Wednesday 10 April 2019

Bates v Post Office: recusal judgment transcript

This is the transcript of the discussion between J Fraser and the Post Office and claimants' barristers which took place in court 26 of the Rolls Building immediately after the judge handed down his decision not to recuse himself from the ongoing Bates v Post Office group litigation.

                                          Tuesday, 9 April 2019
   (2.00 pm)
   MR JUSTICE FRASER:  This is an application by the
       Post Office to have me recuse myself as the managing
       judge from the litigation and to abort the
       Horizon Issues trial, which started on 11 March.
           I have done a written judgment on the application,
       which my clerk will now provide to the parties.  For the
       reasons included in that written judgment, I am going to
       dismiss the application.
           There are two copies in files for each set of legal
                     (Judgment handed down).
           There are also extra copies in court for members of
       the public, should they wish to have them.  The judgment
       is also going to be put on BAILLI this afternoon, that
       is with the neutral citation [2019] EWHC
       871 (QB).  It is also going to be put on the Judicial
       Office website, which is  If anybody
       would like an emailed copy, if they give their email
       address to my clerk at the conclusion of today's
       hearing, then she will email you a copy this afternoon.
           So the issue arises in terms of any consequential
       applications and directions in respect of resumption of
       the trial.  So would either of you like to say anything?
   MR GREEN:  My Lord, we would obviously have an application
       for costs of the application.
   MR GREEN:  We did write on the eve of the application to the
       Post Office on a without prejudice case, save as to
       costs basis, to invite them to withdraw their
       application on the basis that we would not, provided we
       heard the following day, make any claim for our costs
       expended up to that point.  That was not an invitation
       which was accepted.
   MR JUSTICE FRASER:  What's the date of that letter?
   MR GREEN:  That was the dated 21 March.
   MR JUSTICE FRASER:  On the day it was issued.
   MR GREEN:  On the day it was issued, that evening.  They had
       obviously had not provided particulars.  They were
       obviously going to have to reconsider that and we
       invited them, in the course of doing so and before we
       had to go through the particulars they then did provide,
       to withdraw the application.
           And on that footing, we'd invite the court to make
       an order for the Post Office to pay the claimant's costs
       on an indemnity basis.  We made them an offer, they
       didn't accept it and we have done better than the offer.
   MR JUSTICE FRASER:  Right, Lord Grabiner.
   LORD GRABINER:  I want to say something about the costs
       first and then -- so first of all, I don't know if your
       Lordship would be proposing to deal with them on an
       assessment basis.
   MR JUSTICE FRASER:  It seems to me there are three issues in
       respect of costs.  First is incident of costs, the
       second is summary assessment or detailed assessment, and
       the third is the basis of assessment.
   LORD GRABINER:  Well, I mean --
   MR JUSTICE FRASER:  I have had schedules from both sides in
       respect of a summary assessment.
   LORD GRABINER:  So I don't know if my friend is pressing for
       a summary assessment today.
   MR GREEN:  My Lord, I would invite your Lordship to consider
       making a summary assessment, but if you were minded not
       to do that, to make an order for a detailed assessment,
       but with a substantial payment on account, which may be
       the easiest way of dealing with the matter.
   LORD GRABINER:  All I want to say about the costs' position
       is really this: that your Lordship has seen their figure
       for the day, which is about £100,000 more than ours.
   MR JUSTICE FRASER:  I think theirs is -- just remind me.
   LORD GRABINER:  314 against 212.
   MR JUSTICE FRASER:  And yours is 212.
   LORD GRABINER:  We had to prepare the application and its
       associated documents.  They merely had to respond.  And
       there is a very short passage of time between 21 March
       and 3 April.  They also appeared by five counsel.  We
       appeared by three.  I wouldn't have thought -- well,
       a matter for your Lordship, what I think is irrelevant,
       but five would be --
   LORD GRABINER:  -- jam and cream on top.
           Moreover, from the sheets that your Lordship has
       been provided with, it would appear that they are
       claiming in respect of four fee-earning solicitors.  We
       are claiming in respect of two.
