Tuesday, April 9, 2019

Bates v Post Office: Recusal judgment


People will be talking about this case in decades to come, and not just in legal circles. Already we've had revelation after revelation about the Post Office's behaviour towards its Subpostmasters, MPs and the concept of justice ("the Post Office seemed to want findings on that only if they were in the Post Office’s favour." J Fraser - 3rd judgment)

On Tuesday 9 April at 2pm in court 26 of the Rolls Building we got the judge's perspective on the Post Office's attempt to have him recuse (sack) himself on grounds of apparent bias. He has declined to do so.

The application was received in the middle of the second trial of the group litigation and was an application made in the light of the judgment of the first trial, which the Post Office lost hands down. You can read my bluffer's guide to that judgment here.

The judgment of the first trial is known as Judgment No. 3 because there were two preliminary judgments on process (which the Post Office also lost) before the first trial started.

The recusal judgment is therefore Judgment No. 4, the fourth the Post Office has lost.

In a 44,500 word, detail-rich document J Fraser deals with every angle of the recusal application and its context. You can read it here. What follows in this blog post is a summary of interest to the casual reader and a write-up of the discussion which took place in court immediately after the judgment was handed down, in which we discovered both parties had blown half a million quid preparing and responding to the recusal application: "jam and cream on top" noted Lord Grabiner in court. The transcript of that hearing can be found here.

Let's deal with the judgment first.

Key quotes

"The fair-minded and informed observer would consider all the relevant facts. I consider that the Post Office in this recusal application overlooks a significant number of material facts, and instead, concentrates upon isolated passages and takes them out of context."

"In many places in Judgment No.3... I made it clear expressly that I was not making any findings as to breach, causation or loss, nor was I making any findings on the Horizon Issues... I consider those points – or rather, the same point, made multiple times – are entirely clear and unambiguous. Lord Grabiner was rather dismissive of this. He referred to this as a "mantra"..."

[see my write-up of the recusal application hearing in which the "mantra" concept is fleshed out]

"I do not accept that submission. It suggests some remarkably convoluted thinking on the part of the court, including an awareness in advance that an application to recuse for apparent bias might be made, and a conscious attempt to head that off, but doing so in terms which "would not convince the observer" that I had not prejudged the issues, in respect of which I was expressly stating that I was not making findings. It also suggests convoluted thinking on the part of the fair-minded observer."

"I intend to continue with the Horizon Issues trial, and I intend to continue as the Managing Judge. I am confident that I can resolve all the existing and future issues in this litigation in a wholly impartial and judicial manner."

Juicy detail

The recusal application judgment is long, as the judge himself notes. Its length is partly due to the Post Office relying on 109 separate paragraphs in the 180,000 word common issues trial judgment as evidence of apparent bias. The judge deals with each one in turn, and finds that none of them show any indication of apparent bias. To give you just one example, the Post Office alleges apparent bias in the judge's description of the first day of on-site Horizon training for Subpostmasters as "worthless".

The judge responds:

"The word "worthless" for "day one" training is expressly used in the actual internal Post Office document put to Mr Webb... I... do not understand how reproducing the same word used in the Post Office's own internal document can be relied upon by the Post Office in this recusal application. This is an example of the pitfall of considering a single passage of Judgment No.3, deciding it is critical of the Post Office, and using it to justify a recusal application, without taking into account either its context, or the evidence that unfolded in the Common Issues trial. The fair-minded and informed observer would be assumed to be precisely that – informed."

Give us a waiver

Having responded to every point made by the Post Office, the judge then turns his attention to the timing of the recusal application, which as avid followers of this case will know, arrived on a day of high drama (see my write-up: "Going Postal") in the middle of the second trial in this Bates v Post Office litigation.

I was in court to witness what happened that day and there were people who had spent many years of their careers working in the legal system who were literally shaking their heads in disbelief when the day's proceedings had finished. As J Fraser himself says in his judgment: "Recusal applications, particularly made in the middle of lengthy trials, are not entirely routine. They ought not to be kept up one's sleeve."

What I did not know was that the judge has a perfect right to take the timing of a recusal application into account.

To give you a brief chronology:

8 March - both parties receive common issues trial judgment in draft
11 March - Horizon trial starts
15 March - common issues judgment formally handed down
21 March - recusal application received in court

The surprise element of the recusal application and its delay in being presented to the court is lambasted by the judge:

"the Post Office waited until almost two weeks after it had received Judgment No.3 before it did anything in respect of making an application to recuse.... Here, there was not only silence by the Post Office, and continuing participation in proceedings, but there was active involvement in the actual Horizon Issues trial."

"Rather than acting quickly and promptly, the Post Office delayed, and... acted somewhat curiously. When I asked Mr de Garr Robinson QC about the application at 2.00pm on the day it was issued, he did not know very much about it."

On the written application: "this delay is not explained, in even the most cursory or terse terms... It is entirely ignored. I do not consider recusal applications to be entirely run of the mill events. This is even more so when one considers this recusal application is of a Managing Judge in Group Litigation. It is also even more so when it is made in the very middle of a lengthy trial. An explanation is called for."

