This is the final day of factual evidence in the Horizon trial. The penultimate day of factual evidence in the Horizon trial is day 8. This is because, as you will see from the housekeeping at the beginning of today's transcript, the judge has decided that the recusal application hearings should be bundled into the Horizon trial. Day 9 was a hearing which dealt with the processing of the recusal application, Day 10 was the recusal hearing and Day 11 of the Horizon trial was the day the recusal judgment was handed down. The judge did not give his reasons for including the recusal process in the dates of the Horizon trial, but I suspect he has them.
What follows is the cross-examination of Steve Parker, Head of Post Office Application Support at Fujitsu. Mr Parker worked at Fujitsu when the Panorama whistleblower and claimants' witness Richard Roll was there. Most of his first two witness statements are concerned with debunking Mr Roll's claims about his time at Horizon and what he did while he was there. His third witness statement is a reflection on points raised by the claimants' independent IT expert Jason Coyne.
I have uploaded all three witness statements, you can read them here.
The second part of the hearing below is taken up with trying to sort out the dates for the remainder of the Horizon trial to be heard - four days spent cross-examining Mr Coyne and then three days cross-examining the Post Office's independent IT expert Dr Worden. There are a further two days set aside for closing submissions.
From what I can make out below, the plan is for the rest of the Horizon trial to play out as follows:
4 - 7 June: cross-examination of Jason Coyne
11 - 13 June: cross-examination of Dr Worden
1 and 2 July: closing submissions
Here's the transcript! Enjoy.
What follows is the cross-examination of Steve Parker, Head of Post Office Application Support at Fujitsu. Mr Parker worked at Fujitsu when the Panorama whistleblower and claimants' witness Richard Roll was there. Most of his first two witness statements are concerned with debunking Mr Roll's claims about his time at Horizon and what he did while he was there. His third witness statement is a reflection on points raised by the claimants' independent IT expert Jason Coyne.
I have uploaded all three witness statements, you can read them here.
The second part of the hearing below is taken up with trying to sort out the dates for the remainder of the Horizon trial to be heard - four days spent cross-examining Mr Coyne and then three days cross-examining the Post Office's independent IT expert Dr Worden. There are a further two days set aside for closing submissions.
From what I can make out below, the plan is for the rest of the Horizon trial to play out as follows:
4 - 7 June: cross-examination of Jason Coyne
11 - 13 June: cross-examination of Dr Worden
1 and 2 July: closing submissions
Here's the transcript! Enjoy.
Thursday, 11 April 2019
(10.30 am)
HOUSEKEEPING
MR JUSTICE FRASER: Good morning. Just before we start,
a very minor admin point, the various hearings that have
been taking place since 21 March on the transcript seem
for some reason to adopt a different sort of numbering
and start again at 1A. They should just be numbered Day
10, Day 11, etc, continuing on from the 21st, so I just
thought I would make that point so as to avoid any
confusion.
MR DE GARR ROBINSON: Is your Lordship indicating that the
recusal application should be treated as part of this
trial?
MR JUSTICE FRASER: I think it should, actually. I think it
should. It's just a question of numbering really that's
all. Opus sent me an email about it, I answered it, and
then they seemed to adopt a different sort of numbering
so I just thought I would mention it first thing.
MR DE GARR ROBINSON: Your Lordship will be aware that there
is two-and-a-quarter hours left on the claimant's clock.
The Post Office' intention would be to call two
witnesses, namely Mr Parker and Mr Membery.
Your Lordship will be aware of Mr Membery's illness.
MR JUSTICE FRASER: And I think I said in the recusal
judgment that it wasn't necessarily expected he would be
available immediately.
MR DE GARR ROBINSON: Well, I can tell your Lordship that he
is not well enough to give evidence here today.
My Lord, in those circumstances, and I have to say I
hadn't picked up what your Lordship had said in
your Lordship's judgment, my instructing solicitors have
given notice of their intention to rely on Mr Membery's
witness statement as hearsay evidence.
MR JUSTICE FRASER: Understood.
MR DE GARR ROBINSON: And my learned friend's team have, if
I may say so, very sensibly and kindly indicated that
they are willing to extend time for that to have been
done, for notice to have been given under CPR33.2.
MR JUSTICE FRASER: Well, he was in a particular situation
which requires a degree of sympathy.
MR DE GARR ROBINSON: Yes. So, my Lord, for the purposes of
today, I will just be calling Mr Parker.
MR JUSTICE FRASER: Understood. Thank you very much.
MR DE GARR ROBINSON: And I do call Mr Parker.
MR JUSTICE FRASER: Have a seat, Mr Parker.
STEPHEN PAUL PARKER (Sworn)
Direct Examination by MR DE GARR ROBINSON
MR DE GARR ROBINSON: Thank you. Mr Parker, there should be
a bundle of documents in front of you there.
A Yes?
Q Could I ask you to go to tab 11 of that bundle?
A Yes?
Q Is that your first witness statement?
A The first page is a correction to, but the following
page is, yes.
Q If you turn to the second page is that your name and
address at the top?
A It is.
Q If you go to the last page, is that your signature?
A It is.
Q So is that your first witness statement?
A Yes.
Q If you could look at the correction page at the front of
that tab, is that a -- there is one correction here, I
believe. Is that a correction you wish to make to your
witness statement?
A It is, yes.
Q And there is a correction to a document reference. Was
that a typo?
A It was indeed, yes.
Q If I could then ask you to go to tab 12 of the same
bundle, I apprehend there is going to be a corrections
document, and then over the page there will be another
witness statement?
A That's correct. Yes.
Q There is your name and address and at the back of that
witness statement, is that your signature again?
A It is.
Q There is a corrections page. Do you see that?
A I do.
Q Two corrections there. Are those two corrections you
wish to make?
A They are.
Q And for the reference it's -- for the Magnum reference
of the corrections, it's {E2/17/1}.
The first correction, there is a change to paragraph
29, a reference to a phrase, "In Legacy Horizon". If we
could go to page 10 of your witness statement,
{E2/12/10} you will see what the change is from. Do you
see that?
A I do.
Q It is a change from, "While Mr Roll was employed by
Fujitsu". Do you see that?
A That's correct. Yes.
Q Now, why is that change needed?
A That change was actually needed because I applied the
wrong name to the wrong timescale to the document.
MR JUSTICE FRASER: Just before you move on, so the
correction on 29 is that -- does that paragraph end
after, "Legacy Horizon", full stop?
A Yes it does.
MR JUSTICE FRASER: It does, so I need to delete the --
MR DE GARR ROBINSON: "While Mr Roll was employed by
Fujitsu". My Lord, yes.
MR JUSTICE FRASER: Thank you.
MR DE GARR ROBINSON: At the bottom of the same page you
will see there is a footnote, a list of Peaks. If you
go back to the corrections page you will see that there
is {E2/17/1}, to one of the Peaks in the footnote.
Could you explain why that change is needed?
A When it was transcribed one of the Peak references was
doubled up and one was missed as a result of that.
Q Thank you. Then if we could go forward to tab 13,
again, is there a corrections page?
A Yes there is.
Q If you go past that page you will see, is this your
third witness statement?
A Yes it is.
Q And is it your signature at the end of that witness
statement? {E2/13/1}?
A Yes it is.
Q And then if you could look at the corrections page
{E2/13/16} there are two corrections indicated on the
page. Are these the corrections you wish to make?
{E2/171}.
A They are.
Q The first one is to paragraph 18. The original text
reads, "The wording of PC0146096 implies", and that is
changed to, "The wording of PC0146066 of which PC0146094
was a clone implies".
A Yes.
Q Could you explain what the purpose of that change is?
A The original reference in there referenced the clone
Peak which is not the useful one. It's the Peak it was
being cloned from, which contains the -- needed the
information we actually need.
Q And then paragraph 19, if we could -- you will see
that -- paragraph 19 of the corrections document -- it
sets out -- I think the first sentence of paragraph 19,
and then it suggests two changes to that sentence. You
will see there is text added and there is text deleted.
First of all, perhaps you could explain what the purpose
of the deletion is.
A Again, it's a timescale thing.
Q Is it the same -- is it reflecting the correction that
you made to your previous witness statement?
A Yes it is.
Q And then the additional text, could you explain what the
additional text is therefore?
A The additional text -- yes -- because it makes it
clearer, that the information presented there was
a result of the searches which wasn't actually made
clear in the first wording.
Q Thank you, Mr Parker.
Subject to those corrections, and to some
corrections made in your later statements to your
earlier statements, do you confirm that these statements
are true to the best of your knowledge, recollection and
belief?
A I do, yes.
MR DE GARR ROBINSON: Thank you. If you could wait there?
MR JUSTICE FRASER: Mr de Garr Robinson, I don't have
a sheet and you don't have to give me one now, but
I don't have the corrections to the third witness
statement.
MR DE GARR ROBINSON: My Lord, yes, I do have a copy. I can
hand that up now.
MR JUSTICE FRASER: And can I just check, I will check
directly with Mr Parker -- the last correction to
paragraph 19 which is still on the screen which is to
your paragraph 19 of your third statement --
A Yes?
MR JUSTICE FRASER: Can you go to the actual paragraph of
your statement? I understand the strike-through because
that is shown on the correction. Have you got paragraph
19?
A I have now, yes.
MR JUSTICE FRASER: Yes? If you go over the page, "While
Richard Roll was employed by Post Office", is struck
through. Is that last sentence, should that still be
there {E2/11/4} or is that -- you don't deal with that
in your correction.
A The sentence saying, "Of the six circumstances listed"?
MR JUSTICE FRASER: Yes.
A That should still be there.
MR JUSTICE FRASER: That should remain. I thought it
should. I just wanted to check.
MR DE GARR ROBINSON: I notice that Mr Parker doesn't have
a screen. I have only just noticed.
MR GREEN: We have only just noticed as well.
MR JUSTICE FRASER: Yes. Now that you mention it, I have
only just noticed and it's rather important. Just bear
with me just one second. He obviously has to have
a screen.
(Discussion regarding screen)
I will rise for five minutes. It's going to be
exactly five minutes. It's not going to be any longer
than that. All right. Mr Parker, I'm sorry about this,
one of those things that happens, because you started
giving your evidence you are not allowed to talk to
anyone about the case. Obviously your evidence is going
to be over this morning, so that's not going to apply
for any lengthy period of time but we are going to need
five minutes to get you a screen.
(10.40 am)
(A short break)
(10.45 am)
MR JUSTICE FRASER: Right. Do you have a screen?
A I have got a screen.
MR JUSTICE FRASER: Does it have anything on it?
A It does.
MR JUSTICE FRASER: Excellent. Right. Mr Green?
MR GREEN: Mine has gone away a bit.
MR JUSTICE FRASER: It might be safer to move your lectern
towards the screen rather than moving the screen towards
you.
Cross-examination by MR GREEN
MR GREEN: Mr Parker, just to clarify, we have got your
first witness statement which is 16 November 2018, at
{E2/11/1}. Then we have got your second witness
statement of 29 January 2019 {E2/12/1}; yes.
A Yes.
Q Then we have got your third witness statement of 28
February 2019 {E2/13/1}, and both the second and the
third witness statements were making some amendments to
prior witness statements; yes?
A Yes. Indeed.
Q Then we have got the list of corrections at {E2/16/1},
if we go down, I think it's page 4 {E2/16/4} which are
the corrections that were produced prior to the
beginning of the week where you were supposed to give
evidence.
A Yes.
Q And then yesterday we got {E2/17/1} which are the
corrections that you were assisting his Lordship with
a moment ago.
Was one of the reasons why there was a need for
a number of corrections that you have had to rely quite
heavily on some of your colleagues to help you with
information you have been providing to the court? Is
that fair?
A That was only one of the reasons.
Q What were the other reasons?
A Are -- my understanding -- my first statement, my
understanding of some of the information Mr Roll put on
his statement was imperfect because some of it was
a little bit vague and it is a result, sometimes, of
refining our knowledge based on looking further into
things which happened fifteen years ago.
Q And which there was no clear available knowledge on
prior to you looking into?
A Correct.
Q Can I just try to trace through an example of how these
witness statements hang together by reference -- let's
take the thing that his Lordship was asking you about
a moment ago. Let's look at paragraph 19 of your third
witness statement {E2/13/4} please. At the moment I'm
just trying to understand how these hang together.
Paragraph 19 of your third witness statement you
say:
"The vast majority of server injections would not
have been to inject transaction data. In paragraph 29
of my second witness statement I listed the
circumstances in which data was injected into a counter
in Legacy Horizon ..."
Just pause there for a moment. So you are actually
referring back to paragraph 29 in that paragraph, aren't
you?
A I am, yes.
Q So let's go back to paragraph 29, and we have got that
in your second witness statement at page {E2/12/10}.
There you talk about one of your colleagues having done
some searches.
A Yes.
Q Pick search terms that were used in that particular
search.
A Yes.
Q And then --
MR JUSTICE FRASER: Hold on just one second. Which page
should we be on?
MR GREEN: Page 10 my Lord, paragraph 29.
MR JUSTICE FRASER: Yes. Thank you very much.
MR GREEN: You say:
"At my request, my colleague John Simpkins (Senior
Consultant), carried out a search of the incident
management system for incidents which required injecting
data into the counter ...", etc, giving examples of the
search terms that were used on that occasion?
A Yes.
Q Then you say:
"From the results I can determine that this was only
carried out in the following circumstances ..."
And then the words that we have to remember to
forget, as it were, are, " ... while Mr Roll was
employed by Fujitsu".
A That's correct. Yes.
Q Now, if we -- it might be helpful for you to look at the
paper ones, because it is difficult to do it on the
screen, but if we can look at the correction, please, at
{E2/16/4} on the screen, and then -- so what you are
doing to paragraph 29 in the corrections is you are
expanding the period that you are talking about.
A That's right. I am. Yes.
Q From Mr Roll's employment you are going much wider to
say the whole of Legacy Horizon?
A That's correct. Yes.
Q And then if we look at paragraph 19, and we look at
{E2/17/1} please, you are actually -- you appear to be
saying that you are confining what's being said in that
paragraph to what was found as a result of the searches
in that paragraph, not, "These are all the ones that
happened in the whole of Legacy Horizon".
A That's correct. Yes.
Q So one is -- so the paragraph 29 is expanding it to the
whole of Legacy Horizon?
A That's correct, yes.
Q But paragraph 29 is confining this to only the searches
described in paragraph 29.
A Correct. Yes.
Q And what's the real reason for that change?
A Because, again, the timescale that I put on it in the
statement was incorrect. Yes.
Q Okay, well, pausing there, there are two points. Let's
ignore the change in timescale from Richard Roll to the
whole of Legacy Horizon. You explained to the court
this morning, in relation to this change here, where you
say -- you add the words, "Found as a result of the
searches described in that paragraph" --
A Yes?
Q -- you said that was just to make it clearer,
effectively, what you were referring to.
A Correct. Yes.
Q Now, do you know the real reason why that's been changed
to say that?
MR DE GARR ROBINSON: My Lord, is that a fair question?
MR GREEN: Well, I'm just going to ask it and see what
answer --
MR JUSTICE FRASER: Well, let's just hold on one second.
Asking him what the real reason is a fair question, so
you can put it again. Well, so far as he knows.
MR GREEN: Do you know what the real reason for making that
change is?
A This is the change where we strike out, "Whilst Richard
Roll was employed" --
MR GREEN: No. Sorry?
MR JUSTICE FRASER: Both of you, if you speak over each
other it doesn't go on the transcript, all right?
Mr Green?
MR GREEN: No, the change I'm asking about is the addition
of the words, "Found as a result of the searches",
described in that paragraph. Why is that being changed
now?
A Because I felt that made it clearer that the information
presented there was a result of the searches and not --
and the exact search terms used, because it was an
expansion of the previous search terms used. Does
that ...
Q Can you explain that again very carefully?
A So when the -- the first time that we sought to gather
this information, a certain set of search terms were
used when searching the incident management system. My
colleague, who is very, very diligent, decided upon some
additional search terms afterwards, and that's what this
second bit reflects, that he found extra search terms
and some extra incidents relevant to the court and what
we are trying to say there.
Q And, well, as we are on the point, let's just quickly
bring up {H253} please?
MR JUSTICE FRASER: Can I just ask, when you are giving your
evidence generally, if you could try and firstly explain
what you yourself did and then if you need to go on and
explain -- because you have used the word, "We",
a couple of times and it just makes it confusing to know
what's your direct evidence and what's been done by
somebody else.
A Yes, my Lord.
MR JUSTICE FRASER: I'm not saying don't tell us what other
people did but just make it clear which was you
individually and which was other people.
A Okay my Lord. Thank you.
MR JUSTICE FRASER: Mr Green?
MR GREEN: Now, this is {H/253/1}. This is a letter from
Womble's dated 20 March 2019. That is the day before
you are due to give evidence, so we are in the middle of
cross-examining, and this letter is sent while we are in
court. It says:
"We understand from Fujitsu that the SS C has been
carrying out further work to identify any Peaks that
show transactions being injected into the counter in
Legacy Horizon in addition to those referred to in
paragraphs 29 and 30 of Mr Parker's second statement.
On Monday ..."
So this is Wednesday:
"On Monday we learned that an SSC technician has:
Searched for all KELs that mentioned RiposteMessageFile,
Ripostemport and RiposteMessage"; correct?
A Correct, yes.
Q "Collated the responsive KEL references ... re-searched
the Peak system for any Peaks which contained those KEL
references; and identified ..."
Some further Peaks.
A That's correct. Yes.
Q You haven't amended paragraph 29 of your second witness
statement and corrected it to include those Peaks or an
explanation in paragraph 29 of that search having been
undertaken, have you?
A Can I refer to that? So in my second statement ...
Q Yes. Look at {E2/12/10}.
A I can do that on paper, but yes, okay. So paragraph 29
of that one?
Q Yes.
A Yes?
MR JUSTICE FRASER: Are you looking at the paper copy?
A I'm looking at the paper copy.
MR JUSTICE FRASER: Can we retain on the common screen the
document at {H/253/1} please? Right.
Mr Green?
MR GREEN: There are a number of points which arise in
relation to that letter. The first is that different
search terms have been used.
A That's correct. Yes.
Q For example.
In this search the RiposteImport command has been
searched for, which is the directly applicable one for
injecting data; yes?
A RiposteImport is one of the ways of injecting data, yes.
Q And if we look at your paragraph 29, that was not one of
the search terms that was used when that search was
undertaken.
A That's correct. Yes.
Q So the real reason that the amendment that was made to
paragraph 19 to somehow cater for the fact, without
actually saying it out loud that additional searches had
been done, and additional results had been done that you
hadn't dealt with in your statement?
A These are additional to the searches from my original
statement, yes.
Q We all know that. We know that they are not in there
and we know that they are additional because they were
provided the night before you were due to be
cross-examined, or the day before you were due to be
cross-examined?
A Yes.
Q The question I'm asking you is the fact that those
searches had been done, that's the real reason for the
change in your third statement, isn't it? I think you
have effectively accepted that already.
A I must admit I'm not clear on your point, but --
Q Well, let's have a look one last time.
A -- I accept that we have added in extra search items to
give us more information.
MR JUSTICE FRASER: I wonder if we could do two things.
Mr Green, when you are saying, "The real reason",
I think you need to specify or particularise what, in
fact, the witness either did or didn't do or what the
witness either understands or doesn't is the real
reason, because that phrase is open to --
MR GREEN: I understand my Lord.
MR JUSTICE FRASER: -- a little bit of misinterpretation,
potentially.
MR GREEN: My Lord.
MR JUSTICE FRASER: And, Mr Parker, in that last answer you
used the first person plural again and said, "We".
A Yes.
MR JUSTICE FRASER: I wonder if you could just remember what
I said earlier on.
A Apologies. Yes, my Lord.
MR JUSTICE FRASER: You don't need to apologise, it is
understandable if you work in a corporate environment,
you are used to doing that.
A Yes. Indeed.
MR JUSTICE FRASER: But it's your evidence and you are the
person being cross-examined, so ...
Right. Mr Green?
MR GREEN: Was it your idea to make the corrections in the
statement? Your third witness statement.
A I notified the legal team that Mr Simpkins had done some
more work and as a result of that we changed -- we --
this letter was actually generated.