   LORD GRABINER:  They are also claiming in respect of two
       hearings on 21 March and 27 March.  On 21 March, they
       were here in any event.  I think they were already in
       front of you.  And on 27 March, there was what I would
       respectfully suggest was a rather pointless exercise
       when they came across and asked your Lordship to make
       further orders, I think, for disclosure, which I think
       your Lordship rejected.
   MR JUSTICE FRASER:  I think it was for more evidence, but
       I did reject it.
   LORD GRABINER:  But, in my submission, neither of those days
       should figure in the assessment exercise.
   LORD GRABINER:  So I am content if your Lordship does it
       either on an assessment detailed basis or on an
       assessment on the day basis, as long as you take account
       of those points that I have been -- just been making.
           And then I also want to make an application for
       permission to appeal, but your Lordship may want to hear
       my friend on the costs point first.
   MR JUSTICE FRASER:  I will deal with costs first and then
       I'll come on to your application.
           What I am minded to do is I am minded to make an
       order for the claimant to have their costs of the
       application, because that is consequential on the event,
       to be subject to a detailed assessment and to leave the
       questions of whether that should be on a standard or an
       indemnity basis and whether or not there should be
       a payment on account to be dealt with on a date to be
   MR GREEN:  I am grateful.
   MR JUSTICE FRASER:  So you will have an order in your favour
       as of today for the costs of the application, and those
       other matters can be swept up and dealt with in due
       course.  I am sure they won't be forgotten.  So that
       deals with the costs.
           I'll deal with your application for permission to
       appeal, Lord Grabiner, now.
   LORD GRABINER:  I would -- I should have objected to the
       indemnity suggestion, but that's academic now in view of
       what your Lordship has just said.  So that can be dealt
       with on another day.
           In my respectful submission, this is a suitable case
       for permission to be granted to the Court of Appeal.
       I have to demonstrate that there is a real prospect of
       success.  In my respectful submission, there is one.
       And your Lordship is fully familiar with the story, and
       I do ask for that permission.
   MR JUSTICE FRASER:  Is there anything you would like to add
       other than real prospects of success?
           Permission to appeal is refused.
           That then takes us on to consequential directions.
       In my judgment, there's -- and I'll just make the
       following observations and then each of you can address
       me on them.
           There is a balance that has to be struck between the
       fact that this is -- this application was made in the
       middle of an ongoing trial on the one hand, with the
       fact that the Post Office has the right to seek
       permission to appeal from the Court of Appeal on the
           I am, therefore, subject to what each of you have to
       say, minded to approach it in the following way, and
       I'll just tell you what it is in outline terms and you
       can then either persuade me or explain to me that
       I should adopt a different course.
           There's only half a day's evidence of fact left and
       in my judgment, that should be swept up and dealt with
       as soon as possible.  There was, in any case, then going
       to be a delay or an interval before the evidence of the
       experts was going to be heard.  And it seems to me that
       that interval now has to take account of the fact that
       the Post Office will seek or says it will seek
       permission to appeal, and the consequences that go with
       that, so it seems to me, that the experts can't possibly
       be heard until a period some time after the Easter
       vacation ends.  Term starts again on 1 May.
           I am minded to order the Post Office to issue an
       application or issue its application for permission to
       appeal and its appeal within an extremely short
       timeframe, but that still means that there would need to
       be a period of time for the claimants to, if it wishes,
       comply with the Practice Direction to Part 52.
           So that's my outline thinking.  Would either of you
       like to address me on any or all of those points, and in
       whichever order?
           Mr Cavender.
   MR CAVENDER:  My Lord, in my submission, it would be quite
       wrong, in light of where we are, to continue with the
       Horizon trial at all, as a matter of principle.  Your
       Lordship has dismissed the application.  It is a serious
       application for which we have told your Lordship we are
       going to seek permission to appeal.  We will obviously
       do so urgently, and your Lordship has indicated you
       would give us limited time anyway.
           And given the result of that is obviously, by
       definition, outstanding, at least until the permission
       application be heard, in my submission, it would be
       obviously sensible to continue the adjournment or stay
       you have in place.  And to be tempted to hear one or two
       witnesses and go along a little bit because of neatness
       almost is, in my submission, wrong in principle.