The judge says what should have happened is that on the morning the Horizon trial was due to start, a request for an adjournment should have been made.

"The Post Office conducted itself for the whole of the factual evidence that was called during the first two weeks of the Horizon Issues trial (16 different witnesses in total) without any hint of making any application that I recuse myself.... Almost the entirety of the evidence of fact of both parties has already been fully cross-examined in the Horizon Issues trial."

The judge adds:

"It might be thought that the Post Office had taken their chance on how the evidence of fact in the Horizon Issues trial unfolded by waiting until the last day of that evidence before issuing the recusal application."

By acting in such an extraordinary way, the judge decides the Post Office has waived its right to a recusal, and expresses as much in strong terms:

"I have found that there is no apparent bias... However... I consider the delay, and the continued conducting of the Horizon Issues trial, including both the cross-examination of all of the claimants' witnesses of fact, and the calling of almost all of the Post Office's own witnesses of fact, to constitute an unequivocal waiver of any right the Post Office might have had to ask me to abandon the Horizon Issues trial and recuse myself from further involvement as the Managing Judge." [my italics]

There's more

A very interesting side note appears in paragraphs 120 - 122 of the recusal judgment.

The issue of disclosure has been a running sore throughout Bates v Post Office. The judge has commented on the unwillingness of the Post Office to disclose documents, its habit of redacting them and the general tenor of the litigation (from both parties), which has been aggressive, attritional and expensive. The credibility of at least one Post Office witness is in tatters (Angela van den Bogerd, a Post Office director, who was found by the judge to have tried to mislead him on oath), and the Post Office has managed to spend tens of millions of pounds of public money on a litigation it appears to be losing very badly. But the events described below are in a different ballpark altogether.

As part of its preparation for the Horizon trial, the claimants wanted sight of a 2011 Royal Mail/Post Office audit report written by Ernst and Young, which contained statements relating to Horizon and its fitness for purpose.

The Post Office split from Royal Mail in 2012 and the claimants were told that not only did the Post Office no longer have any copies of the 2011 audit report, but Royal Mail, who retained the copies, would not release them to the claimants without a court order.

The precise words of Mr de Garr Robinson (lead counsel for the Post Office in the Horizon trial) were: "last year my instructing solicitors, I think actually Post Office contacted Royal Mail and said "Could we have these documents, they are being requested in these proceedings" and Royal Mail said "We're not going to give them voluntarily, if you want them you will need a court order"."

Hence the reason the matter was being put to the judge by the claimants, in the hope he would order Royal Mail to release the report.

Turns out the whole thing was a load of cobblers. As the judge revealed:

"The Royal Mail had not been asked for these important documents; nor had the Royal Mail been reluctant to produce them without an order from the court.... I had already made an order on 14 March 2019 for a hearing of a third-party disclosure application against the Royal Mail (based on what was said to be the "reluctance" of Royal Mail to produce these documents). This hearing turned out not to be necessary, because once asked for them, the Royal Mail was content to produce them. The reason that they had not been produced prior to that was very simple – the Post Office's solicitors had not asked the Royal Mail for them, even though they had told Freeths, and had also told the court (through their Leading Counsel) that they had."

This might not have been deliberate. It could, of course, just be incompetence. The Post Office QC called it "confusion".

Post-judgment hearing

It's a shame silence doesn't transcribe.

There is a moment, after a discussion about costs, in which Lord Grabiner makes the case for appealing J Fraser's judgment.

LORD GRABINER: "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."

The length of that pause, if there was one, between Mr Justice Fraser's question and his decision not to allow the appeal would have been great to witness. It doesn't quite come across in the same way in print.

Other notes from the hearing:

 - the parties' costs for the whole recusal process total £520,000, most of which will be borne by the taxpayer-owned Post Office.

- the Post Office has until tomorrow (Thursday 11 April) to ask the Court of Appeal for permission to appeal the recusal judgment

- the Horizon trial will briefly re-start tomorrow to hear the final tranche of evidence from the Post Office witnesses before going on a long break. It will resume some time in late May or even June to hear the two weeks worth of expert IT evidence.

Read the full transcript here.

Abusing the use of public money

After the hearing was over, Alan Bates, founder of the Justice for Subpostmasters Alliance (JFSA) reflected on the judgment, saying: “This move by Post Office Ltd to have the judge recused was just another act by an organisation abusing the use of public money to litigate a valid case into the ground in order to protect the reputations of just a few individuals and a dysfunctional business.”

The Post Office said: "We believe the overall litigation remains the best opportunity to resolve long-standing issues in order to ensure a stable and sustainable Post Office network for the benefit of the communities who rely on our services every single day.

"Our relationship with our postmasters, operating more than 11,000 Post Office branches throughout the UK, is of the utmost importance to us and we are continuing with our programme to improve the way we work together with them."

James Hartley from Freeths, which is acting for the JFSA said: “The various procedural twists and turns, which we expect in complex litigation, won’t affect the ultimate outcome, which the Claimants are confident will be in line with the first judgement – namely justice being delivered to the Claimants. We expect PO to appeal on a number of issues and we are ready to deal with that in the Court of Appeal.”

We continue...

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