Q And you didn't think it was important to correct
paragraph 29 of your second witness statement accurately
to reflect the situation as it would have been on the
day you were due to give evidence, or indeed today?
A That wasn't a choice I made personally. I was advised
that we generated this letter.
Q Can I ask on a different point, just so we understand
what the effect of the combination of these statements
is?
If we look, please, at {E2/11/3}?
Now, you will see there paragraph 11. This is your
first witness statement and this is where you were --
your witness statement was commenting on Mr Roll's
statement; yes?
A That's correct. Yes.
Q And Mr Roll had given evidence about what Fujitsu was
able to do if terms of its powers; yes?
A Yes.
Q And what could be done?
A Yes.
Q And you have subsequently accepted, I think, that you
needed to modify your first witness statement in respect
of that?
A Yes.
Q So let's look at paragraph 11, because we don't have one
consolidated witness statement explaining what your
evidence is now. We have to infer it from five
different documents, don't we.
A Yes. We do, yes.
Q Okay, so let's look at paragraph 11 and look at the end
of paragraph 11. You say there:
"As I explain below, those suggestions are incorrect
and Mr Roll's account of Fujitsu's actions and powers is
inaccurate and misleading".
A Yes.
Q Now, when you took the oath and then said you believed
your witness statements to be true --
A Yes?
Q -- what were you saying to the court about that
sentence? Could you just explain it please?
A In that paragraph I am trying to make the point that the
suggestion that we frequently changed branch transaction
data without informing the branches that such actions
were being actually taken is not correct. "Frequently",
is a subjective term but I would not have described the
rate at which we were changing branch transaction data
as, "Frequently".
Q Well, pausing there, your position in your first witness
statement was, at least in one material respect that you
have now changed your position on, that Fujitsu couldn't
do it at all, and you have accepted that in the light of
Mr Roll's, as you say, clarification, you would now
accept that Fujitsu did have powers which, in your first
statement, you didn't accept that it did have. That's
fair, isn't it?
A I'm not aware of where I have said that we never changed
branch transaction data.
Q Well, you have said -- you have answered about the part
of the paragraph I specifically didn't ask you about,
and the part of the paragraph I did specifically ask you
about is the last line where you say:
"As I explain below, those suggestions are incorrect
and Mr Roll's account of Fujitsu's actions and powers is
inaccurate and misleading".
A Yes.
Q Now, given the change of your evidence in your later
statements about the ability remotely to access and
inject transaction data, can you explain to the court
what you were saying you believed about that sentence?
What should the court now read for those words in the
light of the three statements that it has before it?
A If I take the last sentence in isolation, which is what
I think you are asking me to do, then I don't understand
how I apply it, because I am -- I have been simply
trying to say there that the frequency was not high, and
that we would always involve the SubPostmaster wherever
possible if that sort of action was actually being
taken. That's what I'm trying to say by that.
Q Well, pausing there, can you focus on the word,
"Powers", in that line? Do you see that?
A Sorry, for the word, "Powers"? Yes. Okay.
Q Yes? Let's not talk about actions, how frequently it
was done or not?
A Okay. Yes?
Q Because what you said about Mr Roll was his evidence
about Fujitsu's actions which could be the frequency,
but powers was also misleading. If we just go
through -- just for a moment we will go forward, I'm
only going to ask you this one more time, but to give
you context, let's have a look at {E2/12/9} please. By
way of example you say at paragraph 27:
"In paragraph 20 of Roll 2, Mr Roll describes
a process by which transactions could be inserted via
individual branch counters by using the correspondence
server to piggy back through the gateway. He has not
previously made this point clear. Now that he has,
following a discussion with colleagues who performed
such actions I can confirm that this was possible".
So you weren't in a position to say that this was
possible before, and you didn't say it was possible
before.
A That's correct. Yes.
Q You didn't say that Fujitsu had that power before, did
you, in your first witness statement? And you accept
that it does now?
A I accept that Fujitsu has always had that power.
I think it was a case of the phrasing of my original
statements in relation to the point I was trying to get
over there.
MR JUSTICE FRASER: Did you know that Fujitsu had that
power --
A Yes.
MR JUSTICE FRASER: -- just wait for the question.
A Sorry.
MR JUSTICE FRASER: When you signed your first witness
statement?
A Yes.
MR JUSTICE FRASER: You did.
A I did, yes.
MR GREEN: Let's step back for a moment and just look at
your role. You say in paragraph 7 of your first witness
statement at {E2/11/2}, paragraph 7, you say, at the end
of that statement:
"Although I didn't have the formal title, I acted as
the Deputy Manager to the SSC as a whole".
A That's correct. Yes.
Q Now, Mr Roll didn't remember it exactly that way. How
could people tell that you were acting as the Deputy
Manager of -- to the SSC?
A They could tell by the fact that I would stand in for
the manager in his absence. I would also make decisions
on approving actions for him and other operational
decisions in general.
Q You say at paragraph 7.1 you were responsible for the
management of incidents between December 2009 and 2010?
A That's correct. Yes.
Q Through the whole support process?
A That's correct.
Q So a detailed knowledge of that?
A Yes.
Q And 7.2 in March 2010 you became the manager of SSC and
was responsible for the provision of third line
application support to the Post Office account,
including the management of the staff working on the
account, so you well understand what third line support
does.
A I do, yes.
Q Is that fair?
A I do, yes.
Q Would you agree with the description that Mr de Garr
Robinson gave to Mr Roll of you being part of the super
elite and Mr Roll being part of the elite? Would you
regard yourself as being part of the super elite in that
way?
A I wouldn't have used that wording but in any support
group there are people of varying skills.
Q Because the impression -- I mean I understand the answer
you have just given to his Lordship is that you knew
when you did your first witness statement that it was
possible to piggy back in the way that we have seen
Mr Roll suggesting, but you didn't mention it. I'm
going to suggest to you that you gave your evidence from
the position of not being terribly well informed about
what could or could not be done. Is that right or
wrong?
A That would be wrong. It can be difficult to remember
exactly what was being done 15 years ago in detail, but
in general terms I am confident of the information I
gave.
Q Apart from not mentioning something that you knew about
when you did your first witness statement.
A Yes.
Q Now, just in terms of the role of third line support,
there are -- the support function of third line support
has got the -- there is the software support centre
which is SSC, isn't there?
A That's correct, yes.
Q And then there is Management System Support which is
a separate group?
A Yes. That is also correct, yes.
Q And you were in SSC and so was Mr Roll?
A That's correct, yes.
Q So the evidence you are giving is about SSC?
A It is, yes.
Q You would expect third line support staff to undertake
in-depth investigations into incidents, wouldn't you?
A I would expect staff within the SSC to be covering both
second line and third line roles and having varying
skills. Some of those staff would undertake in-depth
investigations.
Q Let's just clarify. Mr Roll's evidence was consistent
with an expectation that third line support would
undertake in-depth investigation into incidents. Do you
agree with that?
A I agree that that is one of the roles of the third line
group, yes.
Q And they would have detailed knowledge of the system
based on documentation and source code inspection,
wouldn't they?
A The detail of the knowledge would vary person to the
person.
Q But the third line support role, they would be expected
to have detailed knowledge of the system, based on both
documentation and the inspection of source code.
A For some members of staff that would be true, yes.
Q I'm suggesting for all members.
A No. I couldn't -- could not agree with that.
Q And I'm suggesting that definitely for Mr Roll.
A I couldn't agree with that either.
Q Okay.
They would also be trained on not only the operating
systems but also the commercial off-the-shelf packages
that underlie the application?
A That is correct. Yes.
Q And the coding languages used within the application?
A Some of them, yes.
Q No, all of them.
A No, some of them.
Q Okay, and they were also expected, weren't they, to
train themselves by examining support guides, design
documentation and so forth for the components of the end
user application?
A That is correct, yes.
Q And they would also have access to development and
package management tools to allow the production of
specialised diagnostic code, scripts and support tools.
A That is correct, yes.
Q Are you beginning to recognise this? Let's have a look
at {F/823/19}. This is Fujitsu's own document, and look
at page {F/823/19} please. Paragraph 5, and it spells
out what third line support are supposed to do?
A It does indeed.
Q I have basically just been reading this out to you.
A Yes indeed.
Q Some of it you agreed with and some of it you disagreed
with and some of it you partially disagreed with?
A That is correct in the context of individual people
within the group, yes.
Q So you would expect them, I think you would accept, to
undertake in-depth investigation into incidents; yes?
A I would expect that of certain members of staff. The
skill level varied amongst the members of staff and the
skills of each staff member on individual subjects it
varied.
Q Well, Mr Roll was conscientious.
A Yes he is. I would agree with that.
Q Skilled?
A He is scaled, yes.
Q Experienced?
A He is, yes.
Q And you gave him a personal reference?
A That's correct, yes.
Q Your witness statement slightly tends to underplay his
involvement and skill level, doesn't it?
A My witness statement was an accurate reflection of my
view of Mr Roll's skills.
Q And the answers you were giving until you began to
recognised what was being read to you, were slightly
underplaying what third line support did, weren't they?
A No. What -- there is a varying degree of skills and
actual knowledge within the group. Not everybody cannot
know everything about all aspects of the actual system.
Skills would actually vary, knowledge would vary. We
would have, and do have, specialists in different areas.
Q Let's move forward if we may, please.
Now, Mr Roll's recollection of what he was doing was
challenged in cross-examination. Were you here for
that?
A Yes I was, yes.
Q And it was challenged on the basis of the spreadsheet
which you exhibited to your witness statement. Yes?
A That was part of it, yes, indeed.
Q Because it's in your witness statement, first witness
statement, paragraph 28, which is at {E2/11/8}. You
say:
"Between 1 January 2001 and 31 December 2004 ... the
SSC received a total of 27,005 calls, meaning that on
average 563 calls per month were dealt with over this 4
year period. This is shown by a spreadsheet prepared by
a team in the SSC which appears at ... SPP 1".
Now, let's pause there. Who was in the team?
A To produce that information there were at least two
other people within my team who helped me to produce the
basic stats. I analysed the stats into the summary that
you see there.
Q Well, let's take it in stages.
A Yes, by all means.
Q Who were the people that you are referring to that did
that exercise?
A Two of my colleagues, John Simpkins and Mark Wright.
Q And they are organised and work as a team?
A They are part of my team.
Q Would they normally work together as a team?
A They would two of the senior people within the group so
yes, they often do.
Q Okay. Let's look, please, if we may, at {F/1839/1}.
Was there any reason why you didn't say who they were?
A No particular reason, no. I mean, I produced the
summary and the pivot tables in that document. I just
didn't do the searches to produce the raw data.
Q Well, let's have a look, if we may. So we have got
{F1/839/1} and we are going to look at the tab at the
bottom which is called, "RR Peak Live by Category".
It's just across there. Could we make that a little bit
bigger please? Could you scroll up to the top? If you
could hold down the control button on the keyboard and
roll the mouse forward it will just expand a little bit.
We can just see what the categories are.
A I do, yes.
Q So your evidence about what Mr Roll was doing was based
largely on this spreadsheet, wasn't it?
A It was based largely on this spreadsheet but also my
recollection of the work that Mr Roll completed.
Q I mean, you sounded a little bit hazy earlier on about
things that had happened a long time ago. This
spreadsheet you regard as important to get done, so that
it would refresh your memory. Is that right?
A I thought it was important to get this done to give the
court accurate -- more like accurate information to
support my recollection.
Q Because the accuracy of the information is very
important, isn't it.
A The accuracy is important, yes.
Q It is very important.
A It is very important. Yes.
Q That wasn't intended to be a controversial question,
Mr Parker.
Now, in paragraph 36 of your witness statement, if
we can just give this context, it's at {E2/11/9}, you
say:
"I disagree with Mr Roll's suggestion that much of
the work being carried out by the SSC while he was
employed could be described as firefighting coding
problems in the Horizon system. There were times when
the SSC was very busy, for example networking problems
causing application issues across the whole estate and
data centre outages. But there were only rare
circumstances where a coding issue had an estate wide
impact and, in those instances, Mr Roll would have been
involved in executing avoidance actions to mitigate
impact to the estate ..."
There was still a need, wasn't there, as we have
seen in the description of third line support, to
address coding issues even if they are not having an
estate wide impact?
A That is true, yes.
Q And if we look at paragraph 40 {E2/11/10} you say:
"With that in mind, the final response codes that
were allocated to incidents (ie Peaks) reported to SSC
between 1 January 2010 and 31 December 2004 were as
follows ..."
And you set them out, and you got those from the
spreadsheet that we have just been looking at?
A I did, yes.
Q And this was the basis upon which Mr Roll's evidence was
directly challenged, and this was put to him, and he
accepted that the figures that he was being shown didn't
reflect his recollection as he remembered it.
A Sorry, did you say, "Did", or, "Didn't"?
Q Did not. Sorry, I may have misspoken there. He
accepted very fairly that the figures that he was being
shown didn't reflect the situation as he remembered it?
A As he remembered it, indeed, yes.
Q Yes. So let's go back to {F/1839/1} please? It's the
one we had open. That's very helpful. Thank you. Can
we go back to that tab? That's it.
So what you have done in your -- in the spreadsheet
is the closure categories, which is a code given by the
operators when a Peak is closed by number --
A That's correct. Yes.
Q -- have been recorded in column A?
A Yes.
Q The associated description has been recorded in column
B?
A That's correct.
Q And the overall count recorded in column C.
A That's correct. Yes.
Q Yes? And then Mr Roll's count where he is expressly
mentioned --
A Yes.
Q -- as having been involved is in column D; yes?
A I would describe it not as expressly mentioned. Richard
Roll would have been the person who put the final
response on, not necessarily mentioned in.
Q So it's only where he put a final response on?
A Correct. Yes.
Q So lots of other ones where he may have done that?
A Generally no. The person who puts the final response on
is the technician who has been most involved in
completing that work.
Q But you could be involved in lots of Peaks where you are
not the person looking into them trying to help, where
you are not the person who is the final person who signs
off.
A That would be a much -- a very small incidence.
Q Well, we will have a look at that in a minute, but let's
have a look at what you have chosen to put at column E.
Now, is that your heading at column E?
A It is, yes.
Q So who did columns A and B and C?
A A, B and C were just established as a pivot of the main
data. I'm fairly sure I did that myself.
Q Okay. So you did a pivot table of the main underlying
data?
A Yes.
Q Fine, and then column D. Who did that? Who went
through and decided whether it was an RR count or not?
A The RR count, as I remember it, was based on the
original extract from the database and it would be
whether or not Mr Roll put the final response on that
Peak.
Q I understand that --
A So the original database --
Q Who did it?
A -- I see, so the original database extract was done by
John Simpkins as an sql search on the database.
Q And then potential software error. Who decided --
A That was me.
Q That's you, and then you have done the columns all the
way off to the right have you?
A I have, yes.
Q And so, "Potential software", is your description?
A That's right. Yes.
Q And you have only included four categories of those?
A I have, yes.
Q 59, 60 and 61?
A Yes.
Q And 74?
A Yes.
Q So as an example of one of the ones you have excluded,
70, you have excluded that one?
A Avoidance action, I have.
Q And you have excluded, "Administrative Response"?
A I have, yes.
Q And, "Solicited Known Error"?
A That's correct.
Q Yes. Okay. That's your decision, not Mr Simpkin's or
anyone else?
A It was mine, yes.
Q Because you wanted to give an accurate impression to the
court.
A That's what I was actually seeking to do, yes.
Q And you are very familiar with these codes and what they
involve.
A "Very", would be a bit strong. I am familiar with them,
yes.
Q If you wanted to give an accurate impression to the
court did you check with anyone before you decided on
those categories or did you just have a little bit of
a go yourself?
A I did those based on my own experience.
Q Did you check with anyone?
A No I didn't.
Q Okay. In fact, in your statement you actually go a sort
of step further and say that the potential software
error we have in column E, even that doesn't mean there
actually was one, because it could be something as
trivial as the use of, "KG", or something like that.
A It could be a trivial problem indeed, yes.
Q Yes, so even where you have plucked out, I think, four
times in his entire career where he was involved in
a potential software error on that analysis, even those
might not actually be one? That's your point?
A That is possible. It was actually 29 showing there, not
four. I think you just said, "Four".
Q Sorry, the four we see there, you are right, the total,
if we go all the way up --
A Sorry, you mean the four different categories?
Q Yes.
A Apologies. Yes.
Q I could have made it clearer. That's my fault.
You would accept, wouldn't you, that some software
errors may look like user errors.
A At first analysis I think that is possible. Generally
though, when you see a pattern of repeating user errors
you then immediately think, well, there must be more to
this.
Q Yes.
A But yes, some could, yes. Agreed.
Q It's unlikely that people will suddenly be careless in
the same way --
A Correct.
Q -- from out of nowhere.
A Correct.
Q Now, let's have a look, if we may, please, at category
68 please. You have got that in that line there. Could
you just tell the court what you understand that
encompasses?
A "Administrative Response", was used when -- in a number
of situations when there was no work to be done, you
would use, "Admin Response". When there was no
technical work to be done you would use it. It would
also be used when no other closure category was
appropriate.
Q Okay. Well, it was specifically not to be used as
a catch-all for, "Unable to decide which category to
use".
A That would be fair.
Q The reason it's fair, I think, is because if we look at
F -- we will keep that available as it is if we may --
but if we look briefly at {F/823/24}, albeit a 2011
document, we can see there, "Administrative Response",
at 9.1.9:
"Only to be used for closing calls which cannot be
closed in a legitimate category for 'administrative'
reasons -- eg incident incorrect changed by the
system ... test calls; mis-routes; double escalates;
unintended escalates, etc".
So it is an Administrative Response, isn't it?
A I would agree with those, yes.
Q What it is not to be used for, as we see there
expressly, it is not to be used as a catch-all for,
"Unable to decide which category to use".
A It does say that indeed, yes.
Q Now, let's have a look, if we may, at {F/16/1} please?
We need to look at the second page of this because
that's where it actually begins, the text begins on
{F/16/2}. It's Peak 0027887 and it's given a category
B, "Business restricted". That is a serious category,
isn't it?
A It's one of the more serious categories, yes.
Q Because it only goes up to A.
A A through E, yes.
Q So this is the second-highest category?
A It is.
Q We have seen this one before during the trial, you have
probably been in court when it has been mentioned, it is
the one where there is a balance bought forward on week
12 of £1 million, over £1 million -- £1,082,544.32 --
that subsequent doubles; yes?
A Yes.
Q It's very serious. It is described in the summary as,
"Receipts and payments mis-balance"; yes?
A It is indeed, yes.
Q And then if we look on page {F/16/3} of that please, you
can see the doubling in the bottom box, the bottom
yellow box.
A Yes.
Q To £2.279 million?
A Yes.
Q Then it says:
"The discrepancy was therefore 1,082,540.28. This
was due a known software error which has no been
resolved".
A That's correct.
Q Now let's assume in your favour that that was, "Has now
been resolved"; yes?
A I don't know but --
Q Or, "Not been resolved". We don't know.
A It must be either, "Now", or, "Not", I would think, yes.
Q If we go to page 8 please {F/16/8} we can see in the
bottom box of 13 October a number of different
investigations into different periods, periods 9, 10 and
11 and 12 and 13.
A Yes.
Q And at the bottom we can see that there is an agreement
at least with Mike Crowshaw's explanation of the
imbalances in periods 10 and 11 which were due to
a stock transfer of £12,000 which was not settled
correctly to the presence of a corrupt DLL file on the
PC involved.
A That's what the notes say, indeed.
Q And there are various different aspects they are also
investigating. They are concerned they may not have
sufficient evidence; yes?
A Yes.
Q Over the page, if we see at {F/16/9}, insufficient
evidence at the top, then further data provided, yellow
box at the bottom, halfway down:
"I have obtained new evidence ..."
There are ten different people working on this Peak.
That's not uncommon, is it?
A Those extra people working on the Peak are in the
Development group and not the SSC but I would agree
there were multiple people working on this Peak, yes.
Q And if we go to page {F/16/11} there is a target release
halfway down, set to M1 to reflect the categorisation.
A Reflecting the release when this might be fixed at, yes.
MR JUSTICE FRASER: Where are you looking?
MR GREEN: Sorry, halfway down my Lord.
MR JUSTICE FRASER: Which colour?
MR GREEN: In the yellow box, July 2000, 11.03.
