but it doesn't justify reaching
a conclusion, expressly or impliedly, that that is what
happened in this case.
It is a very serious criticism of professional
people's behaviour, even more so in this case because my
understanding is that the suggestion was never even put
to any witness. In other words, it was never said to
a witness, "That is not your evidence, that has been
concocted for you by your solicitor or, worst still,
your barrister", as the case may be.
So, in my submission, it was an entirely
inappropriate passage or couple of passages actually to
be inserted into the judgment.
Harb was interesting, only because I was in the
case, but it is very difficult to imagine what relevance
it had to the matters that your Lordship is presented
with here.
The key point, in my submission, is that everybody
knew that there were going to be further trials, and
that's why enormous care was necessary for the
production of the first judgment on the basis that it
might well impact upon key facts or key issues which
would inevitably arise in the later case.
On the question of whether or not there was
disclosure or evidence, my understanding is that there
has been no disclosure and no evidence or if there has
been any, it is only of a limited value at the moment
on, for example, investigations, on accounting by
individual postmasters, on transaction transactions. No
doubt there will be associated witness statements as
well, because these are matters yet to be determined in
future trials.
The only other point that I want to mention, my
final point, which will be a pleasing word for the
listeners, is in relation to the National Federation.
It is true, as I think your Lordship said, that the NFSP
may have been referred in the contract, but that, with
great respect, does not justify the conclusions that
there was some kind of conspiracy going on as between
the Federation and Post Office.
It doesn't justify making reference to that in the
judgment or speculating about the possibility of the
Federation changing its website in the course of the
trial. The fact that there is a reference in the
contract to the Federation simply means that insofar as
that is relevant to the contract issues that arose in
the first trial, that is the extent of it.
But to go on and make that explicit conclusion about
the possible bad nature of the relationship between the
Federation and Post Office is revealing, it is damaging.
And my submission, my respectful submission, is that it
might actually and would actually lead an independent
objective observer to the conclusion that it would be
very difficult, if not impossible, for your Lordship
fairly to try these later cases.
So those are our submissions.
MR JUSTICE FRASER: Thank you very much indeed.
MR GREEN: Might I make one point of clarification, in case
my learned friend wants to address it? It is a very
small point.
MR JUSTICE FRASER: Go on.
MR GREEN: It is just the relevance of the group litigation
point, that one may expect greater judicial interest and
more judicial concern about the respective parties'
approach to litigation and observations of that type
from a managing judge in ongoing litigation than one
would from a judge trying a unitary claim, and that
chimes with the sort of thing that I referred
your Lordship to in the authority.
MR JUSTICE FRASER: I will hear what Lord Grabiner has to
say, and I'm not going to have endless back and forth,
because Lord Grabiner is entitled to have the right of
reply.
MR GREEN: Of course.
LORD GRABINER: If I may respond to that, and I can do it by
showing your Lordship one paragraph in
Lord Justice Mummery's judgment in a case called
AWG Group v Morrison. It is in {B9.5/11/1}, I think.
MR JUSTICE FRASER: Yes.
LORD GRABINER: It is at paragraph 29 {B9.5/11/10}.
MR JUSTICE FRASER: This was the witness who was known to
the judge, I think.
LORD GRABINER: Yes, I think you are right.
MR JUSTICE FRASER: Paragraph 29, yes.
LORD GRABINER: My Lord, yes, Lord Justice Mummery. Does
your Lordship have that:
"While I fully understand the judge's concerns about
the prejudicial affect that his withdrawal from the
trial would have on the parties and on the
administration of justice, those concerns are totally
irrelevant to the crucial question of the real
possibility of bias and automatic disqualification of
the judge. In terms of time, cost and listing, it might
well be more efficient and convenient to proceed with
the trial, but efficiency and convenience are not the
determinative legal values: the paramount concern of the
legal system is to administer justice, which must be,
and must be seen by the litigants and fair-minded
members of the public, to be fair and impartial.
Anything less is not worth having."
If my learned friend's submission comes to the
proposition that because this is group litigation, the
court has, so to speak, free range, although I am sure
he wouldn't put it that widely, but the court has more
flexibility to circumvent the problem that I am
concerned with, then he is absolutely wrong, and the
correct approach is summarised there by
Lord Justice Mummery and your Lordship should bear that
in mind.
I am grateful to my friend for reminding me of that
passage. My Lord, those are my submissions.
MR JUSTICE FRASER: Thank you very much indeed. Bear with
me one second.
This is an application that I recuse myself both
from being the managing judge in group litigation and
also that I bring the Horizon Issues trial, which is
currently underway, to an end. The application is made
in the midst of the Horizon Issues trial, which started
on 11 March.
I am acutely conscious that parties need a rapid
answer when applications are made in the course of an
ongoing trial, but I am going to reserve my judgment on
this application. I am going to produce a written
reserved judgment, which will be judgment number 4.
I will endeavour to produce that written judgment as
soon as possible. It's highly unlikely to be this week,
so I am going to explain to the parties now that
judgment number 4 will not be handed down before
Tuesday, 9 April, which is next Tuesday at 2.00 pm. But
the parties will be notified by my clerk on Monday,
8 April either confirming that time, either of
a different time on that day or a different date and
time, if that date is not going to be achievable. So
there will be an update provided on Monday.
Depending upon the outcome, different matters will
need to be dealt with. That obviously depends whether
I recuse myself or not. I am not going to go into what
those other matters might be, but they can be dealt with
on the day that the judgment is handed down.
Thank you all very much for your attention. Thank
you for your helpful submissions, to all the counsel
involved, and also thank you to the electronic trial
bundle provider for re-activating my access to the
electronic trial bundle.
Anything necessary?
LORD GRABINER: Just to thank your Lordship for dealing with
it in this way.
MR JUSTICE FRASER: Pleasure. So until an indeterminate
date and time, but hopefully the first part of next
week.
(4.20 pm)
(The hearing was adjourned until a date to be fixed)