           If there is a realistic prospect -- in my
       submission, there must be -- of the Court of Appeal
       reviewing this, then the sensible thing to do is hold
       matters as they are and for the Horizon trial, both,
       that is, the balance of the factual witnesses and the
       expert evidence, to await the outcome of that process,
       whatever it is.
           Obviously if that process comes to an end and
       permission to appeal is refused, then of course one is
       in a different ball game then.  You then have to come
       back to your Lordship for directions to get the thing
       back on track.
           Otherwise, my Lord, the risk is this: if we proceed
       as your tentative suggestion indicates, then you have
       the prospect of an ongoing appeal before the Court of
       Appeal unheard.  You have then very expensive expert
       evidence starting to be heard, which is then potentially
       tainted.  In the event that the trial has to start
       again, you can imagine a situation where one or other
       party decides that the witnesses and the way they've
       gone, et cetera -- it is not beyond the bounds of
       possibility they might want to review that or at least
       the evidence will start to be tested in a way.
           And, in my submission, it is much neater to keep
       that evidence, very expensive, careful evidence, clean
       and neat, to be heard together in a situation where
       there's no risk of it being half-heard and then the
       whole process coming to a halt.  That is a recipe, in my
       submission, for disorder and potentially huge wasted
           I mean, at the end of the day, if this trial does go
       on with factual and expert evidence, and then the
       results of that are going to be overturned by a recusal
       application, that surely must also fit into the balance
       of the overriding objective and how sensibly to deal
       with this.
           So for all those reasons, my Lord, in my submission,
       the sensible thing to do at this stage is to -- for us
       to apply for permission to appeal, see how that goes.
       If that is unsuccessful, then the results are pretty
       clear.  If it is successful, in my submission, the
       results are equally clear and it would be quite wrong in
       principle to continue with this trial.
   MR JUSTICE FRASER:  If the results are as the Post Office
       contends, any consequential activity as a result of that
       is going to be dictated by the terms of their order, it
       is not going to be up to me.
   MR CAVENDER:  Sorry, your Lordship lost me.
   MR JUSTICE FRASER:  You were explaining the -- you said you
       were dealing with the different contingencies on your
       application for permission to appeal.  One was if it was
       unsuccessful, then the results are pretty clear.  If it
       was successful and you were given permission, then there
       would obviously be directions given by the Court of
       Appeal in respect of that, wouldn't there?
   MR CAVENDER:  There would, but one of them might be to stop
       the trial that may then be ongoing.
   MR JUSTICE FRASER:  I understand that.
   MR CAVENDER:  So the fact that is a possibility would lead,
       in my submission, to the thinking: why would we put
       ourselves in that position with all the wasted costs and
       difficulty that may cause?  In my submission, there is
       no good reason to do that, unless my learned friends can
       give you one, and a number of reasons I have given you
       why that would be a bad idea.
   MR JUSTICE FRASER:  Understood.
   MR CAVENDER:  So those are my submissions.
   MR JUSTICE FRASER:  All right.
           Mr Green.
   MR GREEN:  Your Lordship appreciates we wouldn't have
       started here as claimants.  Given where we are,
       I wouldn't disagree with my learned friend that
       actually, we would have no objection to having those
       last two fact witnesses just before the experts.
   MR JUSTICE FRASER:  There is a period imposed though for
       there to be a gap between the fact and the expert
   MR GREEN:  My Lord, yes.  What I am suggesting is that we
       might -- that was on the premise that we would be able
       to consider the fact evidence.
   MR JUSTICE FRASER:  One of them is a potentially important
       technical witness from Fujitsu --
   MR GREEN:  My Lord, that's right.
   MR JUSTICE FRASER:  -- whose evidence will need -- well, may
       need to be taken into account by the experts before they
       give their evidence.
   MR GREEN:  What we wondered was whether it might be possible
       for the court to accommodate on a Thursday, before we
       resume with the experts in due course, that evidence so
       it is fresh in the court's mind, rather than do it at
       some point next term.  So I think in terms of
       efficiency --
   MR JUSTICE FRASER:  Let me be completely clear with all the
       parties.  The Court of Appeal has been notified of the
       potential of a pending appeal in this matter, which --
       it is not for a first instance judge to dictate to the
       Court of Appeal how they deal with things in terms of
   MR GREEN:  Of course.