MR JUSTICE FRASER: Yes.
MR GREEN: If we go over the page {F/16/12}, some surprise
being expressed at the bottom of the page that it only
had six counter 32 transactions. Counter 32
transactions are transactions that had not been done by
the SubPostmaster or assistants, aren't they?
A Without looking at the original data I cannot be sure
what that notation means. I could assume that 32 was
the identifier used for central correspondence servers
and not the counters.
Q Yes.
A That's all I can sensibly say without looking at the
original data and not actually knowing why that
particular note has been made.
Q Well, that was what the significance of 32 was, wasn't
it?
A I don't know --
Q Normally.
A -- in this case. 32 is the identifier used for
correspondence server main data centre server messages.
Whether that's what was meant here I don't know.
Q Okay. Then you will see on {F/16/13}, a third of the
way down:
"I see this is a very old problem ..."
July '99:
" ... there have been many ... updates ... may I
suggest we discontinue investigation of this particular
problem ..."
Just underneath that you will see the defect cause,
three lines up from the bottom, updated to
development -- code?
A Sorry, where are you? Three lines up from the bottom?
Sorry, of the top box?
Q Of the top box. You see that?
A Yes. Got that.
Q You have got, "Code", and then in the box below:
"Closing call on the basis of insufficient evidence.
As this is such an old call I have not contacted the
call originator. I suggest that this call remains
closed!"
Do you see why there is an exclamation mark there?
A I don't know.
Q And then we see it is categorised as Category 68,
Administrative Response?
A It has been closed that way, indeed.
Q And it's right, isn't it, that that would have involved
people looking into code and trying to find out what had
gone wrong and trying to trace the underlying cause of
the incident.
A In the example that we see there, the Development group
were doing that work, yes.
Q Yes, and the person in SSC would have been looking into
it too?
A I don't know to what extent Microsure was involved in
looking into code on this particular incident.
Q You don't know that, but that's quite likely to have
been done, isn't it?
A I cannot say.
Q Okay. Let's have a look at another one?
MR JUSTICE FRASER: Well, before you go on, categorising
that in your spreadsheet you took from the category that
had been identified in the Peak. Is that right?
"Administrative Response".
A The spreadsheet reflects the final response used in each
Peak, yes.
MR JUSTICE FRASER: Yes. Right.
MR GREEN: Let's look, please, at {F/1326/1}. You will see
in the -- halfway down you will see:
"Up to 10 unnecessary reconciliation errors each
week, requiring calls to be raised and checks made.
Could obscure genuine issues"; yes?
A That's -- yes. Got that, yes.
Q It is a description of what we are dealing with?
A Yes.
Q It is assigned category C, non-critical?
A It is indeed, yes.
Q Just look in the yellow box --
A The first yellow box?
Q Yes.
A Yes?
Q 11 March:
"Please note (in capitals) this call has an 8 hour
SLA".
A That's correct, yes.
Q Service Level Agreement?
A Yes.
Q So it had to be closed within that time; yes, to comply
with the SLA?
A The MSU had to respond to it within that time, yes.
Q Okay.
If we go over the page, {F/1326/2}, if we look in
the -- Anne~Chambers gets involved. She is involved, it
seems -- appears in a lot of these. Does she still work
at Fujitsu?
A No she doesn't, no.
Q When did she leave?
A I cannot be very accurate -- three, four years ago she
retired.
Q Okay. Looking at the top of page 2:
"After investigating the specific incidence I will
use this call to investigate the sudden increase in
zero-value state 4 reconciliation calls -- something
must have changed somewhere. DRS data currently goes
back to 11 December".
So that's rather the point you were making about
when you get a pattern it's important to investigate it
seriously?
A It is indeed, yes.
Q If we go to page {F/1326/3} please, and we look at the
bottom box of that, Anne~Chambers, she is in SSC?
A That's right, she is.
Q And she is investigating this?
A That's right.
Q She says:
"I finally have a theory as to what is happening,
and I think it must be connected to a BAL change ...
That's the Branch Access Layer?
A It is.
Q "... made in release 11.7 which went live on 8
February".
See that?
A I do.
Q And if we go down to the penultimate paragraph:
"It is these unsettled transactions, where the C0
has reached TES prior to settlement, which are giving
the reconciliation errors ... I have made various checks
of TES timestamps before and after the upgrade which
support the scenario. Please can development check what
went into R11.47 which has changed the behaviour.
Related to failure to read recovery data?"
You can see there, "PC0234448 was fixed to change
the behaviour but I think it went live at an earlier
release?"; yes?
A Indeed that's what it says, yes.
Q So there are ten people working on this Peak as well --
over ten actually?
A Where are the -- I will have to take your word for that.
Q There are more than ten different names people dealing
with it?
A That is a slightly dangerous assumption because some of
those people will have been admin people transferring
things round, but --
Q Okay.
A -- that would only account for one or two.
Q Okay.
Let's look at page {F/1326/4} please. To be fair,
Anne~Chambers is driving this?
A From the SSC perspective, indeed, yes.
Q And halfway down:
"A new business impact has been added: Up to 10
unnecessary reconciliation errors each week, requiring
calls to be raised and checks made. Could obscure
genuine issues".
That appears to be the source of what we saw at the
beginning?
A It does.
Q And if we look at the bottom of the page in the yellow
box, Anilkumar Malipatil is Anilkumar in SSC or this
development?
A No, that would be a member of the Development Team.
Q Okay. He says:
"This Peak is the regression of the Peak PC0234448";
yes?
A Indeed he does, yes.
Q And underneath he has put:
"Category 41 -- product error diagnosed"?
A He does indeed, yes.
Q The reason he does that is because there has been
a regression to a problem that had previously happened
as a result of a subsequent software release not having
caught a fix?
A That's the note that the developer has made, yes.
Q And if we look on page {F/1326/5} please, towards the
bottom of the first blue box, penultimate paragraph:
"Risks (of releasing and of not releasing proposed
fix): Without this fix, there will be possibilities of
system errors at counter and while doing reversal
transaction"; yes?
A That's what it says indeed.
Q So that would go into the decision to do the fix or not,
and then if we go forward to page {F/1326/9} please, we
look at the very bottom there, so we have got
Mr Boston -- who is he, three up from the bottom?
A I'm trying to -- John Boston had various roles that were
mainly administrative. I don't know what role he held
in September '16.
Q Because up to that point we can see it is being
categorised as category 60; yes?
A Yes.
Q And final -- and there is a fix that has been released
to live because we can see that above in the yellow box,
just over halfway down.
A Yes?
Q It says:
"Fix been released. SW fix available to call
logger".
Then let's have a look at how it's closed out by
Jason Muir:
"Now seeing minimal if any zero state 4
transactions. Closing Peak is complete..."
Oh. It has become 68 suddenly.
A That's how Jason who has closed it -- Jason is a member
of the management support unit.
Q Mm-hmm, so that is one where everyone has been working
on the code trying to develop a fix, been released into
live, and it is closed Administrative Response?
A That is what has happened in this case, yes.
Q If it wasn't so serious to challenge Mr Roll's
recollection on the basis of this -- all these
categories, some of these categorisations are almost
comical, aren't they, Mr Parker?
A I wouldn't describe them as such. I think I do say in
my witness statement that they are the subjective view
of the person doing the closure. I would go on to say
that they were not -- I accept they were not always
right, but in the most cases they were right.
Q Well, that's not accepted, for the avoidance of any
doubt.
You also say that there was no review -- after you
said in your statement that they were subjective, you
also say there was no review undertaken to ensure
consistency or appropriate categorisation?
A That's correct, yes.
Q It's not very robust, is it?
A The codes are used to generally assess the workload. As
long as they are mainly correct they support that
function.
Q But there is no way of checking whether they are mainly
correct, as you have fairly pointed out in your witness
statement?
A That's correct. Yes.
Q Rebut the question: not very robust, is it?
A Depends on the purpose. I would -- the purpose they
were used for was to actually assess the workloads.
They were not expected to be 100 per cent accurate.
Q But accuracy is important for you to have any fair view
of what's actually being thrown up by the system, isn't
it?
A Accuracy is important, yes. These were used to assess
the workload, not for any forensic purpose.
Q And we also know that the proper management -- just as
an aside -- the proper management system wasn't brought
in either. We covered that with Mr Godeseth, you were
here for that?
A Yes.
Q So there was no problem management system brought in,
notwithstanding it was internally recommended, and so
all you're left with is this system of looking at the
codes and seeing how they have been categorised on
closure.
A I'm sorry, I don't understand the correlation between
response codes and the problem management system.
Q Because the problem management system was going to track
what sort of problems were being encountered into
a structured way so that an overall monitoring of the
system could be done, and give an idea and feedback of
where the problems lay, and that was not brought in and
that appears to have been a deliberate decision. We
covered it with Mr Godeseth and you were here. So I'm
saying in the absence of that, all we are left with,
data-wise, are these codes, and I have got an entire
file -- I'm not going to be able to go through all of
them with you -- but I'm going to keep going through
them and I'm going to show you how all of these have
been closed, including all the big categories that
Mr Roll did, so I'm going to ask you now; do you accept
that it was unsatisfactory not to have a proper system
in place to ensure these codes were accurately
allocated?
A For the purpose for which I was using them I cannot
accept that. They were used as a general guide to the
workload.
MR JUSTICE FRASER: When you say, "Purpose", you mean the
purpose when you were doing your job at the time, not
the purpose in compiling your spreadsheet for the
witness statement?
A Yes. Correct. Yes.
MR JUSTICE FRASER: Because you have used them -- I think
you have been quite fair, you have used them for your
spreadsheet but you have taken the way that the person
categorised them, you haven't made a separate
categorisation of your own.
A That's correct.
MR JUSTICE FRASER: If you are going to start going through
your file we will need a five-minute break for the --
MR GREEN: My Lord, shall we take that now? We have got
quite a lot to cover, so ...
MR JUSTICE FRASER: Yes. Now, you do only have two hours.
MR GREEN: I understand that, my Lord, that's why I'm going
at some pace.
MR JUSTICE FRASER: And some of it, if I may, with
respect --
MR GREEN: Was a bit long?
MR JUSTICE FRASER: Well, it also verged quite a long way
into prior submission before you actually put the
question. It's really about evidence, not arguing the
case. So shall we have the five-minute break now?
MR GREEN: By all means.
MR JUSTICE FRASER: Right. Mr Parker you get a five-minute
break, I encourage you to leave the witness box, move
around, stretch your legs, we will come back in at two
minutes to twelve.
(11.55 am)
(A short break)
(12.02 pm)
MR GREEN: Mr Parker, on the basis that you haven't reviewed
any of these Peaks to look at their content, and you
have merely relied on the codes that have been
allocated -- yes? Is that right?
A Indeed that's correct, yes.
Q So I'm just going to put some example ones to you to
save time.
A Thank you.
Q Let's look at Code 62 which is, "No Fault in Product".
A Yes.
Q We will take an example at -- well, first of all can you
just tell the court what you think that means? What
does, "No Fault in Product", mean?
A I would probably be better to refer to the document,
but, "No Fault in Product", would generally be used
where we cannot identify a software fault in the
particular piece of the application being looked at.
Q Did you go back to the document before you allocated the
figures in the table on F/1839 to the ones that had
potential software error?
A I did. I reviewed it.
Q Did you? You actually went back to this document?
A I reviewed the content of it, yes.
Q When you say, "Reviewed" --
A I read through it once more. Some of those category
codes are not ones that I -- when I was a technician --
would have used on a regular basis because they were
development codes, so it was necessary for me to refresh
my memory.
Q Okay. Well, let's be fair to you. Let's go to
{F/823/23}. We are going to look at Code 62 which is
9.1.3, "No fault in product".
A Yes.
Q It indicates that:
"The product is working to specification. No
changes are required in software code, scripts,
hardware, documentation, work instructions or training
plans. Really indicates that the previous lines of
support have completely miss-diagnosed the problem".
Yes?
A That's what it says indeed, yes.
Q Is that -- did you read that one?
A Yes. I would have read that one.
Q Well, "Would have", and, "Did", are different, aren't
they?
A I did read that one, yes.
Q Okay. Let's look, if we may, now, please, at {F/97/1}.
This is a phantom transaction one. We have also seen
this one before. You can see in the, "Call status", at
the top, "Closed -- no fault in product". Do you see
that?
A I do.
Q We can see that -- if you come down just below -- it is
about the fifth line down, 14.04.01 at 12.55:
"Information: PM ... wishing to complaint about
ongoing system problems. PM had previous complaint open.
That PM was under impression correctly that it would
only be closed with his permission".
Now, pausing there, the Postmaster was right about
that. They should be closed to the SubPostmaster's
permission, shouldn't they?
A That would be a Help Desk process, so I would think so,
yes.
Q Is that something you actually know about or are you
guessing?
A That is something I do not have personal experience of.
I would expect that to be part of the Help Desk process.
Q Okay:
"PM very unhappy about this".
Now, if we go down to about three-quarters of the
way down that page you will see 17.0 4.01, 9.48, and the
word, "Contacted".
A I have got that, yes.
Q "I have left a message on Ki Barnes' voicemail as the PM
is now complaining about her. I was speaking to her
about the last complaint call and we both feel that this
PM is complaining unjustly. She has been in contact
with him and I feel he is complaining because the
feedback has been advising it is user error whereas the
PM thinks it's software".
Yes?
A That's the notes, indeed.
Q So that's sort of suggesting that they have given the
feedback to the SPM that it is user error and the SPM is
a bit distressed and cross about it?
A Suggest that, yes.
Q Okay, and there are a number of further entries. I will
give you an example of one if we go to page {F/97/2}.
You can see at the bottom of that page in the yellow
box, half way down:
"The system is still playing up in that the screen
is hanging in the middle of transactions -- PM did
transaction ... but left office for 1 hour -- when he
came back the monitor had 141 first-class stamps on
screen totalling £38.07", see that?
A Yes. I see that.
Q You would accept that that is not how the system is
supposed to work. Is that fair?
A That's fair.
Q If we go over the page, please, to page {F/97/3}. At
the top:
"I have advised that problem may be due to
environmental issue. May be investigated as such" --
MR JUSTICE FRASER: Where are you reading?
MR GREEN: Sorry, the top yellow box.
MR JUSTICE FRASER: You mean the top yellow box?
MR GREEN: I'm so sorry, top yellow box. Do you see that,
"Possibility of hand-held radios or x-ray machinery, or
is it more likely a software problem", and then {F/97/4}
over the page, halfway down, just a bit less than
halfway down, the letters, "PM would like to add current
complaint"?
A Just below the bold text, isn't it. Yes.
Q "PM would like to add to the current complaint that
transactions are currently appearing and disappearing on
screen and also the PM's counter printer has not been
working either. PM had a message on screen stating to
abort transaction, then the screen froze and timed out.
When logged back in, the transaction was not on screen.
PM re-booted the printer, and a receipt for this
transaction was printed. Now the printer won't print
any receipts whatsoever for any transaction. This is an
ongoing problem".
That's not how the system is supposed to work, is
it?
A It's not, no.
Q And if you look a little bit below that it says:
"Information: PM feels that the system is
unreliable. PM cannot trust this system".
A That's what's said, yes, indeed.
Q And if the PM's experience was as recorded, which you
don't know about, that's not an unfair reaction, is it?
A No. It's not.
Q And if we go to page {F/97/5} --
MR JUSTICE FRASER: Just before you do, go back to {F/97/4}.
You see towards the bottom there is an entry, 1 May
10.56? It's been 20 lines up.
A Yes.
MR JUSTICE FRASER: Do you see that one? Underneath it
says, "Information: ROMEC". Do you see what ROMEC do?
A Engineering. They were the hardware engineering team.
They also did Environmental Surveys.
MR JUSTICE FRASER: Mr Green?
MR GREEN: If we go over the page to page {F/97/5} and look
at the bottom, we have got -- there is -- just -- 3 May
2001, 15.34:
"Information: ROMEC have been to the site and done
all that they can do. There is no more UK SS2 can do
for this site"; yes?
A Indeed.
Q And just below that:
"Ki Barnes has called in. I am unsure as to what to
do with this call now. ROMEC have been to site and
state that they have actually seen the phantom
transactions, so it is not just the PM's word now".
A That's what it says, indeed.
Q "They've fitted suppressors to the kit but the PM is
still having problems. As yet there's been no recurrence
to the phantom transactions but there still may be
problems". Do you see that?
A I do, yes.
Q So there we have got third party witnessing of the
problem by ROMEC, haven't we?
A We have, yes.
Q If we go to page {F/97/7} please:
"I now have pressing evidence to suggest that
unwanted peripheral input is occurring, the likely
source being the screen. This has been seen at old
Isleworth ..."
This is in the yellow box at the bottom.
A Yes, I have got it.
Q Do you have that:
"And warn with OI being the best site. When the PM
has been asked to leave the screen on overnight I have
observed system activity corresponding to screen presses
happening with no corresponding evidence of either
routine system activity or human interference. The way
forward now is to correlate this with Microtouch
complied monitoring software and to this ends Wendy is
arranging for installation of the kit on Friday ..."
And so forth. Do you see that?
A I do.
Q So that's further evidence there, and then if we go to
page {F/97/9} please, the bottom of page 9 --
A Yes?
Q "Phantom transactions have not been proven in
circumstances which preclude user error".
A Indeed.
Q "In all cases where these have occurred a user error
related cause can be attributed to the phenomenon"?
A That is what it says, indeed.
Q So the -- go over the page if we may {F/97/10}:
"I'm therefore closing this call as no fault in
product"?
A That's correct.
Q Is that no fault in the system as a whole or no fault in
the Fujitsu software or no fault in either? What does
that mean?
A I would interpret that as being no fault in the
application software.
Q But it is something that people would have been trying
to work out and investigate from all perspectives.
A There was a lot of work going on there, indeed.
Q Yes, and those perspectives would also have included
trying to see if there was any underlying software
cause, as well as hardware.
A Yes.
Q And if we go, please, to {F/100.1/1}, that is Peak
0068327?
A This is a different one I assume from the previous one;
yes?
Q Yes, and this is priority status B, and that is
a relatively high status, as we have established?
A That's right.
Q And it's closed, "No Fault in Product", and it looks as
if -- it says here:
"PM reports he has been having phantom transactions
continually for months ..."
MR JUSTICE FRASER: You have really got to tell us where you
are on the page.
MR GREEN: I'm so sorry -- at the top my Lord.
MR JUSTICE FRASER: At the very top? Yes.
MR GREEN: Very top. Still persisting, and then, "Advice",
just a little bit further down:
"Advice: PM reports that 2 resistance monitors were
sent out but only 1 was replaced as 1 was faulty. The
resistance monitor that was replaced is causing the
problems".
Then if we go down towards the bottom of that blue
box you will see, "Information", in the left-hand
Marcher under 25 July '01, 10.35:
"This office has been identified as a problem office
and as such is being monitored. Wendy Kerrigan has
asked SSC/Development for Performance Monitoring at this
outlet. I suggest this goes to SSC possibly for the
attention of Pat Carroll as he is dealing with phantom
transactions".
Who was Pat Carroll?
A Pat Carroll was one of the senior technicians within the
SSC.
MR GREEN: Was he elite or super elite in my learned
friend's jargon?
MR JUSTICE FRASER: Well, that's not really -- the witness
has already said he didn't agree with, "Super elite",
and, "Elite", and he doesn't know what Mr de Garr
Robinson is doing when he is categorising people.
MR GREEN: Was he at your level of seniority or close to it
or was he similar to Mr Roll? Where was he.
A He was above Mr Roll, a similar level to myself at that
time.
Q So it was quite a serious issue, having phantom
transactions, wasn't it?
A It would be, yes.
Q And thence the category B priority?
A That -- yes. That's true, yes.
Q And if we look at page 2 of that {F/100.1/2} we have got
5 September 2001 in the yellow box, the lower yellow
box:
"Following a significant amount of monitoring we
have been unable to definitively link any
equipment/environmental issues to any particular event.
There have been incidents which showed a possible
correlation between system activity and phantom
transactions. These pointed to a touch screen problem
and as a result the screen was replaced with a resistive
model. As this produced no measurable improvement it
has to be assumed that the problems were user related".
That's closed, "No Fault in Product"?
A It is indeed, yes.
Q And if we go, please, to {F/174/1} this is a KEL which
2000-2004 we can see. Do you see that?
A I do.
Q And it is items appearing on stack without being
selected. That is essentially phantom transactions. An
example of phantom transactions?
A It could be indeed, yes.
Q Symptoms:
"There have been several calls over the last few
months where Postmasters have reported phantom sales.
Items appear by themselves for which the PM has not
pressed an Icon. These may be individual items or
several of the same item. Sometimes when no one has
been near the screen items may appear".
Now, pausing there, your point earlier is when you
get a pattern of these things happening you have to take
notice that it might be system issue?
A We would do, yes.
Q Problem: Since the system cannot put items on the stack
without being told to, the desktop must be receiving
specific requests to sell the items in question. In the
cases I have looked at I could only conclude that either
the screen or the keyboard has been generating key
sequences. A more recent case revealed that the cable
between the screen and the base unit was the root
cause".
Then we see, "Solution -- ATOS":
"In the first instance send an engineer with
a recommendation to replace both the keyboard and the
screen. (Also check whether there is a problem with the
screen cable)".
There are detailed instructions then in terms of
evidence for Pat Carroll to deal with environmental
issues, so would your answer to the previous -- on the
previous Peak be the same that where it is No Fault in
Product what has been recorded is the conclusion is it
doesn't appear to be a software issue, whatever else it
may be?
A It would, yes.
Q And if we now have a look, please, at {F/718/1} --
sorry, yes, F/718 -- now, we are turning here to
Code~70, "Avoidance action supplied". Could you tell
the court what you understand that to be?
A It could be classified as an actual work round we have
advised on some action to be taken to avoid the symptoms
that have been described.
Q Well, let's pause there. Do you accept it is to be used
where there is a fault in the product?
A Not necessarily.
Q Well, let's have a look at {F/823/24} to see what the
document that you recently considered says. What we are
looking for here is avoidance action supplied, and
the -- it's actually over the page, if you have got page
24 there, it's 9.1.10, and the word, "Is", which I
emphasised in my intonation, is in capitals?
A It is indeed.
Q So the correct answer to that question would have been,
"Yes"?
A It would indeed.
Q And you now accept that?
A I do.
Q Okay. So having done that, can we go back to {F/718/1}
please? And this has only been given a priority of C.
Do you see that?
A Yes I do.
Q It is non-critical?
A Yes. Yes I do.
Q And the Service Level Agreements treat priority Level A
and B to the other priorities, don't they?
A We don't have SLAs we have OLAs but yes, there are
different operational timescales to them, yes.
Q And it is also stricter for compliance with priority A
and B than it is for --
A It is, yes.
Q -- the consequences are different, aren't they?
A The consequences are different. The actual operational
timescale which we are expected to respond to is lower
as you go up the priorities from E to A.
Q Yes, and there are liquidated damages thresholds for the
engineer's service and resolution of calls at the Help
Desk for priority A calls and priority B calls, but
there aren't for priority C calls in the same way.
That's fair, isn't it?
A I believe that was the case.
Q Okay.
So as soon as something is priority A or B it means
that those liquidated damages provisions are in play,
but if it's C they are not in play.
A They would be in play for the hardware side but not if
it's a software fault.
Q Okay. Let's have a look. {F/718/1}. This we can see
has Avoidance Action Supplied at the top; yes?
A Yes indeed, yes.
Q Which we have seen is to be used where there is a fault
in the product.
A Yes.
Q And if we go down to the yellow becomes and under the
double tram lines you will see:
"PM states that he has rolled over but the system is
telling him that he hasn't -- PM states that he is in
balance period 7 and he states he is getting the message
'wrong trading period MSG 31318 office balancing
error'".
Yes?
A Yes.
Q You will see in the log line below:
"Non-zero trading position ... on rollover of branch
by user WMC002 to trading period 8".
Do you see the problem?
A I do.
Q So this is a type of payments mismatch issue, isn't it.
A I would be hesitant to classify it as that. All I can
say is it's an office balancing error. That's all I can
see there.
Q Well, just give me a second. (Pause)
Let's go forward, if we may, to page {F/718/2}. If
we look at the bottom yellow box please, Cheryl Card.
Who is she?
A She is a member of the SSC.
Q And who is Lorraine Elliott?
A She was the SSC administrator at that time.
Q And Sheryl card in the bottom yellow box, 27 September
2010, 15: 16:
"The problem occurred on 15/09/20 when stock unit
02 rolled over. This was originally reported, as per
KEL, BALLANTJL759Q, in call PC0204537 ... but for some
reason the call was closed without being investigated.
There is a known problem with the use of the Cancel
button during the stock unit rollover. This is fully
described in KEL WRIGHTM33145J".
Do you recognise that KEL number?
A I don't, no.
Q But that is the payments mismatch number, isn't it?
A I did not recognise it as such. Without seeing it ...
Q Okay, because you didn't look at any of these before you
gave your evidence and compiled the spreadsheet?
A No I didn't, no.
Q And if we go to page {F/718/3}, top of the page --
I think someone may want to say something?
MR JUSTICE FRASER: No.
MR GREEN: Apparently not.
MR JUSTICE FRASER: Or not yet.
MR GREEN: Top of the page on page 3:
"As agreed routing to Gareth Jenkins as at bus apps
desk for advice on how to correct the differences"?
A That's right. Yes.
Q Next yellow box down:
"The branch accounts will need be corrected ..."
A Yes.
Q And advice about how to do that, and if we just go to
page {F/718/7} please, if we look at the severity in the
blue box at the top of the page, it says, "Critical",
doesn't it?
A Yes it does.
Q Yes. "Severity: Critical", but we saw that the Peak
incident management system records it as non-critical?
A It recorded it as C I believe, didn't it?
Q C is non-critical. The definition of C is,
"Non-critical".
A Yes. Correct.
Q Then at the bottom of that page in the yellow box:
"The software issue that caused the discrepancy is
being monitored and all instances are being reported
directly to POL duty manager with all the relevant
figures and reports. I have confirmed that this issue
at this office has already been reported through. P O L
will get in touch with PM regarding any remedial
actions. Closing call ... Call type category 70 ...
avoidance action supplied"?
A Indeed.
Q So there has been pretty detailed investigation of
what's going on and what's gone wrong and it's closed as
Avoidance Action Supplied because that's where there is,
by definition a fault with the system?
A Indeed.
Q So it would be fair to say that a fair categorisation,
if you had read the definition of, "Avoidance Action",
as you say, a fair categorisation on your spreadsheet
would have included that code, wouldn't it, for
potential software errors?
A That code, in my experience, has not always been used
purely for potential software errors, and that's why I
categorised it in a different way from that in the
document. That's the best I can -- you know. Avoidance
Action Supplied has not always been used purely for
a software fault.
Q Well, there are two layers of chaos. One is the way
that categories are assigned. Do you agree with that?
A I agree that they are not checked after use.
Q And that they are highly subjective?
A And that they are very subjective, yes.
Q And the second point is that when you were compiling
your witness statement you went a bit off piste and
departed from the definition that you say you read. Is
that fair?
A It's fair to say that I used the definition my
experience dictated rather than that in the document.
Q You didn't think that was important it make clear to the
court?
A I forgot that that was exactly what I had done in that
circumstance when I prepared that a few months ago.
Q Mr Parker, I will give you an opportunity to consider
this. Is the truth of the matter that when you
looked -- well, is the truth of the matter that you had
not specifically looked at the words of the Avoidance
Action Supplied definition and you went with
recollection without considering the tension between the
definition and your recollection?
A I read the details in that document to refresh my memory
and allocated the codes based on my experience and the
document.
Q Well, in that case, it appears you have taken
a deliberate decision to exclude a category which you
knew included a fault with the product from Potential
Software Error column. Is that what you did?
A What I did was I used my experience to put that in what
I believed to be the right category heading for it.
Q So it was a deliberate decision to depart from the
definition in the documentation we have looked at and
record it as not having even the potential for
a software error? Is that your evidence?
A My evidence is that my experience is that it is used
more times when it is outside a software fault than
inside.
MR JUSTICE FRASER: I wonder if you could put the question
a third time.
MR GREEN: Was it a deliberate decision to depart from the
express words that you had looked at carefully -- or
looked at?
A Yes. It was.
Q Why did you think that was an appropriate thing to do
when giving your witness statement knowing that you were
challenging Mr Roll's recollection by doing so?
A Because my -- that was the value and the way it was used
based on my own experience, so I felt that was a fair
way to define it.
Q Let's look and consider your experience.
What we have seen so far on this example is that
your experience conflicts not only with the content of
this example, but with the definition in the policy
document.
A It conflicts with the definition, certainly, yes, and
this particular example.
Q I suggest to you that Mr Roll's recollection of what he
was doing is correct in the light of what we have seen
so far, isn't it?
A I stand by the original use of that spreadsheet. It is
used to classify, in general, the workload that the
support units do, and that's the way I used it when
I was trying to classify Mr Roll's work.
Q Okay. Well, let's have a look at {F/93/1} then please.
Again, this is actually priority B, business restricted;
yes?
A Indeed, yes.
Q And it is closed for Avoidance Action Supplied?
A Yes.
Q "PM reports she had a discrepancy of a gain ..."
And then it runs out. If we look at the top of the
blue box, please, 15 March 2001:
"PM reports she had a discrepancy of a gain, so she
rolled everything over, and then redeclared her cash,
and adjusted her stock then tried to roll over again by
going to Balance report F6".
If we go down a little bit further in relation to
further advice:
"PM reports that after she had rolled over stock
unit and office she redeclared her cash".
Then underneath that:
"When it got to the print, preview and exit screen
she chose preview like she always does but then it
printed off final balance instead of the trial balance
like the PM wanted. Now she is in CAP01, period 01,
instead of CAP52 of the previous year. Business period
2. Period 2. PM believes this is a software issue.
Search KEL couldn't find a reference." Yes?
A Indeed it does, yes.
Q Now if what the PM was saying was happening the system
was not working as it should, was it?
A That's true, yes.
Q If we go down a little bit further you can see that just
to rule out a calibration error on the screen they
checked calibration.
A Yes.
Q And the PM says calibration is fine, not out of
alignment, because that was an issue that sometimes
happened, wasn't it?
A There were screen calibration issues, yes.
Q And if we go over the page, please {F/93/2}, in the blue
box, if you come down underneath 1, 2, 3, 4, 5, 6, it
says:
"I believe and also PM confirmed that the 'preview'
button had been pressed for the second time which may
have resulted in final balance printout and SU roll to
CA P1".
So that's your point about when there is a pattern
you have to take it seriously?
A Mm-hmm.
Q And then it refers to two other Peaks. Do you see
those?
A I do.
Q And a KEL, PSTEED34T?
A That's right, yes.
Q "I've advised PM not to press preview or print button
which may cause this type of problem again. PO now have
stock unit 1 CAP ahead of office and therefore PM need
to contact NBSC and seek help on what to do on Wednesday
before rollover"; yes?
A Yes indeed.
Q So the Postmaster has been left to deal with the
consequence for rollover with the help of the NBSC?
A Indeed that's what those notes say, yes.
Q Then at the bottom of page 2, "Have looked at ..."
In the blue box, Martin McConnell. Who is he?
A Martin McConnell was a developer I believe.
Q In the penultimate yellow box he tried to reproduce the
scenario, putting the system under load and so forth?
A Yes.
Q And found he couldn't.
A Yes.
Q Not sure what to suggest. He says:
"Have looked at the PS log, also this does not
reveal any unexpected impulses from other applications.
Spent a few days on this as has Alex Kaiser (in previous
incarnations of this problem)".
There had previously been examples of it. Who is
Alex Kaiser?
A I don't know.
Q "I have no choice but to pass back as insufficient
evidence but would ask that EDSC keeps an eye out to see
if any patterns arise or any sign of the problem
actually being reproduced at will".
Insufficient evidence there and then if we go to
page {F/93/3}:
"Have looked at the PS log".
Got the same message again and then it's actually
categorised as Avoidance Action Supplied.
A It is.
Q Yes? Which is correct where there is a fault in the
system, as we have seen.
A According to the documentation, that's correct.
Q And if we look at the two Peaks that it refers to --
MR JUSTICE FRASER: Just before you do that, on {F/93/3},
Mr Parker, where it says:
"Clearly we need to keep an eye on this type of
situation, the systems we have tried to reproduce on
contains adding all bug fixes ..."
Do you read that as meaning the systems on which
they are trying to replicate the problem?
A Yes I do.
MR JUSTICE FRASER: Is that the same as the expression,
"Test rig", that has been used in other areas?
A Not necessarily. I would think so. I mean, all I read
that to mean was that they weren't sure because the
version of software on the systems they were trying it
on were not the same as what's out in the --
MR JUSTICE FRASER: In the field?
A -- in the field, yes. That's how I would read it.
MR JUSTICE FRASER: Mr Green, back to you.
MR GREEN: I'm most grateful.
If we just look briefly at the -- there are two
other Peaks, I'm not sure I have got time to deal with
them.
MR JUSTICE FRASER: Remember you need to leave time for
re-examination.
MR GREEN: My Lord yes.
Can we just briefly, please, look at {F/589/1}? You
will see this is non-critical and closed with Solicited
Known Error. Do you see that?
A I do.
Q That is a problem of duplicated pouches, as you see
underneath the two tram lines.
A Yes.
Q And the amount that was renned in twice was £25,000.
A That's what the notes says, yes.
Q It's pretty serious for the SubPostmaster?
A I would think so, yes.
Q But category priority is C, non-critical?
A That's correct.
Q And at {F/589/3} if you look down the penultimate blue
box, 5 March 2010, 12.33:
"POL have been informed of the error. Hopefully
they'll issue a TC to correct loss at the branch. The
underlying problem caused by using previous button
during or just after scanning pouch barcodes, is still
under investigation".
It is closed as Solicited Known Error?
A That's correct.
Q If we look, just going forward for a moment to
{F/1156/1} we can see there again C, non-critical,
closed, No Fault in Product, P doing cash declarations
every now and again has a major loss, and you can see in
the yellow box towards the bottom underneath, "Log",
about three-quarters of the way down:
"PM has had cash declaration problem throughout the
year and it losing a lot every now and again".
Do you see that?
A I do.
Q "He 'phoned up helpline told him can't of declared
properly. He states that he losses £2,000 then jumps
suddenly to £4,000, one point they lost £8,000 and is
always losing money. PM stated that he has three post
offices, only happens on this site", and then about
five, six lines up from the bottom:
"Done a declaration this morning and had a £6,000
also. It shows no error message when doing it. No
report prints out only print-out of cash declarations".
Pausing there, if the PM is correctly reporting
that, then that would be very serious for the
Postmistress or Postmaster, wouldn't it?
A If it is being correctly reported, yes.
Q And it would not be the system working as it should.
A If we attribute it as a system fault, yes.
Q Let's go forward, please, just to {F/66/1}, this is Peak
0055964. It is a receipt and payments mismatch. Do you
see that? The summary?
A Yes I do.
Q Classified as non-critical, and you can see that in the
top of the blue box at -- on 13 October 2000, "PM is
doing a trial cash account and it is saying receipts and
payments don't match". Do you see that?
A I do.
Q And at the bottom of that blue box, if you go up a few
lines in that last big paragraph you will see on the
right-hand side:
"PM appears to have dealt with her losses and gains
correctly for week 28 by putting into susp account
unable to trace mismatch"; yes?
A Yes.
Q If we go over the page to page 2 please {F/66/2} in the
blue box we can see that the Regional Network Manager is
still not happy, the second blue box down, halfway down:
"RNM still not happy. His PO is closed and PM wants
to balance".
A Yes.
Q Now, this is still only being given a non-critical
priority. Why is that? Category C?
A I can only assume that whoever was looking at it didn't
see fit to actually change it.
Q What should it have been? A B?
A I would probably have classified that as B, yes.
Q And if we read on in that box you will see:
"STA advised me to call EDSC to find out how long it
would take to action and resolve a call. EDSC said they
were dealing with it now and they will speak to me asap.
Spoke to SMC. They said PM was informed incorrectly. He
was told the problem would be resolved by the end of
today but it is only C priority and is only just being
looked into".
So classifying it as a C priority rather than a B
will have an impact on how speedily it's looked into,
won't it.
A Certainly B priorities would be looked into before Cs.
It does not imply that we would deliberately wait
a period of time before looking at a C.
Q Okay. Let's look at the bottom of page 2, penultimate
box which is a yellow one, 18 October 2000. Last line
of that:
"Advised PM that third line are investigating the
mismatch problem".
See that?
A Sorry, you have lost me.
Q In the yellow box at the bottom?
A The 14.52 one?
Q Yes. That's it?
A Yes?
Q Last sentence, so second-last line on the right.
A "Advised PM that third line" -- yes. Got you. Yes.
Q "Third line are investigating the mismatch problem".
That's the sort of thing that third line support
would look into, isn't it?
A Well, generally no. If we are describing a discrepancy
here, discrepancies are a part of the operational
running of the Post Office, and it would be the NBSC who
would normally deal with that kind of thing. It would
only come to the third line support group if there was
a reason to believe it was a software fault.
Q Let's have a look -- help you out on that.
A Okay.
Q Look at page {F/66/3}. Bottom blue -- penultimate blue
box. Se what's going on, just before halfway down:
"I'm not sure how much of this is down to invalid
measures and counter measures but clearly what should
NOT have happened no matter how much the user tries, is
the system resulting in a cash account mis-balance"?
A Yes.
Q So it does appear to be a software issue, doesn't it.
A It does indeed. That is a developer putting in that
update as well. Yes.
Q So that's pretty helpful, and then if we look over the
page on page {F/66/4} and they say, in the yellow box:
"We have done the necessary paperwork for this.
Development have already corrected this particular
fault, with the opening figures and it will be fixed at
CI4".
What is CI4?
A CI4 is a release of the system.
Q Okay, great, and that is closed as, "Reconciliation
Resolved"?
A That's correct, yes.
Q Category 90?
A That's correct. Yes.
MR JUSTICE FRASER: I don't think you are going to have time
to do any more of these.
MR GREEN: I'm not going to do any more of those, my Lord,
I'm cutting it there because -- not least because the
witness accepts that he didn't go through them before he
gave his witness statement.
Just briefly, if I may, Mr Parker, in relation to --
just go back for a moment in relation to the injection
of transaction data, in your witness statement at
paragraph 22 on page 5, that's {E2/11/5} I will just be
very brief on this if I may, but your evidence to the
court was that you knew about the ability to access
remotely when you gave this witness statement.
A Yes.
Q And you knew about the ability to do so by piggy backing
rather than using the correspondence server. That's
what you told the court.
A Yes. Go on. Yes.
Q Well, is that true or not?
A It is true, yes.
Q So you did know about that when you gave your January
statement?
A I knew that we could insert transactions at the
correspondence servers, and it was my belief that that
is what we did.
Q Did you or did you not know when you made your January
statement that you could insert by piggy backing rather
than through the correspondence server?
A If by, "Piggy backing", we mean going on to the counter
and doing it from there, no, I wasn't aware at that
stage. It was only when we started to investigate in
order to provide the evidence that colleagues told me,
well, yes, we did it occasionally at the counter, and we
then investigated more to classify that.
Q Who were the colleagues who told you that?
A I think it was John Simpkins, I think.
Q Any others? Because that's only one and you said,
"Colleagues", and you say, "Colleagues", in your witness
statement as well.
A I checked it again with another one who I believe was a
gentleman named Dave Seddon and he said, "Yes, I do
remember doing that".
Q Did you check with anyone else?
A By that stage we were starting to look into classifying
it so I didn't need to check further because we were
actually producing Peak references where I could see it
being done.
Q Okay, well, the last topic, if I may, very briefly, just
to look at the back of your witness statement where you
did a table, it's at {E2/11/23}. There are three
particular things I want to ask you about. First of
all, who put this together?
A We were given a list of references and various members
of the team would analyse them and give back the
comments.
Q Who gave you the list of references?
A I think it was the legal team.
Q Okay, and who in the team analysed them and gave the
comments?
A I had a spreadsheet reflecting it but I can't remember
all the names for you. It will be --
Q Can you remember anyone?
A I remember John Simpkins, Mark Wright, Dave Seddon. I
believe there was at least one other.
Q Was there any reason why you didn't put the names in the
witness statement?