   MR JUSTICE FRASER:  But they have been notified that it is
       in the context of an ongoing trial.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  So there is no question that the
       experts' evidence cannot start sensibly this side of
       Easter, for at least three reasons.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  One is Mr Cavender is right, that expert
       evidence ought to be heard together.  Two, there needs
       to be a decent interval so that the Court of Appeal have
       an adequate period of time to consider the question of
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  And three, there is not enough time to
       deal with the experts this side of Easter anyway.
   MR GREEN:  No.
   MR JUSTICE FRASER:  So expert evidence is effectively
       a preordained issue.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  The question of the last expert -- the
       last witnesses of fact, who were going to be just
       fractionally longer than two hours, is rather different.
       The majority of the evidence of fact has been heard
       already.  The period of time within which the
       Post Office considered and decided that it was going to
       issue this application was being done in parallel with
       the evidence of fact.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  If that's resolved this side of Easter,
       then both the experts know the totality of the evidence
       of fact before they even come to give their evidence,
       which reduces the risk of further delay down the line.
           And thirdly, it is important -- it is not a question
       of neatness.  Mr de Garr Robinson was entirely neutral
       on the afternoon of 21 March whether we continued that
       afternoon and dealt with all the witnesses of fact in
       any event, which is another feature.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  So as far as I'm concerned, the expert
       evidence and the witness evidence don't necessarily fall
       to be considered in the same way.
   MR GREEN:  No, my Lord, no.  The only observation I was
       making was that given that we couldn't do the experts
       now and we might have to await the outcome of at least
       the permission application to the Court of Appeal, and
       we'd have to be coming back later anyway, we would
       certainly have no objection to dealing with the fact,
       that little element of fact evidence we have left,
       shortly before we begin the experts.
   MR JUSTICE FRASER:  You might not, Mr Green.  However, the
       trial's underway.
   MR GREEN:  No, I understand.
   MR JUSTICE FRASER:  My intention is to resume it, taking
       account of the practical issues.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  And your suggested course of action does
       open the door to risk of further delay, which is that
       the experts say they need longer to consider the
       cross-examination, for example, of Mr Parker because it
       has only just occurred.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  They might, for example, want to have
       a meeting about it.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  So is there anything you would like to
       add to what you've said?
   MR GREEN:  My Lord, not in relation to that.  And obviously,
       we agree.  I discussed it with my learned friend,
       Mr Cavender, and we agree that, for reasons of the
       balance that your Lordship adverted to, it wouldn't be
       wise necessarily to have the experts come back until the
       permission application has been resolved.
   MR JUSTICE FRASER:  Well, there's a solution to that.  Let
       me just check.
           Mr Cavender, is there anything you would like to
   MR CAVENDER:  Yes, I would like to reply to my learned
       friend's submissions, if I may.  My learned friend and
       I, before we came in, had discussed this and reached
       a joint position that whatever the outcome, that the
       party that lost would seek permission and in that
       situation, it was sensible that the trial generally
       remained stayed, as, in fact, it is.
   MR JUSTICE FRASER:  It is adjourned.
   MR CAVENDER:  Adjourned.  My learned friend at your
       Lordship's instigation is now trying or taking your
       Lordship's suggestion perhaps you deal with it expert
       evidence on the one hand and factual on the other.  But
       both are subject to the same point of principle, that
       there is a real risk that the Court of Appeal will give
       permission and may recuse your Lordship, in which case,
       continuing on with the trial in the face of that
       possibility is, in my submission, wrong in principle.
           As my learned friend says, very sensibly, if
       permission is not granted, then this will need to come
       back in any event.  And as my learned friend also said,
       there is some connection between at least the evidence
       of Mr Parker on technical issues and the experts.  And
       in many ways, that being fresh has many advantages as
       it, you know, being one done before Easter and one
       coming in sort of May or June or some other time.
   MR JUSTICE FRASER:  Well, after Easter is May.