A Didn't see it as being relevant. They were all members
of my team and I rely on my team to do the technical
details.
Q Okay, and do you know where -- was it your understanding
that the comments that they put in were their own
comments or were they provided for them by someone else?
Do you know? What was your understanding?
A They were their own comments.
Q And did you check them at all or did you just accept
them on trust from them?
A I read through them but I do trust my team to get the
technical detail right.
Q Just very briefly, they comment on the issue of
transaction corrections in various places. Is that
something you know about the system for or not?
A Is that something I know about the system for? Sorry,
I don't ...
Q Did you understand how Post Office decides to issue
a TC, who does it and ...
A No, I don't.
Q Are your team familiar with that, or ...
A We are only familiar with the processing of them, not
how they are actually generated.
Q If we look -- I was going to take you through the first
few and then have a look at another one by example
because we're short of time, if we look, please, at
{E2/11/38}, now looking at that example, do you know --
you are suggesting there that a -- do you see the
response to Mr Coyne there? In the, "Response to
Mr Coyne", column?
A Got you, in the Fujitsu's comments, the first column of
those two, yes.
Q Yes. You see a REN in reversal not particularly common
transaction, prohibited later on.
A Yes.
Q Do you see that?
A I do.
Q Where has that come from? Is that a member of your
team?
A Of my team, yes.
MR JUSTICE FRASER: But you don't know, I imagine, on the
face of this, which of those gentlemen.
A I don't my Lord, no.
MR GREEN: And if we look at -- would you give them any
guidance as to how to do this or not?
A Other than getting them to read the context that the
problems were described in, no.
Q Do you know if anyone gave them any guidance?
A Not aware of it, no.
Q And was it your idea to produce the table?
A What -- in this format?
Q Yes?
A I will be honest, I can't remember. It seems like
a logical format to do things in. I'm not sure whether
I generated it or not now.
Q Is there any reason -- well, did you -- do you know
whether the team had a draft of Dr Worden's report in
front of them before they filled in these comments?
A I don't know. I don't think they did. I think we just
gave them Coyne's report for them to get the context.
MR JUSTICE FRASER: You said, "We", again.
A Sorry, I gave them it, yes.
MR GREEN: My Lord, in the circumstances I will deal with
everything else by way of submissions.
MR JUSTICE FRASER: Yes. Mr de Garr Robinson?
Re-examination by MR DE GARR ROBINSON
MR DE GARR ROBINSON: Mr Parker, there were just a few
questions. At the beginning of your cross-examination
some time was taken on the letter at {H/253/1}. Perhaps
we could look at that letter again. You will recall
that this is a letter written by WBD to Freeth's on 20
March.
A Yes.
Q Which starts by saying:
"We understand from Fujitsu that the SSC has been
carrying out further work to identify any Peaks that
show transactions being injected at the counter ..."
A That's correct. Yes.
Q You have seen that letter before, earlier on.
Could I ask, who is it who provided this
intelligence to Post Office?
A I provided the intelligence. It was provided to me by
a member of my team.
Q I see, and were you aware or not aware or were you
involved in the process by which this further work was
done?
A I wasn't involved in it, no. A member of my team -- the
thought occurred to him that he could add some other
search terms into the work that he had done previously.
Q And so what happened? Did you then become aware --
A I did become aware. He came to me with the new data.
Q And what did you then do?
A I then informed the legal team.
Q Now -- and that then resulted in this letter. You were
asked a large number of questions which appeared to me
at least to carry with it the implication that there was
some attempt on your part to conceal the fact that this
extra work had been done. Would you care to comment on
that suggestion?
A That suggestion would be wrong. When I was aware of it
and I had a chance to actually read it I sent it on to
the legal team so that appropriate action could be
taken. I was actually quite pleased that a member of
the team had taken it upon himself to get even more
accurate data.
Q You were also asked a number of questions which I think
were based upon the implication that in amending your
witness statement, your third witness statement as you
did, again, there was an attempt to conceal from someone
the fact that this extra work had been done. Would you
care to comment on that? I'm making what was implicit
explicit. Would you care to comment on that suggestion?
A I have, at no time, attempted to conceal anything. I'm
just trying to get the right data for the court which
can be difficult sometimes when you are going back
fifteen years.
Q Thank you, Mr Parker. Just another few questions, if
you will give me a moment.
The majority of the time that was spent
cross-examining you was spent in an effort to suggest
that the spreadsheet that you put together analysing the
output of the SSC during Mr Roll's involvement and the
output of Mr Roll's during his employment by Fujitsu was
misleading or unreliable or unrepresentative. I would
just like to raise that point squarely with you to give
you an opportunity actually squarely to address the
suggestion that that is the case.
A It's not unrepresentative. We use -- although response
codes can be subjective, they are our only reasonable
way of judging our workload, and we use it for that
purpose. Since I was attempting to compare Mr Roll's
workload with the workload of the unit as a whole, I
felt that was a reasonable way of doing it.
Q It was put to you that accuracy was important. Could I
ask you to comment on the question whether you think
there has been any lack of accuracy or any particular
accuracy in the process that you attempted to do?
A I have been accurate with the data I have. I accept
that you may find a few Peaks where the response code
does not tally with the document, but when you are
talking about 220,000 Peaks I think human beings will
make those errors.
Q In relation to particular Peaks you say you could point
to a few Peaks, you were taken to a number of Peaks in
which it was suggested that the categorisation was
wrong, or the closure category was wrong.
A Yes.
Q It was suggested to you that -- I think with the
implication that you should have looked at these Peaks
before you gave your evidence. Now, by my tally, most
of the Peaks that Mr Green took you to were Peaks that
related to a period during which Mr Roll was not
employed. Do you feel it would have been appropriate
for you to look at Peaks outside that period for the
purposes of analysing -- doing the analysis that you did
in your spreadsheet?
A For the purposes of that analysis, no, and trying to --
even for that analysis period, which was 27,000 Peaks, I
couldn't possibly read all of them.
MR DE GARR ROBINSON: My Lord, I have no further questions.
Thank you Mr Parker.
MR JUSTICE FRASER: Thank you very much. Just give me one
second. I have a couple of questions.
Now, in answering these questions, if you could
avoid the first person plural --
A I understand my Lord.
MR JUSTICE FRASER: -- and also the expression, "My team",
because I find it easier if we can deal with names. You
have got on the screen {H/253/1} --
A Yes?
MR JUSTICE FRASER: -- which Mr de Garr Robinson has just
been asking you about now. Am I right that the extra
work that was being done was being done by Mr Simpkins?
A That's correct.
MR JUSTICE FRASER: Is that correct?
A That is.
MR JUSTICE FRASER: Is it the case you asked him to do that
work or you just found out he was doing that work.
A I did not ask him to. He did the original work and then
came back to me some period afterwards and said, "I have
just thought of this".
MR JUSTICE FRASER: Right. Now, when did he do that?
A I cannot be exact. It was shortly before I gave it to
the actual legal team because I would have looked at it,
read it, and then passed it on.
MR JUSTICE FRASER: Well, if we could avoid, "I would have",
I would like to know what you can remember doing and if
you can't, that's, of course, understandable. Are we
talking in the last couple of weeks or earlier than
that?
A Last couple of weeks prior to 20 March when this was
generated?
MR JUSTICE FRASER: Yes.
A Yes, it would have been in that time period.
MR JUSTICE FRASER: So it's some time -- and why want to put
words into your mouth so if you can't remember --
A Understand.
MR JUSTICE FRASER: -- it's some time in 2019?
A Oh yes. Certainly.
MR JUSTICE FRASER: After or before the start of the trial
so far as you know?
A It was after the start.
MR JUSTICE FRASER: After the start of the trial. And when
did you decide that you wanted to make corrections to
your third witness statement.
A I can't remember exactly.
MR JUSTICE FRASER: Well, after or before the start of the
trial?
A After.
MR JUSTICE FRASER: After the start of the trial?
A Yes.
MR JUSTICE FRASER: Before this week.
A Yes.
MR JUSTICE FRASER: A couple of weeks ago? Last Friday? Or
can't you remember?
A I'm sorry I can't.
MR JUSTICE FRASER: All right. Any questions arising out of
any of that? No? All right. Thank you very much
Mr Parker. You can leave the witness box.
A Thank you.
MR JUSTICE FRASER: Now, I think Mr de Garr Robinson, on the
basis of Mr Membery, that's your evidence of fact
finished. Is that right?
Now, we have to address the situation in respect of
the remaining tranche of the Horizon trial, and I do
recall that in the order that was produced the day
before yesterday I said that we would do that at
2 o'clock. Is that likely to take very long and/or can
it usefully be done now or would you like to come back?
MR GREEN: My Lord I think we might need to come back
because there are quite a few consequential pathways to
consider how they intermesh.
MR JUSTICE FRASER: All right. Would it be inconvenient to
come back at ten to two?
MR DE GARR ROBINSON: My Lord no.
MR JUSTICE FRASER: The reason for that is, and it is wholly
unconnected with this case, there is a meeting I'm
supposed to be at at the Ministry of Justice this
afternoon. It is a long meeting, it goes on for three
hours, I can say wholly neutrally they are expecting me
to be slightly late, but obviously if I could be less
late than staggeringly late then that would be useful,
so if we come back at ten to two and we will deal with
the second -- and the features, I think, are any
housekeeping, predominantly the dates for the experts
and also there is the two days of closings.
MR DE GARR ROBINSON: My Lord yes.
MR JUSTICE FRASER: Is there anything else on that --
MR DE GARR ROBINSON: My Lord there is one more point to
raise with your Lordship which is that Dr Worden has --
it has occurred to Dr Worden there is a new way of
looking at the Peaks and the OCPs, OCRs and MSCs in this
case which, in his view shed considerable light on
certain of the Horizon issues. He feels it is his duty
to inform your Lordship of that. He has already
informed Mr Coyne of that fact and it is only right that
I should bring it to your Lordship's attention.
MR JUSTICE FRASER: Thank you. I think on the same subject,
then, and given that the expert evidence isn't going to
start until the 20th, I'm also minded, unless each of
you seek to persuade me otherwise, to order another
expert's meeting anyway.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: Simply in terms of the date.
MR GREEN: My Lord, that would be convenient. What we did
was we -- solicitors and counsel and experts liaised to
find the window that everybody can do, and that is in
the -- towards the end of June.
MR JUSTICE FRASER: Well, we are going to deal with all of
that at ten to two. I have said it is starting -- are
you talking about the evidence in general?
MR GREEN: The expert evidence. Two experts.
MR JUSTICE FRASER: I have ordered that that is happening on
20 May. It's starting on 20 May. We will revisit it if
you are going to try to seek to persuade me to move that
date at ten to two but you are going to find it very
difficult. We will address that at ten to two.
(1.09 pm)
(Luncheon adjournment)
(1.50 pm)
HOUSEKEEPING
MR GREEN: My Lord, it may be the source of some confusion
last time might be because we misunderstood
your Lordship's order in the light of what your Lordship
said orally at the recusal application hearing, because
your Lordship --
MR JUSTICE FRASER: Which bit of the order?
MR GREEN: Well, there are two provisions, paragraph 9
and -- setting the dates for the expert evidence, and
paragraph 3. We had understood paragraph 3 to reflect
the fact that your Lordship had graciously accepted that
my commitments in the week prior to that would mean we
wouldn't be able to resume before that, and when we
looked at dates afterwards --
MR JUSTICE FRASER: Well, you told me that you were in the
Court of Appeal the week before that.
MR GREEN: Correct.
MR JUSTICE FRASER: So my original intention in this order
was to order that the expert evidence commenced on 13
May and that couldn't happen for the reasons you
explained on Tuesday.
MR GREEN: Precisely, we had understood that, and then
your Lordship mentioned us coming back to deal with the
relevant dates. We don't need to look at the transcript
but the -- paragraph 9, we understood as reflecting what
your Lordship had said orally to us.
MR JUSTICE FRASER: Well, you, I think -- well, two points,
Mr Green. Firstly, the Post Office Horizon issues team
weren't here at all.
MR GREEN: Precisely.
MR JUSTICE FRASER: And the recusal team had no instructions
in respect of experts' availability, etc.
MR GREEN: Exactly.
MR JUSTICE FRASER: Secondly, you sought to give me
submissions in an understandably fragmented way about
what Mr Coyne's plans were.
MR GREEN: Indeed.
MR JUSTICE FRASER: So I said, which is reflected in the
order, we will start on the 20th, I don't want to
supervise a one-sided tennis match in terms of diary, we
will deal with that when we have finished the evidence
of fact.
MR GREEN: Exactly, and so that's what --
MR JUSTICE FRASER: And you interpreted that as meaning we
are not going to have any experts until June, did you?
MR GREEN: We didn't interpret that as meaning that. We
interpreted that as the parties should go off,
conscientiously consider who is available when and come
back to the court with an informed answer which was what
I was trying to return to the court with.
MR JUSTICE FRASER: Well, bearing in mind the overriding
point which I also made on Tuesday, which is this is
a part heard trial --
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: The Court of Appeal takes priority,
Supreme Court takes priority. Other than that it's part
heard, we are getting on with it.
MR GREEN: But it's difficult to do without the experts
present, so we have got --
MR JUSTICE FRASER: What do you mean, without the experts
present now or at any point after Tuesday?
MR GREEN: No, no. What we sought to do, my Lord, is find
dates the experts can attend, are able to attend,
because, for example, you know, by way of example,
Mr Coyne's in a three-week hearing at the moment on
a three-week trial.
MR JUSTICE FRASER: Well, Mr Coyne would have been giving
evidence in this trial at the moment. If the recusal
application --
MR GREEN: Going forward from the 1st --
MR JUSTICE FRASER: Can we just start from some basic
principles, all right? If the recusal application had
not been issued, Mr Coyne's evidence would have been
last week.
MR GREEN: Exactly.
MR JUSTICE FRASER: And this week Dr Worden would have been
giving evidence and I assume Mr Coyne would have been in
court to listen to his cross-examination.
MR GREEN: Exactly.
MR JUSTICE FRASER: So the fact he is in a three-week
trial --
MR GREEN: Sorry, I was looking ahead at the diary for the
period we have identified.
MR JUSTICE FRASER: But we are part heard. This is a part
heard trial.
MR GREEN: My Lord yes. I agree, and not of our making.
MR JUSTICE FRASER: No, no, I know that.
MR GREEN: That's the difficulty, because we have
obviously --
MR JUSTICE FRASER: But this trial is not now going to
embark on a jigsaw puzzle to fit around things that
other people are intending to do in the future. It is
a part heard trial.
MR GREEN: It is, and we have got some immoveable problems.
MR JUSTICE FRASER: Well that is a different issue, but none
of them, I assume, can relate to 20 May.
MR GREEN: Well they do my Lord.
MR JUSTICE FRASER: You didn't mention them to me on
Tuesday.
MR GREEN: What I understood had happened, it may be my --
I'm sure it's my fault, what I understood had happened
was your Lordship had announced a date when it was going
to resume and I noticed immediately that I was in the
Court of Appeal and your Lordship then very fairly
observed, well, actually, rather than have a tennis
match about dates, we will deal with that today.
MR JUSTICE FRASER: With one of the players not here.
MR GREEN: Exactly. So that was -- and so we thought to
help the court we must go off, carefully, find out when
the experts are and are not available, and identify any
Supreme Court or Court of Appeal cases that we have and
also one member of my team has got four weeks of
adoption leave which is not --
MR JUSTICE FRASER: I know, but both -- right, Mr Green, I'm
sorry, there has to be a balance struck between this.
You have a team with more than one counsel and so does
Mr de Garr Robinson. It might be entirely
understandably that on some of the days not all the
counsel can be available for all the days. What we need
is the cross-examining counsel, the main counsel for the
other side and the experts. That's what we need in
order to deal with the expert evidence. If we start
trying to fit together a matrix that includes the
entirety of both full teams plus all the experts'
commitments, we will still be dealing with this at the
end of 2019. That's not going to happen.
MR GREEN: My Lord, we have found a window that is possible
for everyone in June.
MR JUSTICE FRASER: Well --
MR GREEN: At the end of June, as I understand it. There
may be some difficulty with my learned friend possibly
having a holiday commitment at the end, but we have
found a window when everyone can do it, because
Ms Donnelly, for example, is the senior junior on my
team and she has got four weeks of adoption leave in May
which is --
MR JUSTICE FRASER: You don't have to go into those sorts of
details.
MR GREEN: My Lord, we are hesitant to be prejudiced on the
claimant's side by something that is not of our making.
MR JUSTICE FRASER: Well, all right.
MR GREEN: If there's no -- we will let your Lordship look
at the dates --
MR JUSTICE FRASER: I'm not going to look at the dates in
this form I'm going to come on to the dates in a moment
but that's our outline situation, is you are saying
revisit paragraph 3 and the debate that was had in front
of me by Mr Cavender and you, don't have the experts on
20 May, put it off a month and approach it that way.
That's the nub of it.
MR GREEN: Under paragraph 9 that's the --
MR JUSTICE FRASER: I'm not saying that because it's in
paragraph 3 rather than paragraph 9 I'm not going to do
it, I'm just identifying what it is you are telling me.
MR GREEN: My Lord, yes, because of difficulties with expert
availability, counsel's availability.
MR JUSTICE FRASER: In other words, treat it as if it is not
a part trial is what it comes down to.
MR GREEN: No my Lord because we are excluding things that
are not in the Supreme Court or the Court of Appeal, so
with respect, I'm trying to comply with what
your Lordship has said, and so we are just looking only
at experts' availability and trials to which we are
committed in the Court of Appeal or above, so that is
the only -- I'm not trying to treat it as if it is not
a part heard trial at all.
MR JUSTICE FRASER: All I think that that can be interpreted
as is as follows; approaching it as though it is expert
availability not taking account that it's part heard.
Because the fact an expert is doing X, Y or Z, if he is
in a part heard trial he should be dealing with his
evidence in the part heard trial, should he not, as
a higher priority? Neither of them can be in the Court
of Appeal or the Supreme Court because those courts
adopt hear evidence.
MR GREEN: No. I mean, Mr Coyne is on his son's 21st
birthday holiday abroad between 22 May and 29 May.
MR JUSTICE FRASER: Right. Well, okay. Those are your
outlines. I'm going to hear from Mr de Garr Robinson.
MR GREEN: I've got various Supreme Court issues later.
MR JUSTICE FRASER: Right. Mr de Garr Robinson? Admittedly
you weren't here on Tuesday but I imagine --
MR DE GARR ROBINSON: I've read the transcript and in
fairness to my learned friend I did read the transcript
as containing an indication by your Lordship that the
commencement date would be -- you indicated 20 May, but
my understanding from the transcript was there would
then be a full debate about that today, but that is
a welcome piece of agreement between my learned friend
and myself.
My Lord, my concern -- I do not protest that my
expert is unavailable on 20 May. One of my juniors is
briefed on something else, but I don't complain about
that either, it's not the Court of Appeal or the Supreme
Court. My Lord, one issue I do pray in aid, however, is
that if Mr Coyne is cross-examined on 20 May there will
then be something like ten days' gap between the
completion of his evidence, in fact more than ten days,
and the commencement of Dr Worden's cross-examination.
My Lord, that gives my learned friend a material
advantage because -- particularly in a complicated case
of this sort, it will be a real advantage to have ten or
twelve days to meticulously plan a cross-examination
based on answers given in cross-examination the week
before. My Lord, I'm anxious about that, and I would
invite your Lordship not to split up the experts in that
way, but as a matter of simple fairness, to have the two
experts giving evidence back-to-back, and I would
therefore suggest, respectfully, and of course it is
a matter entirely for your Lordship, I do entirely
acknowledge that we are part heard in a trial, but I
would respectfully suggest that the cross-examination
should start at the beginning of the following term.
MR JUSTICE FRASER: Well, what Mr Green has told me means
that Mr Coyne's examination -- cross-examination --
couldn't be done in the week of the 20th because it
sounds from what he told me as if there is only two days
that week available before Mr Coyne is going off to do
whatever it is he is doing, and you are entitled to four
days.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: So he would not have access to his
expert at all.
MR DE GARR ROBINSON: That's when I'm supposed to be
cross-examining him. I'm not making my learned friend's
submissions. If your Lordship directs that the hearing
resume on 20 May I apprehend that Mr Coyne will attend
for cross-examination. I might be wrong about that, but
my simple submission to your Lordship is, as a matter of
simple fairness to both parties, your Lordship should
arrive at a period where the experts are giving evidence
back-to-back.
MR JUSTICE FRASER: And that period, so far as you are
concerned --
MR DE GARR ROBINSON: My Lord, I would suggest that it
starts -- Mr Coyne's cross-examination starts on
Tuesday, 4 June. That would involve your Lordship
sitting for four days, that would involve your Lordship
sitting on the Friday of that week.
MR JUSTICE FRASER: Well, that's not an issue.
MR DE GARR ROBINSON: And then Dr Worden giving evidence on
the --
MR JUSTICE FRASER: So that is a four-day week because it is
vacation on the Monday.
MR DE GARR ROBINSON: Because term starts on the Tuesday.
My Lord, Dr Worden giving evidence on 10 June for,
I think, three days, I apprehend.
MR JUSTICE FRASER: Well, it was three with a possibility of
four because I proffered parity on number of days and
Mr Green hadn't decided.
MR DE GARR ROBINSON: And then, my Lord, I would
respectfully suggest that it makes sense from bitter
experience, it makes sense to have a week off to allow
the closing submissions to be properly formulated, and
then have oral submissions the week following, the
week -- that would be the week beginning 24 June.
MR JUSTICE FRASER: Just remind me -- that was going to be
a day each?
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: So that is your projected suggested
timetable.
MR DE GARR ROBINSON: My Lord yes. It may accommodate
Mr Coyne's problems as well, but as I say that is
a matter for my learned friend, not for me.
MR JUSTICE FRASER: All right. Just give me a second.
Yes. All right. Mr Green?
MR GREEN: My Lord, the only difficulty with that, there are
two points, Mr Coyne's in a trial on 11 June for three
days which will try and have to get adjourned or --
MR JUSTICE FRASER: Well, in terms of --
MR GREEN: -- because it is a part heard trial.
MR JUSTICE FRASER: In a way I don't want to sound grand
about this, but those sorts of problems are issues in
that other trial. They can't be issues for us.
MR GREEN: I understand my Lord.
MR JUSTICE FRASER: Or for me. It's not because I'm trying
to throw my toys out of the pram and assume some
superior position, but -- is that a High Court trial?
MR GREEN: I don't know. It is in Newcastle so --
MR JUSTICE FRASER: Well, so it can't -- well, district
registry maximum. Okay.
MR GREEN: My Lord, I'm in the Supreme Court in the middle
week that my learned friend wants us to be preparing our
submissions.
MR JUSTICE FRASER: Well, I have got something to say about
submissions anyway in a minute but you're int he Supreme
Court the week of the 17th?
MR GREEN: Exactly, and so if we were able to have a time
when I could devote time to the case that would be
fairer.
MR JUSTICE FRASER: How many days are you in the Supreme
Court?
MR GREEN: I am in the Supreme Court on the Wednesday and
Thursday.
MR JUSTICE FRASER: Wednesday the 19th and Thursday the
20th?
MR GREEN: Correct. I have got one day after that.
A Friday.
MR JUSTICE FRASER: Yes. I understand. All right. But
other than Mr Coyne's appointment in Newcastle, so far
as the evidence is concerned, Mr de Garr Robinson's
suggestion will work?
MR GREEN: My Lord yes.
MR JUSTICE FRASER: Well, let's put closing submissions to
one side. The important thing -- well, there is a range
of important things, but in order; the first most
important thing is to complete the evidence.
MR GREEN: Indeed.
MR JUSTICE FRASER: Are you going to require or want four
days or are you still three possibly four?
MR GREEN: Well my Lord, given that on this plan we are
going to sit on the Friday --
MR JUSTICE FRASER: Yes?
MR GREEN: -- if we were able to sit on the Tuesday,
Wednesday, Thursday I would complete it in three.
MR JUSTICE FRASER: Right.
MR GREEN: Just because that extra time may allow us to
narrow what we have to challenge.
MR JUSTICE FRASER: That is understood. Right. Well, I'm
going to deal with evidence first and then I'm going to
come on to closing submissions.
Paragraph -- can someone remind me of today's date?
Is it the 11th? Okay. So unlike the order of the other
day I would like some one of the counsel to draw this up
and agree the wording. Paragraph 3 of my order of 9
April is varied so that the expert evidence is to
commence on 4 June 2019 with Mr Coyne's evidence to be
between 4 and 7 June inclusive and Dr Worden to be
called on 11 June and his evidence to be between 11 and
13 June inclusive. Does that deal with the actual
dates?
So that's expert evidence.
Then the next issue is really closing submissions.
Now, Mr de Garr Robinson, you suggested a week which is
sensible. You have heard what Mr Green is doing that
week. It seems to me closing submissions could be
a little bit later than that. I don't know if you have
anything that you want to say about that.
MR GREEN: My Lord, I would have no objections to having
more time for written closings. The closings might be
shorter as a result.
MR JUSTICE FRASER: Yes. Well, that would be beneficial.
So then if we move your suggestion a week and we could
have closings on 1 and 2 July. One day each.
Mr Green, is that -- so that's moved it a week to
reflect your Supreme Court activity.
MR GREEN: I'm grateful my Lord. Very grateful for that.
MR JUSTICE FRASER: Right. So are those dates all now quite
clear? Good. Right. So that's evidence.
MR GREEN: Would your Lordship want the closing submissions
in on the Thursday before? Or the Friday.
MR JUSTICE FRASER: No, I think the Thursday. Thank you
very much for mentioning that. In fact, let's say in
view of how long you will have had them, let's say noon
on the Thursday. Noon on Thursday the 22nd.
MR GREEN: My Lord, would it be possible to have the
following week because we are coming back on the 1st
and --
MR JUSTICE FRASER: Oh I'm sorry, did I say 22nd? I meant
27th. All right?
So that deals with evidence, that deals with
closings.
MR DE GARR ROBINSON: My Lord yes.
MR JUSTICE FRASER: Mr de Garr Robinson?
MR DE GARR ROBINSON: My Lord, I need to address
your Lordship on -- it is a matter of some awkwardness
actually. Dr Worden has recently realised that there is
a new way of looking at the evidence in this case which,
in his view, could greatly assist your Lordship, assist
the court, in deciding Horizon issues 1, 12 and 13.
This approach involves focusing on those Peaks OCRs,
OCPs and MSCs which actually mention the FAD codes of
one or more of the claimant branches.
Just to explain, when Fujitsu did any authorised
remote handling of data, to put it neutrally, which
might affect branch accounts, they raised an OCP, OCR or
MSC whose text was likely to include the six digit FAD
code of the relevant branch. So it's therefore possible
to search all the OCPs, OCRs and MFCs with a view to
finding all of those which mention the claimant branches
during the relevant claimant's period of tenure. This
search yields a limited number of OCPs, OCRs and MSCs,
and it's therefore possible to assess expert issues 12
and 13, which is how often was remote access facility
exercised and what effect did it have. It is possible
to assess those questions as they affect the claimants
by examining that much smaller document set. My Lord,
that is the first exercise that he would like to
undertake, and indeed he has embarked work on -- I think
this week he has embarked work on that.
Second, if a detected bug affected the accounts of
any branch the Peak relating to that bug was likely to
mention that branch's FAD code. Typically, it will
also -- it may also mention a sum of money. It's
therefore possible to search all the Peaks in the same
way that I have just outlined, looking for Peaks which
mention any claimant's FAD code during the relevant
claimant's period of tenure, and again, this document
could shed some light on Horizon Issue 1 to which extend
is it likely that bugs have affected the relevant
branches.
Now, Dr Worden has specifically asked me to offer
his apologies to the parties and to the court that he
didn't think of this before. In fact, frankly, he is
kicking himself that he didn't do so. He believes that
he and Mr Coyne would only need a short time to consider
the relevant documents and to consider how it affects
their views on those issues. He wishes to discuss the
documents with Mr Coyne with a view to agreeing what
they do or do not show.
My Lord, in the days since the recusal application
was issued he started to consider how the new approach
affects his views. He believes on Issue 1 it allows the
parties to make a much simpler analysis of the point,
and he takes a similar view in relation to the remote
access issues. It makes, in his view, it possible for
the experts to form a view as to how often remote access
was exercised and what its likely effect was.
It is Dr Worden's view that it is his duty under CPR
Part 35 to inform the court of this change of view and
to allow the court to consider whether or not it wishes
to see it considered. That belief is based, as
your Lordship will be aware, on CPR35.3 which imposes
a duty on experts to help the court on the matters
within their expertise, whether or not they are
instructed so to do. My Lord, it's also based on
CPR35 -- I should say the practice direction CPR35,
paragraph 2.5, which requires experts to inform the
court of any change of views.
I should emphasise this -- none of this comes at the
request or instigation of my client. This has come from
Dr Worden. This is his idea. My Lord, he wishes to
discuss it with Mr Coyne in a further meeting between
the experts, but of course it's -- it's only right that
your Lordship should be aware of that. I'm not making
any application for permission to put in supplemental
expert reports --
MR JUSTICE FRASER: I don't think you have any supplemental
experts' reports to apply for permission for, are you?
MR DE GARR ROBINSON: I'm not making any kind of
application, I'm simply sharing with your Lordship the
view that has been expressed to me by Dr Worden.
MR JUSTICE FRASER: But in order to -- I'm grateful for that
and that's noted, but in order to make an application to
put in supplementary expert evidence from Dr Worden you
would need to have a supplementary expert report from
Dr Worden, wouldn't you. You can't apply for permission
in the abstract.
MR DE GARR ROBINSON: Well my Lord I'm conscious of
your Lordship's own judgment in the Imperial Chemical
Industries case against Merrill Technology and
your Lordship will have a much clearer recollection than
I do of the criticisms you levelled at one of the
experts for going off and doing an exercise on the basis
of documents that he had, and for not engaging in
a collaborative process with the other expert with
a view to them jointly coming to a view as to whether it
was beneficial and what it did or did not show. I have
brought a copy of that case here, but I apprehend
your Lordship doesn't need to be reminded of it.
My Lord, in those circumstances your Lordship may
think it appropriate for that procedure, the procedure
that your Lordship described in paragraph 158 of that
judgment to be followed in this case, but as I say I'm
not making any application to your Lordship.
MR JUSTICE FRASER: No, no. I understand entirely the
difference between a collaborative exercise explored by
experts either jointly or singly, and a supplementary
expert's report but I go back to the point that I have
just mentioned. In order to apply for permission to
adduce extra expert evidence you would have to have
a draft of the report for which you would be seeking
permission, wouldn't you?
MR DE GARR ROBINSON: My Lord not necessarily.
MR JUSTICE FRASER: You don't think so?
MR DE GARR ROBINSON: My Lord, I would submit not. It would
depend on the circumstances. Often one would have such
a report. I'm conscious that in the ICI case
your Lordship cited as a reason for not giving the
relevant party permission to put in a report which they
had prepared, that the experts hadn't gone through that
collaborative process and I'm quite anxious to ensure
that my expert doesn't fall into the same trap, if I can
put it that way.
MR JUSTICE FRASER: Well, depending on whichever point one
reaches in terms of you actually make an application to
put in a supplementary expert's report, that application
will be dealt with as and when it's made, so I'm not
dealing with that either positively or negatively at the
moment.
MR DE GARR ROBINSON: Thank you.
MR JUSTICE FRASER: What I am going to do, which I think I
explained to you just before the short adjournment, I am
going to make an order for the experts to meet again. I
am not in any way going to proscribe or insist on the
content or agenda of that meeting. It's just an order
for a further meeting. What they explore, wish to
explore, how it's done, etc, is solely a matter for
them, but I'm going to make a direction in respect of
a further meeting.
Before I do that though, Mr de Garr Robinson, is
there anything you want to add on this particular point?
MR DE GARR ROBINSON: My Lord, I don't have an application.
I simply feel it is my duty to inform your Lordship
of --
MR JUSTICE FRASER: I understand. I will just seek
observations from Mr Green.
MR GREEN: My Lord --
MR JUSTICE FRASER: If any.
MR GREEN: It's probably of the, "In any", variety. The
only observation is we are slightly concerned that this
is a -- what is proposed is a slightly different
iteration of what Dr Worden was already doing. We were
concerned he appeared to be doing in his existing
reports, which is rather than giving evidence about the
Horizon issues as formulated at CE1/1, which was
generally and not by reference to all the individual
claimants, how were these questions to be answered,
instead, to invite your Lordship basically to enter into
the sort of {C1/1/1} exercise to which such great
exception was taken, we say albeit on a flawed premise,
on the recusal application, namely to start going
through individual SubPostmasters and invite
your Lordship because FAD codes have not been included
in Peaks, to conclude, without any disclosure from the
claimant's cohort, other than the few people we have
got, that they haven't actually happened and bounce us,
and it's difficult to resist the temptation to think
that if the factual premise upon which Dr Worden's
report is based starts to fall away in factual evidence
and you suddenly get, "I have come up with a completely
new idea".
MR JUSTICE FRASER: Well, that is a different point.
MR GREEN: It is a different point but it's not one which we
welcome.
MR JUSTICE FRASER: Well, all I intend to do so far as the
experts -- and I will just tell you what the proposed
direction is in terms so you can seek to -- well, make
any observation before I actually make the order, I
intend to order that at least one further meeting be
held between the experts to seek further agreement on
the Horizon issues by 4 o'clock on 3 May, so that gives
them quite a long time to do it. That's not saying they
can only have one meeting, they might decide -- I
suppose it ought to say, and if such agreement can be
reached the production of a fifth agreed joint
statement. Do either of you have any observations on
that order? No? It seems perfectly non-controversial.
The only thing is it imposes a date but it's not a date
on the imminent horizon.
Right. So that's the experts. Anything else in
terms of directions?
MR GREEN: My Lord is there any cut-off date by which any
application for a supplemental statement should be made?
MR JUSTICE FRASER: No.
MR GREEN: No, so we will leave it open and deal with it if
it comes?
MR JUSTICE FRASER: I'm not generally persuaded cut-off
dates are a good idea. Any application will be -- any
application will be made by either side for any further
material and will be dealt with if or when they are
issued in accordance with all the principles that are
set down in the CPR.
Right. So as far as directions for resumption then,
is that everything?
MR DE GARR ROBINSON: My Lord I believe so.
MR JUSTICE FRASER: Right. There is some minor assorted
miscellany of housekeeping. Mr de Garr Robinson, you
were part of the way through a redactions review.
MR DE GARR ROBINSON: My Lord I was, and this is a matter of
great embarrassment to myself. Coming back here today
I have done -- I have gone through all of the documents
except one, and there is still one outstanding and if
I had known we were coming back today then that document
would have been gone through already and I can't
apologise enough.
MR JUSTICE FRASER: And the results of the ones that you
have gone through absent that one?
MR DE GARR ROBINSON: My Lord, your Lordship will recall --
MR JUSTICE FRASER: I think you had done three.
MR DE GARR ROBINSON: One has already been released.
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: Two documents involving claims to
legal privilege, my Lord, in my judgment they are
legally privileged.
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: My Lord, there is then a series of
documents which have been redacted for confidence and
irrelevance. My Lord, in relation to those, the
approach I'm adopting will involve the unredaction, as
it were, of a number of extra passages, and in order to
make things easier for everyone to see that there isn't
any great concealment going on, what I'm currently
minded to do is to unredact most of the headings, so one
can see what is being dealt with in the parts that are
still redacted.
MR JUSTICE FRASER: Right.
MR DE GARR ROBINSON: So whether that's strictly in
accordance with the rules, I don't know, but that seems
to me to be a helpful way of shedding light on what
might otherwise be a matter for suspicion.
MR JUSTICE FRASER: All right. I tell you what I'm going to
do about this. I'm going to order, and it will go in
today's order, please, that the results of the review of
redactions exercise undertaken by leading counsel for
the Post Office in the Horizon issues trial to be
identified in a letter from WBD to Freeth by ... and
then you are going to suggest a date.
MR DE GARR ROBINSON: My Lord, seven days is ample time.
MR JUSTICE FRASER: So by noon on the 18th. That's seven
days.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: And then together with --
MR DE GARR ROBINSON: The relevant documents, insofar as --
MR JUSTICE FRASER: -- open brackets, if any, close
brackets, and then if there is any further actions or
anything that is necessary to be taken they will flow
after that.
MR DE GARR ROBINSON: My Lord yes.
MR JUSTICE FRASER: So today's order is going to have
a provision in, and it's to be a letter. All right?
MR DE GARR ROBINSON: Thank you my Lord.
MR JUSTICE FRASER: So that's an outstanding housekeeping
matter which I had on my list. Have you got any on your
list?
MR DE GARR ROBINSON: My Lord no.
MR GREEN: My Lord, there are a couple of dates which are at
large, or potentially to be fixed. Your Lordship may or
may not want to deal with them today. One is the costs
of the common issues judgment which we had suggested 8
May which was a date upon which we were going to be
coming back for this trial, and your Lordship did have
a window for it then.
MR JUSTICE FRASER: Yes. Well, because I was supposed to be
hearing closing submissions.
MR GREEN: Precisely, so we're going to suggest common
issues costs and the adjourned costs of the recusal
application, namely as to basis and payment, whether it
be summarily assessed or put off to assessment with
a payment on account. Those two costs issues --
MR JUSTICE FRASER: They need to be fixed. You want them on
the 8th?
MR GREEN: On the 8th.
MR JUSTICE FRASER: I'm minded to do it some time the week
of the 20th, to be honest.
MR GREEN: 20th of?
MR JUSTICE FRASER: May, like the 23rd. That will be time
estimate half a day, I imagine.
MR GREEN: Half a day.
MR JUSTICE FRASER: Half a day. Yes.
MR GREEN: My Lord, we can make ourselves available for
that.
MR JUSTICE FRASER: Mr de Garr Robinson? I imagine it won't
be you, it will be the other team.
MR DE GARR ROBINSON: My Lord, it won't be me and so I'm
speaking on instructions. My Lord, my primary
submission is your Lordship -- I would invite
your Lordship not to make any listing of any matters of
that sort until the appeal that will today be being
issued in relation to recusal is dealt with.
MR JUSTICE FRASER: Well, there is an application for --
permission will be known about before then, won't it.
MR DE GARR ROBINSON: I apprehended your Lordship would say
that, hence the directions you have made in relation to
the Horizon trial, and there I would simply submit that
it makes a great deal of sense to fix a time by which
point the Court of Appeal --
MR JUSTICE FRASER: Well, that's why I chose the week of the
20th. I tell you what I'm going to do. I'm going to put
liberty to apply in today's order, so that if and when
there is any developments on the front you have just
identified you can always come back.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: The common issues costs won't be
affected by the recusal application, prospects in the
Court of Appeal, because that involves submissions that
I think were lodged in writing on 29 March by both sides
and the position of the Post Office was it was premature
to make any order for costs because one wouldn't know
who had won and that the Post Office had been partially
successful in any event, both of which were identified
by me in my recusal judgment as being correct, so that
position won't change, whether I'm recused or not, and
I will still have to deal with common issues costs
because they wouldn't be dealt with by a new managing
judge, they would have to be dealt with by me, but with
liberty to apply if and when the recusal application
were to have any life breathed into it by a grant of
permission to appeal, well then that date can be readily
refixed without anyone having to come back.
MR DE GARR ROBINSON: My Lord I hear what your Lordship
says. Your Lordship will understand that's not my
submission, but --
MR JUSTICE FRASER: No, no, I understand. All right. So
today's order will be that the hearing of the
application by the claimants for their costs on the
common issues, together with associated matters -- well,
actually forget, "Associated matters" -- application by
the claimants for their costs on the common issues trial
and the further order necessary on the costs recusal
application under paragraph 8 of the order of 9 April
will be dealt with on 23 May 2019, time estimate half
a day, but at the bottom of the order, please, it will
say, "Liberty to apply".
MR GREEN: My Lord then --
MR JUSTICE FRASER: Is that everything?
MR GREEN: No it isn't everything. I'm sorry.
MR JUSTICE FRASER: Is that everything on the costs?
MR GREEN: Everything on the costs, yes it is.
MR JUSTICE FRASER: Next point?
MR GREEN: And my Lord then the -- we have been obviously
slightly thrown by the intervention and what's happened,
and --
MR JUSTICE FRASER: The intervention?