   MR CAVENDER:  Quite, but at the end of the day, the idea of
       restarting the trial just for a little bit of factual
       evidence, in my submission, is -- and I don't shy away
       from the submission -- for the sake of neatness really
       when, in fact, the point of principle is that if there
       is a real possibility, and, in my submission, there is,
       of the Court of Appeal upholding the recusal objection,
       then to go on in the face of that possibility is wrong
       in principle, unless there is some very, very overriding
       benefit that can be identified to counteract it.
           In my submission, your Lordship has come up with one
       potential, which is, well, it may result in further
       delay.  But, in my submission, I am not sure that's
       right.  All one is talking about is, it would seem,
       I think your Lordship said a couple of hours immediately
       before you called the experts.  That, in my
       submission -- if it is a benefit at all, it is a very
       small benefit and when you put that against the
       potential prejudice and waste of costs which may be
       involved in that, in my submission, the answer to that
       balancing exercise is obvious.
           So, my Lord, that's what we say about that.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  My Lord, I should say in fairness that it was our
       view, before we heard your Lordship's proposal, that
       everything would go off together until permission had
       been -- I just want to --
   MR JUSTICE FRASER:  It is not a proposal in the sense that
       I am brokering some sort of three-way agreement.
   MR GREEN:  My Lord, no, but your Lordship invited us --
   MR JUSTICE FRASER:  I thought it was important to give you
       an idea of the -- because obviously, the timetable for
       the resumed trial is something that I have probably been
       thinking about a little bit longer than the parties,
       because I've known the outcome of the recusal
       application for a little bit longer than you two have.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  And I appreciate you all came into court
       not knowing who had won and who hadn't.
           I am going to explain what I am taking into account
       and then I am going to explain what I am going to do.
           It seems to me Mr Cavender's submission that it is
       wrong in principle to finish the evidence of fact
       ignores two fundamental points.  One is that the
       evidence of fact is practically completed.
           The second is the subject matter of Mr Parker's
       evidence.  Mr Parker's evidence goes to remote access to
       branch accounts, which is something that featured very
       heavily in the cross-examination of the other witnesses
       in the Horizon Issues trial before it came to an end and
       in respect of which Mr Parker has had to serve three
       separate witness statements.
           The evidence that emerges on his cross-examination,
       whatever that evidence might be, is undoubtedly
       something that the experts are going to need to
       consider.  They might even want to have a further
       meeting about it.
           I am going to order that the Post Office file its
       appellant's notice by 4 o'clock on Thursday of this
       week.  Taking into account the provisions within the
       Practice Direction to CPR 52, the claimants in any event
       have a 14 day period to provide their observations on an
       application for permission to appeal.
           I am also taking account of the Easter vacation,
       which is effectively two weeks, and the fact that the
       first day of term after Easter is not until 30 April.
           So I am not going to commence the expert evidence
       until 15 May.  That gives the Post Office, should it
       wish, ample time to make representations to the Court of
       Appeal about whether or not that should, in fact,
       commence on that date.  And it should also -- it also
       takes into account a desire not to put unnecessary
       pressure of time on the Court of Appeal.  The time
       estimate for the expert evidence remains as it was
       before, which is effectively two trial weeks or a trial
       week for each of them.
           So far as the evidence of fact is concerned, which
       is about two hours' worth, it seems to me that that has
       to be dealt with as soon as possible.  I am not going to
       order that it happens tomorrow, but the last day of this
       trial -- the period was the Thursday of this week and so
       the Horizon Issues trial will resume with the sole
       purpose of resolving the final two witnesses of fact
       from the Post Office on Thursday of this week, which is
       the 11th, at 10.30.
           Mr Green, you remain restricted to the amount of
       time you would have had and on my analysis, I think
       that's two hours, 15 minutes.
   MR GREEN:  Indeed, my Lord.
           My Lord, your Lordship was saying that the expert
       evidence would not resume before --
   MR JUSTICE FRASER:  Until 15 May.
   MR GREEN:  I am in the Court of Appeal for three days for
       the National Health Service in a long running --
   MR JUSTICE FRASER:  Which day?