MR GREEN: The recusal application.
MR JUSTICE FRASER: Oh well ...
MR GREEN: It's because we are one team responding to the
different streams coming at us, but there are directions
for round 3 --
MR JUSTICE FRASER: Yes there are.
MR GREEN: -- which start at any moment.
MR JUSTICE FRASER: Yes they do.
MR GREEN: And we are going --
MR JUSTICE FRASER: And which was set on the understanding
that this trial would be over.
MR GREEN: Precisely, and we would invite your Lordship to
vary the dates for those.
MR JUSTICE FRASER: Right. Do you want to call them up on
the common screen?
MR GREEN: Yes. It's in the -- I can tell your Lordship
what they are. {C7/39/1}. It's in the seventh CMC
order, and in terms of sort of sequential progress we
have got the -- at paragraph 4.1 {C7/39/2} we have got
the IPOCs being pleaded on 15 May and we have thereafter
got the individual defences, 17 June, 8 July.
MR JUSTICE FRASER: And you are asking for extensions to all
those dates?
MR GREEN: My Lord yes and there is a sort of slight wrinkle
in that where the round 3 issues relate to breach and/or
the deliberate concealment --
MR JUSTICE FRASER: By, "Round 3", you mean further issues I
think. We're called them, "Further issues".
MR GREEN: Sorry, further issues, relate to breach, that's
dependent on the findings your Lordship has made in the
common issues judgment, which the defendant has said
it's going to appeal.
MR JUSTICE FRASER: Yes.
MR GREEN: And there is an asymmetry of impact of costs
which are expended for the claimants. We have
a category of impact that the defendant doesn't have
which, although we don't think that appeal will be
successful, we have to be prudent in trying to manage
the --
MR JUSTICE FRASER: Understood. So what is it you are
asking?
MR GREEN: So my Lord, we would invite your Lordship to stay
the directions pending the determination --
MR JUSTICE FRASER: On the further issues trial?
MR GREEN: -- on the further issues trial, pending the
determination of permission on their common issues
appeal.
MR JUSTICE FRASER: Which has been mentioned by Lord
Grabiner but hasn't actually been issued?
MR GREEN: No, and the date for that was meant to be 16 May
and we wondered whether your Lordship might consider
bringing that forward because of the impact only --
MR JUSTICE FRASER: No, I think what I will do is I will --
how many directions are there following on from
paragraph 4 of this order?
MR GREEN: Quite a lot. The ones that are immediately
important to cover the period when permission will be
considered are effectively, I think, contained in
paragraph 4 and there is a provision for budgets on 1
July.
MR JUSTICE FRASER: Right. So what you need, really, is
that the directions in the seventh CMC order relating to
the further issues trial from paragraph 4 onwards to be
stayed --
MR GREEN: To be stayed pending the --
MR JUSTICE FRASER: -- well, to be stayed, comma, that stay
to be lifted upon seven days' notice in writing by
either party.
MR GREEN: Indeed.
MR JUSTICE FRASER: When that stay is lifted, whenever it
might be, then the court will revisit those directions.
MR GREEN: I'm most grateful my Lord.
MR JUSTICE FRASER: Because it depends when the stay --
MR GREEN: Exactly.
MR JUSTICE FRASER: There is no point me going through now
and giving a whole bunch of dates which are overtaken,
and things might happen very quickly they might not, so
I think that's what I will do.
The thing I'm not going to do at the moment, or
indeed at all but I haven't prejudged it, is change the
dates for the further issues trial.
MR GREEN: My Lord we don't --
MR JUSTICE FRASER: At the moment.
MR GREEN: Exactly. Well, we will have to see.
MR JUSTICE FRASER: But that depends what happens. It's
something of a moveable feast. Mr de Garr Robinson?
MR DE GARR ROBINSON: My Lord, the application made by my
learned friend takes me somewhat by surprise. It hasn't
been shared with my instructing solicitors before that.
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: So what I can say is inevitably rather
limited but my Lord I have been glancing over
frantically while my learned friend was speaking.
My Lord, in principle, the Post Office has no objection
to a stay of the sort that has been proposed. I would
only refer your Lordship to the fact that the stay ought
to include paragraph 3.4 of the order that I see on the
screen.
MR JUSTICE FRASER: Is that disclosure?
MR DE GARR ROBINSON: Yes. My Lord, that's all I can tell
your Lordship now.
MR JUSTICE FRASER: It seems to me, whatever form of words
the two of you settle, or the two groups of you settle
on in the next hour or two, the principle is that dates
that are looming upon the immediate horizon or the --
I didn't mean a pun -- dates that are looming
immediately for the further issues trial should not be
seen as having to be complied with at the moment because
they have been overtaken by events, so disclosure on
further issues, IPOCs, any of the other directions that
are supposed to be happening in May and early June
sensibly have to be relieved in some way, either by
moving them later or me just imposing a stay.
I mean, I assume that that principle seems --
MR DE GARR ROBINSON: My Lord, I entirely see the force of
that principle. As I say, my instructions are not to
oppose a direction of that sort.
MR JUSTICE FRASER: All right. So that's what I will do
then, and if it can as well -- I did say in my order say
paragraph 4, Mr de Garr Robinson has pointed out it
needs to include paragraph 3.4 which it obviously does.
If there are any other paragraphs, I think the seventh
CMC order is one of those specials that goes on for some
pages, and if there are any others in there that I have
missed, then doubtless you will sweep them up when you
have a look at it.
Right. So is that all your housekeeping?
MR GREEN: My Lord that's all our housekeeping.
MR JUSTICE FRASER: Mr de Garr Robinson, I don't think you
had anything?
MR DE GARR ROBINSON: I have nothing.
MR JUSTICE FRASER: I don't have any more.
There is a point I have to draw to your attention.
This court is no longer our court, as of now. It will,
I hope, become our court again when we come back in
June, but that can't be guaranteed. Obviously I will do
my best, and thank you all very much and thank you, in
particular, to Opus and I will see you all in June if
not before.
(2.34 pm)
(Hearing adjourned to a date to be fixed)
(10.30 am)
HOUSEKEEPING
MR JUSTICE FRASER: Good morning. Just before we start,
a very minor admin point, the various hearings that have
been taking place since 21 March on the transcript seem
for some reason to adopt a different sort of numbering
and start again at 1A. They should just be numbered Day
10, Day 11, etc, continuing on from the 21st, so I just
thought I would make that point so as to avoid any
confusion.
MR DE GARR ROBINSON: Is your Lordship indicating that the
recusal application should be treated as part of this
trial?
MR JUSTICE FRASER: I think it should, actually. I think it
should. It's just a question of numbering really that's
all. Opus sent me an email about it, I answered it, and
then they seemed to adopt a different sort of numbering
so I just thought I would mention it first thing.
MR DE GARR ROBINSON: Your Lordship will be aware that there
is two-and-a-quarter hours left on the claimant's clock.
The Post Office' intention would be to call two
witnesses, namely Mr Parker and Mr Membery.
Your Lordship will be aware of Mr Membery's illness.
MR JUSTICE FRASER: And I think I said in the recusal
judgment that it wasn't necessarily expected he would be
available immediately.
MR DE GARR ROBINSON: Well, I can tell your Lordship that he
is not well enough to give evidence here today.
My Lord, in those circumstances, and I have to say I
hadn't picked up what your Lordship had said in
your Lordship's judgment, my instructing solicitors have
given notice of their intention to rely on Mr Membery's
witness statement as hearsay evidence.
MR JUSTICE FRASER: Understood.
MR DE GARR ROBINSON: And my learned friend's team have, if
I may say so, very sensibly and kindly indicated that
they are willing to extend time for that to have been
done, for notice to have been given under CPR33.2.
MR JUSTICE FRASER: Well, he was in a particular situation
which requires a degree of sympathy.
MR DE GARR ROBINSON: Yes. So, my Lord, for the purposes of
today, I will just be calling Mr Parker.
MR JUSTICE FRASER: Understood. Thank you very much.
MR DE GARR ROBINSON: And I do call Mr Parker.
MR JUSTICE FRASER: Have a seat, Mr Parker.
STEPHEN PAUL PARKER (Sworn)
Direct Examination by MR DE GARR ROBINSON
MR DE GARR ROBINSON: Thank you. Mr Parker, there should be
a bundle of documents in front of you there.
A Yes?
Q Could I ask you to go to tab 11 of that bundle?
A Yes?
Q Is that your first witness statement?
A The first page is a correction to, but the following
page is, yes.
Q If you turn to the second page is that your name and
address at the top?
A It is.
Q If you go to the last page, is that your signature?
A It is.
Q So is that your first witness statement?
A Yes.
Q If you could look at the correction page at the front of
that tab, is that a -- there is one correction here, I
believe. Is that a correction you wish to make to your
witness statement?
A It is, yes.
Q And there is a correction to a document reference. Was
that a typo?
A It was indeed, yes.
Q If I could then ask you to go to tab 12 of the same
bundle, I apprehend there is going to be a corrections
document, and then over the page there will be another
witness statement?
A That's correct. Yes.
Q There is your name and address and at the back of that
witness statement, is that your signature again?
A It is.
Q There is a corrections page. Do you see that?
A I do.
Q Two corrections there. Are those two corrections you
wish to make?
A They are.
Q And for the reference it's -- for the Magnum reference
of the corrections, it's {E2/17/1}.
The first correction, there is a change to paragraph
29, a reference to a phrase, "In Legacy Horizon". If we
could go to page 10 of your witness statement,
{E2/12/10} you will see what the change is from. Do you
see that?
A I do.
Q It is a change from, "While Mr Roll was employed by
Fujitsu". Do you see that?
A That's correct. Yes.
Q Now, why is that change needed?
A That change was actually needed because I applied the
wrong name to the wrong timescale to the document.
MR JUSTICE FRASER: Just before you move on, so the
correction on 29 is that -- does that paragraph end
after, "Legacy Horizon", full stop?
A Yes it does.
MR JUSTICE FRASER: It does, so I need to delete the --
MR DE GARR ROBINSON: "While Mr Roll was employed by
Fujitsu". My Lord, yes.
MR JUSTICE FRASER: Thank you.
MR DE GARR ROBINSON: At the bottom of the same page you
will see there is a footnote, a list of Peaks. If you
go back to the corrections page you will see that there
is {E2/17/1}, to one of the Peaks in the footnote.
Could you explain why that change is needed?
A When it was transcribed one of the Peak references was
doubled up and one was missed as a result of that.
Q Thank you. Then if we could go forward to tab 13,
again, is there a corrections page?
A Yes there is.
Q If you go past that page you will see, is this your
third witness statement?
A Yes it is.
Q And is it your signature at the end of that witness
statement? {E2/13/1}?
A Yes it is.
Q And then if you could look at the corrections page
{E2/13/16} there are two corrections indicated on the
page. Are these the corrections you wish to make?
{E2/171}.
A They are.
Q The first one is to paragraph 18. The original text
reads, "The wording of PC0146096 implies", and that is
changed to, "The wording of PC0146066 of which PC0146094
was a clone implies".
A Yes.
Q Could you explain what the purpose of that change is?
A The original reference in there referenced the clone
Peak which is not the useful one. It's the Peak it was
being cloned from, which contains the -- needed the
information we actually need.
Q And then paragraph 19, if we could -- you will see
that -- paragraph 19 of the corrections document -- it
sets out -- I think the first sentence of paragraph 19,
and then it suggests two changes to that sentence. You
will see there is text added and there is text deleted.
First of all, perhaps you could explain what the purpose
of the deletion is.
A Again, it's a timescale thing.
Q Is it the same -- is it reflecting the correction that
you made to your previous witness statement?
A Yes it is.
Q And then the additional text, could you explain what the
additional text is therefore?
A The additional text -- yes -- because it makes it
clearer, that the information presented there was
a result of the searches which wasn't actually made
clear in the first wording.
Q Thank you, Mr Parker.
Subject to those corrections, and to some
corrections made in your later statements to your
earlier statements, do you confirm that these statements
are true to the best of your knowledge, recollection and
belief?
A I do, yes.
MR DE GARR ROBINSON: Thank you. If you could wait there?
MR JUSTICE FRASER: Mr de Garr Robinson, I don't have
a sheet and you don't have to give me one now, but
I don't have the corrections to the third witness
statement.
MR DE GARR ROBINSON: My Lord, yes, I do have a copy. I can
hand that up now.
MR JUSTICE FRASER: And can I just check, I will check
directly with Mr Parker -- the last correction to
paragraph 19 which is still on the screen which is to
your paragraph 19 of your third statement --
A Yes?
MR JUSTICE FRASER: Can you go to the actual paragraph of
your statement? I understand the strike-through because
that is shown on the correction. Have you got paragraph
19?
A I have now, yes.
MR JUSTICE FRASER: Yes? If you go over the page, "While
Richard Roll was employed by Post Office", is struck
through. Is that last sentence, should that still be
there {E2/11/4} or is that -- you don't deal with that
in your correction.
A The sentence saying, "Of the six circumstances listed"?
MR JUSTICE FRASER: Yes.
A That should still be there.
MR JUSTICE FRASER: That should remain. I thought it
should. I just wanted to check.
MR DE GARR ROBINSON: I notice that Mr Parker doesn't have
a screen. I have only just noticed.
MR GREEN: We have only just noticed as well.
MR JUSTICE FRASER: Yes. Now that you mention it, I have
only just noticed and it's rather important. Just bear
with me just one second. He obviously has to have
a screen.
(Discussion regarding screen)
I will rise for five minutes. It's going to be
exactly five minutes. It's not going to be any longer
than that. All right. Mr Parker, I'm sorry about this,
one of those things that happens, because you started
giving your evidence you are not allowed to talk to
anyone about the case. Obviously your evidence is going
to be over this morning, so that's not going to apply
for any lengthy period of time but we are going to need
five minutes to get you a screen.
(10.40 am)
(A short break)
(10.45 am)
MR JUSTICE FRASER: Right. Do you have a screen?
A I have got a screen.
MR JUSTICE FRASER: Does it have anything on it?
A It does.
MR JUSTICE FRASER: Excellent. Right. Mr Green?
MR GREEN: Mine has gone away a bit.
MR JUSTICE FRASER: It might be safer to move your lectern
towards the screen rather than moving the screen towards
you.
Cross-examination by MR GREEN
MR GREEN: Mr Parker, just to clarify, we have got your
first witness statement which is 16 November 2018, at
{E2/11/1}. Then we have got your second witness
statement of 29 January 2019 {E2/12/1}; yes.
A Yes.
Q Then we have got your third witness statement of 28
February 2019 {E2/13/1}, and both the second and the
third witness statements were making some amendments to
prior witness statements; yes?
A Yes. Indeed.
Q Then we have got the list of corrections at {E2/16/1},
if we go down, I think it's page 4 {E2/16/4} which are
the corrections that were produced prior to the
beginning of the week where you were supposed to give
evidence.
A Yes.
Q And then yesterday we got {E2/17/1} which are the
corrections that you were assisting his Lordship with
a moment ago.
Was one of the reasons why there was a need for
a number of corrections that you have had to rely quite
heavily on some of your colleagues to help you with
information you have been providing to the court? Is
that fair?
A That was only one of the reasons.
Q What were the other reasons?
A Are -- my understanding -- my first statement, my
understanding of some of the information Mr Roll put on
his statement was imperfect because some of it was
a little bit vague and it is a result, sometimes, of
refining our knowledge based on looking further into
things which happened fifteen years ago.
Q And which there was no clear available knowledge on
prior to you looking into?
A Correct.
Q Can I just try to trace through an example of how these
witness statements hang together by reference -- let's
take the thing that his Lordship was asking you about
a moment ago. Let's look at paragraph 19 of your third
witness statement {E2/13/4} please. At the moment I'm
just trying to understand how these hang together.
Paragraph 19 of your third witness statement you
say:
"The vast majority of server injections would not
have been to inject transaction data. In paragraph 29
of my second witness statement I listed the
circumstances in which data was injected into a counter
in Legacy Horizon ..."
Just pause there for a moment. So you are actually
referring back to paragraph 29 in that paragraph, aren't
you?
A I am, yes.
Q So let's go back to paragraph 29, and we have got that
in your second witness statement at page {E2/12/10}.
There you talk about one of your colleagues having done
some searches.
A Yes.
Q Pick search terms that were used in that particular
search.
A Yes.
Q And then --
MR JUSTICE FRASER: Hold on just one second. Which page
should we be on?
MR GREEN: Page 10 my Lord, paragraph 29.
MR JUSTICE FRASER: Yes. Thank you very much.
MR GREEN: You say:
"At my request, my colleague John Simpkins (Senior
Consultant), carried out a search of the incident
management system for incidents which required injecting
data into the counter ...", etc, giving examples of the
search terms that were used on that occasion?
A Yes.
Q Then you say:
"From the results I can determine that this was only
carried out in the following circumstances ..."
And then the words that we have to remember to
forget, as it were, are, " ... while Mr Roll was
employed by Fujitsu".
A That's correct. Yes.
Q Now, if we -- it might be helpful for you to look at the
paper ones, because it is difficult to do it on the
screen, but if we can look at the correction, please, at
{E2/16/4} on the screen, and then -- so what you are
doing to paragraph 29 in the corrections is you are
expanding the period that you are talking about.
A That's right. I am. Yes.
Q From Mr Roll's employment you are going much wider to
say the whole of Legacy Horizon?
A That's correct. Yes.
Q And then if we look at paragraph 19, and we look at
{E2/17/1} please, you are actually -- you appear to be
saying that you are confining what's being said in that
paragraph to what was found as a result of the searches
in that paragraph, not, "These are all the ones that
happened in the whole of Legacy Horizon".
A That's correct. Yes.
Q So one is -- so the paragraph 29 is expanding it to the
whole of Legacy Horizon?
A That's correct, yes.
Q But paragraph 29 is confining this to only the searches
described in paragraph 29.
A Correct. Yes.
Q And what's the real reason for that change?
A Because, again, the timescale that I put on it in the
statement was incorrect. Yes.
Q Okay, well, pausing there, there are two points. Let's
ignore the change in timescale from Richard Roll to the
whole of Legacy Horizon. You explained to the court
this morning, in relation to this change here, where you
say -- you add the words, "Found as a result of the
searches described in that paragraph" --
A Yes?
Q -- you said that was just to make it clearer,
effectively, what you were referring to.
A Correct. Yes.
Q Now, do you know the real reason why that's been changed
to say that?
MR DE GARR ROBINSON: My Lord, is that a fair question?
MR GREEN: Well, I'm just going to ask it and see what
answer --
MR JUSTICE FRASER: Well, let's just hold on one second.
Asking him what the real reason is a fair question, so
you can put it again. Well, so far as he knows.
MR GREEN: Do you know what the real reason for making that
change is?
A This is the change where we strike out, "Whilst Richard
Roll was employed" --
MR GREEN: No. Sorry?
MR JUSTICE FRASER: Both of you, if you speak over each
other it doesn't go on the transcript, all right?
Mr Green?
MR GREEN: No, the change I'm asking about is the addition
of the words, "Found as a result of the searches",
described in that paragraph. Why is that being changed
now?
A Because I felt that made it clearer that the information
presented there was a result of the searches and not --
and the exact search terms used, because it was an
expansion of the previous search terms used. Does
that ...
Q Can you explain that again very carefully?
A So when the -- the first time that we sought to gather
this information, a certain set of search terms were
used when searching the incident management system. My
colleague, who is very, very diligent, decided upon some
additional search terms afterwards, and that's what this
second bit reflects, that he found extra search terms
and some extra incidents relevant to the court and what
we are trying to say there.
Q And, well, as we are on the point, let's just quickly
bring up {H253} please?
MR JUSTICE FRASER: Can I just ask, when you are giving your
evidence generally, if you could try and firstly explain
what you yourself did and then if you need to go on and
explain -- because you have used the word, "We",
a couple of times and it just makes it confusing to know
what's your direct evidence and what's been done by
somebody else.
A Yes, my Lord.
MR JUSTICE FRASER: I'm not saying don't tell us what other
people did but just make it clear which was you
individually and which was other people.
A Okay my Lord. Thank you.
MR JUSTICE FRASER: Mr Green?