   MR GREEN:  -- issue on the 14, 15 and 16 May.
   MR JUSTICE FRASER:  Well, it obviously can't be then.  Given
       this is a part heard trial, then obviously the things
       that take priority over it are Court of Appeal and
       Supreme Court.  So effectively, that week -- so it
       cannot be before the 20th, then.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  There is a slight -- this may be a difficulty
       shared by a number of people, but I'll raise it because
       it is a difficulty I face, which is I am not in the
       country from the 27th.
   MR JUSTICE FRASER:  That is judicial vacation anyway.
   MR GREEN:  Exactly.  So if we were to begin on the 20th for
       a week --
   MR JUSTICE FRASER:  There is one full week this side of the
       judicial vacation and then it would have to resume
   MR GREEN:  Have to resume afterwards.  My Lord, I don't know
       whether we've all -- whether my learned friend has his
       dates for Court of Appeal and above here.
   MR JUSTICE FRASER:  Mr Cavender is not actually doing the
       Horizon issue.
   MR GREEN:  No, quite, Mr de Garr Robinson.  But my only
       other difficulty is later on in June, which is in the
       Supreme Court.
   MR JUSTICE FRASER:  So far as today's order is concerned, it
       seems to me the sensible thing or the most efficient
       thing to do is to do the following --
   MR GREEN:  My Lord, can I just mention one thing --
   MR GREEN:  -- which is, of course, the experts.  I know that
       Mr Coyne is unavailable for a period of three weeks.
   MR JUSTICE FRASER:  Mr Green, if you left me finish.
   MR GREEN:  I am sorry.
   MR JUSTICE FRASER:  You are entirely right, but that was why
       I was going to say the important thing for today is to
       identify, effectively, the following headline points.
           The first is the dismissal of the application, the
       second is the outcome of the application by
       Lord Grabiner for permission to appeal, the third is the
       time and deadline for the Post Office to file its
       appellant's notice and application for permission to
       appeal.  The next point is the costs.  The next point is
       resumption of the Horizon Issues trial, solely for
       dealing with fact, to be on Thursday.
           Then the next point is the resumption of the
       Horizon Issues trial so far as the expert evidence is
       concerned to be on a particular day and then a provision
       within it for further directions, because we have two
       professional witnesses and a number of different
       counsel, and that can all be dealt with when everybody
       has a much clearer picture.  We could even have a case
       management hearing on Thursday afternoon, having heard
       the evidence in the morning.
           But I don't think there's much to be gained by me
       standing here while you go through your diary, and then
       we have other people's diaries which are of equal
       importance, and Mr de Garr Robinson isn't even here.
           Based on the Post Office counsel, who I have
       obviously come to know through the hearing, I think it
       is the Common Issues and recusal team here.  Mr Draper
       is not here and he is Horizon Issues, and I don't think
       any of the other Horizon Issues counsel are here,
           Mr Cavender, is there anything you want to add?
   MR CAVENDER:  My Lord, no.
   MR JUSTICE FRASER:  All right.  I'll draw up the order.  If
       junior counsel wait in court, please, I will go to my
       room, draw up the order, my clerk will bring you a copy
       down as soon as possible.
           And, Mr Cavender, one point which I am also going to
       add in the order, or Mr Cavender and Lord Grabiner, is
       I am also going to direct that your appellant's notice
       be accompanied by a letter simply on its face
       identifying that it relates to an ongoing trial, the
       date when I propose to call the remaining evidence of
       fact and my direction in terms of the expert evidence,
       so that whoever is first tasked with looking at it in
       the office can see what the state of play is as of now.
   MR CAVENDER:  My Lord, of course.
   MR JUSTICE FRASER:  And the reason I have given a relatively
       short period of time for you to lodge the appellant's
       notice is obviously this is the last full week of the
       Court of Appeal before the Easter vacation.
   MR CAVENDER:  Indeed.
   MR JUSTICE FRASER:  Anything else?
   MR GREEN:  My Lord, no.
   MR JUSTICE FRASER:  Anything else?  No.  Thank you all very
   (2.30 pm)
       (The hearing adjourned until a date to be notified)