MR GREEN: Now, this is {H/253/1}. This is a letter from
Womble's dated 20 March 2019. That is the day before
you are due to give evidence, so we are in the middle of
cross-examining, and this letter is sent while we are in
court. It says:
"We understand from Fujitsu that the SS C has been
carrying out further work to identify any Peaks that
show transactions being injected into the counter in
Legacy Horizon in addition to those referred to in
paragraphs 29 and 30 of Mr Parker's second statement.
On Monday ..."
So this is Wednesday:
"On Monday we learned that an SSC technician has:
Searched for all KELs that mentioned RiposteMessageFile,
Ripostemport and RiposteMessage"; correct?
A Correct, yes.
Q "Collated the responsive KEL references ... re-searched
the Peak system for any Peaks which contained those KEL
references; and identified ..."
Some further Peaks.
A That's correct. Yes.
Q You haven't amended paragraph 29 of your second witness
statement and corrected it to include those Peaks or an
explanation in paragraph 29 of that search having been
undertaken, have you?
A Can I refer to that? So in my second statement ...
Q Yes. Look at {E2/12/10}.
A I can do that on paper, but yes, okay. So paragraph 29
of that one?
Q Yes.
A Yes?
MR JUSTICE FRASER: Are you looking at the paper copy?
A I'm looking at the paper copy.
MR JUSTICE FRASER: Can we retain on the common screen the
document at {H/253/1} please? Right.
Mr Green?
MR GREEN: There are a number of points which arise in
relation to that letter. The first is that different
search terms have been used.
A That's correct. Yes.
Q For example.
In this search the RiposteImport command has been
searched for, which is the directly applicable one for
injecting data; yes?
A RiposteImport is one of the ways of injecting data, yes.
Q And if we look at your paragraph 29, that was not one of
the search terms that was used when that search was
undertaken.
A That's correct. Yes.
Q So the real reason that the amendment that was made to
paragraph 19 to somehow cater for the fact, without
actually saying it out loud that additional searches had
been done, and additional results had been done that you
hadn't dealt with in your statement?
A These are additional to the searches from my original
statement, yes.
Q We all know that. We know that they are not in there
and we know that they are additional because they were
provided the night before you were due to be
cross-examined, or the day before you were due to be
cross-examined?
A Yes.
Q The question I'm asking you is the fact that those
searches had been done, that's the real reason for the
change in your third statement, isn't it? I think you
have effectively accepted that already.
A I must admit I'm not clear on your point, but --
Q Well, let's have a look one last time.
A -- I accept that we have added in extra search items to
give us more information.
MR JUSTICE FRASER: I wonder if we could do two things.
Mr Green, when you are saying, "The real reason",
I think you need to specify or particularise what, in
fact, the witness either did or didn't do or what the
witness either understands or doesn't is the real
reason, because that phrase is open to --
MR GREEN: I understand my Lord.
MR JUSTICE FRASER: -- a little bit of misinterpretation,
potentially.
MR GREEN: My Lord.
MR JUSTICE FRASER: And, Mr Parker, in that last answer you
used the first person plural again and said, "We".
A Yes.
MR JUSTICE FRASER: I wonder if you could just remember what
I said earlier on.
A Apologies. Yes, my Lord.
MR JUSTICE FRASER: You don't need to apologise, it is
understandable if you work in a corporate environment,
you are used to doing that.
A Yes. Indeed.
MR JUSTICE FRASER: But it's your evidence and you are the
person being cross-examined, so ...
Right. Mr Green?
MR GREEN: Was it your idea to make the corrections in the
statement? Your third witness statement.
A I notified the legal team that Mr Simpkins had done some
more work and as a result of that we changed -- we --
this letter was actually generated.
Q And you didn't think it was important to correct
paragraph 29 of your second witness statement accurately
to reflect the situation as it would have been on the
day you were due to give evidence, or indeed today?
A That wasn't a choice I made personally. I was advised
that we generated this letter.
Q Can I ask on a different point, just so we understand
what the effect of the combination of these statements
is?
If we look, please, at {E2/11/3}?
Now, you will see there paragraph 11. This is your
first witness statement and this is where you were --
your witness statement was commenting on Mr Roll's
statement; yes?
A That's correct. Yes.
Q And Mr Roll had given evidence about what Fujitsu was
able to do if terms of its powers; yes?
A Yes.
Q And what could be done?
A Yes.
Q And you have subsequently accepted, I think, that you
needed to modify your first witness statement in respect
of that?
A Yes.
Q So let's look at paragraph 11, because we don't have one
consolidated witness statement explaining what your
evidence is now. We have to infer it from five
different documents, don't we.
A Yes. We do, yes.
Q Okay, so let's look at paragraph 11 and look at the end
of paragraph 11. You say there:
"As I explain below, those suggestions are incorrect
and Mr Roll's account of Fujitsu's actions and powers is
inaccurate and misleading".
A Yes.
Q Now, when you took the oath and then said you believed
your witness statements to be true --
A Yes?
Q -- what were you saying to the court about that
sentence? Could you just explain it please?
A In that paragraph I am trying to make the point that the
suggestion that we frequently changed branch transaction
data without informing the branches that such actions
were being actually taken is not correct. "Frequently",
is a subjective term but I would not have described the
rate at which we were changing branch transaction data
as, "Frequently".
Q Well, pausing there, your position in your first witness
statement was, at least in one material respect that you
have now changed your position on, that Fujitsu couldn't
do it at all, and you have accepted that in the light of
Mr Roll's, as you say, clarification, you would now
accept that Fujitsu did have powers which, in your first
statement, you didn't accept that it did have. That's
fair, isn't it?
A I'm not aware of where I have said that we never changed
branch transaction data.
Q Well, you have said -- you have answered about the part
of the paragraph I specifically didn't ask you about,
and the part of the paragraph I did specifically ask you
about is the last line where you say:
"As I explain below, those suggestions are incorrect
and Mr Roll's account of Fujitsu's actions and powers is
inaccurate and misleading".
A Yes.
Q Now, given the change of your evidence in your later
statements about the ability remotely to access and
inject transaction data, can you explain to the court
what you were saying you believed about that sentence?
What should the court now read for those words in the
light of the three statements that it has before it?
A If I take the last sentence in isolation, which is what
I think you are asking me to do, then I don't understand
how I apply it, because I am -- I have been simply
trying to say there that the frequency was not high, and
that we would always involve the SubPostmaster wherever
possible if that sort of action was actually being
taken. That's what I'm trying to say by that.
Q Well, pausing there, can you focus on the word,
"Powers", in that line? Do you see that?
A Sorry, for the word, "Powers"? Yes. Okay.
Q Yes? Let's not talk about actions, how frequently it
was done or not?
A Okay. Yes?
Q Because what you said about Mr Roll was his evidence
about Fujitsu's actions which could be the frequency,
but powers was also misleading. If we just go
through -- just for a moment we will go forward, I'm
only going to ask you this one more time, but to give
you context, let's have a look at {E2/12/9} please. By
way of example you say at paragraph 27:
"In paragraph 20 of Roll 2, Mr Roll describes
a process by which transactions could be inserted via
individual branch counters by using the correspondence
server to piggy back through the gateway. He has not
previously made this point clear. Now that he has,
following a discussion with colleagues who performed
such actions I can confirm that this was possible".
So you weren't in a position to say that this was
possible before, and you didn't say it was possible
before.
A That's correct. Yes.
Q You didn't say that Fujitsu had that power before, did
you, in your first witness statement? And you accept
that it does now?
A I accept that Fujitsu has always had that power.
I think it was a case of the phrasing of my original
statements in relation to the point I was trying to get
over there.
MR JUSTICE FRASER: Did you know that Fujitsu had that
power --
A Yes.
MR JUSTICE FRASER: -- just wait for the question.
A Sorry.
MR JUSTICE FRASER: When you signed your first witness
statement?
A Yes.
MR JUSTICE FRASER: You did.
A I did, yes.
MR GREEN: Let's step back for a moment and just look at
your role. You say in paragraph 7 of your first witness
statement at {E2/11/2}, paragraph 7, you say, at the end
of that statement:
"Although I didn't have the formal title, I acted as
the Deputy Manager to the SSC as a whole".
A That's correct. Yes.
Q Now, Mr Roll didn't remember it exactly that way. How
could people tell that you were acting as the Deputy
Manager of -- to the SSC?
A They could tell by the fact that I would stand in for
the manager in his absence. I would also make decisions
on approving actions for him and other operational
decisions in general.
Q You say at paragraph 7.1 you were responsible for the
management of incidents between December 2009 and 2010?
A That's correct. Yes.
Q Through the whole support process?
A That's correct.
Q So a detailed knowledge of that?
A Yes.
Q And 7.2 in March 2010 you became the manager of SSC and
was responsible for the provision of third line
application support to the Post Office account,
including the management of the staff working on the
account, so you well understand what third line support
does.
A I do, yes.
Q Is that fair?
A I do, yes.
Q Would you agree with the description that Mr de Garr
Robinson gave to Mr Roll of you being part of the super
elite and Mr Roll being part of the elite? Would you
regard yourself as being part of the super elite in that
way?
A I wouldn't have used that wording but in any support
group there are people of varying skills.
Q Because the impression -- I mean I understand the answer
you have just given to his Lordship is that you knew
when you did your first witness statement that it was
possible to piggy back in the way that we have seen
Mr Roll suggesting, but you didn't mention it. I'm
going to suggest to you that you gave your evidence from
the position of not being terribly well informed about
what could or could not be done. Is that right or
wrong?
A That would be wrong. It can be difficult to remember
exactly what was being done 15 years ago in detail, but
in general terms I am confident of the information I
gave.
Q Apart from not mentioning something that you knew about
when you did your first witness statement.
A Yes.
Q Now, just in terms of the role of third line support,
there are -- the support function of third line support
has got the -- there is the software support centre
which is SSC, isn't there?
A That's correct, yes.
Q And then there is Management System Support which is
a separate group?
A Yes. That is also correct, yes.
Q And you were in SSC and so was Mr Roll?
A That's correct, yes.
Q So the evidence you are giving is about SSC?
A It is, yes.
Q You would expect third line support staff to undertake
in-depth investigations into incidents, wouldn't you?
A I would expect staff within the SSC to be covering both
second line and third line roles and having varying
skills. Some of those staff would undertake in-depth
investigations.
Q Let's just clarify. Mr Roll's evidence was consistent
with an expectation that third line support would
undertake in-depth investigation into incidents. Do you
agree with that?
A I agree that that is one of the roles of the third line
group, yes.
Q And they would have detailed knowledge of the system
based on documentation and source code inspection,
wouldn't they?
A The detail of the knowledge would vary person to the
person.
Q But the third line support role, they would be expected
to have detailed knowledge of the system, based on both
documentation and the inspection of source code.
A For some members of staff that would be true, yes.
Q I'm suggesting for all members.
A No. I couldn't -- could not agree with that.
Q And I'm suggesting that definitely for Mr Roll.
A I couldn't agree with that either.
Q Okay.
They would also be trained on not only the operating
systems but also the commercial off-the-shelf packages
that underlie the application?
A That is correct. Yes.
Q And the coding languages used within the application?
A Some of them, yes.
Q No, all of them.
A No, some of them.
Q Okay, and they were also expected, weren't they, to
train themselves by examining support guides, design
documentation and so forth for the components of the end
user application?
A That is correct, yes.
Q And they would also have access to development and
package management tools to allow the production of
specialised diagnostic code, scripts and support tools.
A That is correct, yes.
Q Are you beginning to recognise this? Let's have a look
at {F/823/19}. This is Fujitsu's own document, and look
at page {F/823/19} please. Paragraph 5, and it spells
out what third line support are supposed to do?
A It does indeed.
Q I have basically just been reading this out to you.
A Yes indeed.
Q Some of it you agreed with and some of it you disagreed
with and some of it you partially disagreed with?
A That is correct in the context of individual people
within the group, yes.
Q So you would expect them, I think you would accept, to
undertake in-depth investigation into incidents; yes?
A I would expect that of certain members of staff. The
skill level varied amongst the members of staff and the
skills of each staff member on individual subjects it
varied.
Q Well, Mr Roll was conscientious.
A Yes he is. I would agree with that.
Q Skilled?
A He is scaled, yes.
Q Experienced?
A He is, yes.
Q And you gave him a personal reference?
A That's correct, yes.
Q Your witness statement slightly tends to underplay his
involvement and skill level, doesn't it?
A My witness statement was an accurate reflection of my
view of Mr Roll's skills.
Q And the answers you were giving until you began to
recognised what was being read to you, were slightly
underplaying what third line support did, weren't they?
A No. What -- there is a varying degree of skills and
actual knowledge within the group. Not everybody cannot
know everything about all aspects of the actual system.
Skills would actually vary, knowledge would vary. We
would have, and do have, specialists in different areas.
Q Let's move forward if we may, please.
Now, Mr Roll's recollection of what he was doing was
challenged in cross-examination. Were you here for
that?
A Yes I was, yes.
Q And it was challenged on the basis of the spreadsheet
which you exhibited to your witness statement. Yes?
A That was part of it, yes, indeed.
Q Because it's in your witness statement, first witness
statement, paragraph 28, which is at {E2/11/8}. You
say:
"Between 1 January 2001 and 31 December 2004 ... the
SSC received a total of 27,005 calls, meaning that on
average 563 calls per month were dealt with over this 4
year period. This is shown by a spreadsheet prepared by
a team in the SSC which appears at ... SPP 1".
Now, let's pause there. Who was in the team?
A To produce that information there were at least two
other people within my team who helped me to produce the
basic stats. I analysed the stats into the summary that
you see there.
Q Well, let's take it in stages.
A Yes, by all means.
Q Who were the people that you are referring to that did
that exercise?
A Two of my colleagues, John Simpkins and Mark Wright.
Q And they are organised and work as a team?
A They are part of my team.
Q Would they normally work together as a team?
A They would two of the senior people within the group so
yes, they often do.
Q Okay. Let's look, please, if we may, at {F/1839/1}.
Was there any reason why you didn't say who they were?
A No particular reason, no. I mean, I produced the
summary and the pivot tables in that document. I just
didn't do the searches to produce the raw data.
Q Well, let's have a look, if we may. So we have got
{F1/839/1} and we are going to look at the tab at the
bottom which is called, "RR Peak Live by Category".
It's just across there. Could we make that a little bit
bigger please? Could you scroll up to the top? If you
could hold down the control button on the keyboard and
roll the mouse forward it will just expand a little bit.
We can just see what the categories are.
A I do, yes.
Q So your evidence about what Mr Roll was doing was based
largely on this spreadsheet, wasn't it?
A It was based largely on this spreadsheet but also my
recollection of the work that Mr Roll completed.
Q I mean, you sounded a little bit hazy earlier on about
things that had happened a long time ago. This
spreadsheet you regard as important to get done, so that
it would refresh your memory. Is that right?
A I thought it was important to get this done to give the
court accurate -- more like accurate information to
support my recollection.
Q Because the accuracy of the information is very
important, isn't it.
A The accuracy is important, yes.
Q It is very important.
A It is very important. Yes.
Q That wasn't intended to be a controversial question,
Mr Parker.
Now, in paragraph 36 of your witness statement, if
we can just give this context, it's at {E2/11/9}, you
say:
"I disagree with Mr Roll's suggestion that much of
the work being carried out by the SSC while he was
employed could be described as firefighting coding
problems in the Horizon system. There were times when
the SSC was very busy, for example networking problems
causing application issues across the whole estate and
data centre outages. But there were only rare
circumstances where a coding issue had an estate wide
impact and, in those instances, Mr Roll would have been
involved in executing avoidance actions to mitigate
impact to the estate ..."
There was still a need, wasn't there, as we have
seen in the description of third line support, to
address coding issues even if they are not having an
estate wide impact?
A That is true, yes.
Q And if we look at paragraph 40 {E2/11/10} you say:
"With that in mind, the final response codes that
were allocated to incidents (ie Peaks) reported to SSC
between 1 January 2010 and 31 December 2004 were as
follows ..."
And you set them out, and you got those from the
spreadsheet that we have just been looking at?
A I did, yes.
Q And this was the basis upon which Mr Roll's evidence was
directly challenged, and this was put to him, and he
accepted that the figures that he was being shown didn't
reflect his recollection as he remembered it.
A Sorry, did you say, "Did", or, "Didn't"?
Q Did not. Sorry, I may have misspoken there. He
accepted very fairly that the figures that he was being
shown didn't reflect the situation as he remembered it?
A As he remembered it, indeed, yes.
Q Yes. So let's go back to {F/1839/1} please? It's the
one we had open. That's very helpful. Thank you. Can
we go back to that tab? That's it.
So what you have done in your -- in the spreadsheet
is the closure categories, which is a code given by the
operators when a Peak is closed by number --
A That's correct. Yes.
Q -- have been recorded in column A?
A Yes.
Q The associated description has been recorded in column
B?
A That's correct.
Q And the overall count recorded in column C.
A That's correct. Yes.
Q Yes? And then Mr Roll's count where he is expressly
mentioned --
A Yes.
Q -- as having been involved is in column D; yes?
A I would describe it not as expressly mentioned. Richard
Roll would have been the person who put the final
response on, not necessarily mentioned in.
Q So it's only where he put a final response on?
A Correct. Yes.
Q So lots of other ones where he may have done that?
A Generally no. The person who puts the final response on
is the technician who has been most involved in
completing that work.
Q But you could be involved in lots of Peaks where you are
not the person looking into them trying to help, where
you are not the person who is the final person who signs
off.
A That would be a much -- a very small incidence.
Q Well, we will have a look at that in a minute, but let's
have a look at what you have chosen to put at column E.
Now, is that your heading at column E?
A It is, yes.
Q So who did columns A and B and C?
A A, B and C were just established as a pivot of the main
data. I'm fairly sure I did that myself.
Q Okay. So you did a pivot table of the main underlying
data?
A Yes.
Q Fine, and then column D. Who did that? Who went
through and decided whether it was an RR count or not?
A The RR count, as I remember it, was based on the
original extract from the database and it would be
whether or not Mr Roll put the final response on that
Peak.
Q I understand that --
A So the original database --
Q Who did it?
A -- I see, so the original database extract was done by
John Simpkins as an sql search on the database.
Q And then potential software error. Who decided --
A That was me.
Q That's you, and then you have done the columns all the
way off to the right have you?
A I have, yes.
Q And so, "Potential software", is your description?
A That's right. Yes.
Q And you have only included four categories of those?
A I have, yes.
Q 59, 60 and 61?
A Yes.
Q And 74?
A Yes.
Q So as an example of one of the ones you have excluded,
70, you have excluded that one?
A Avoidance action, I have.
Q And you have excluded, "Administrative Response"?
A I have, yes.
Q And, "Solicited Known Error"?
A That's correct.
Q Yes. Okay. That's your decision, not Mr Simpkin's or
anyone else?
A It was mine, yes.
Q Because you wanted to give an accurate impression to the
court.
A That's what I was actually seeking to do, yes.
Q And you are very familiar with these codes and what they
involve.
A "Very", would be a bit strong. I am familiar with them,
yes.
Q If you wanted to give an accurate impression to the
court did you check with anyone before you decided on
those categories or did you just have a little bit of
a go yourself?
A I did those based on my own experience.
Q Did you check with anyone?
A No I didn't.
Q Okay. In fact, in your statement you actually go a sort
of step further and say that the potential software
error we have in column E, even that doesn't mean there
actually was one, because it could be something as
trivial as the use of, "KG", or something like that.
A It could be a trivial problem indeed, yes.
Q Yes, so even where you have plucked out, I think, four
times in his entire career where he was involved in
a potential software error on that analysis, even those
might not actually be one? That's your point?
A That is possible. It was actually 29 showing there, not
four. I think you just said, "Four".
Q Sorry, the four we see there, you are right, the total,
if we go all the way up --
A Sorry, you mean the four different categories?
Q Yes.
A Apologies. Yes.
Q I could have made it clearer. That's my fault.
You would accept, wouldn't you, that some software
errors may look like user errors.
A At first analysis I think that is possible. Generally
though, when you see a pattern of repeating user errors
you then immediately think, well, there must be more to
this.
Q Yes.
A But yes, some could, yes. Agreed.
Q It's unlikely that people will suddenly be careless in
the same way --
A Correct.
Q -- from out of nowhere.
A Correct.
Q Now, let's have a look, if we may, please, at category
68 please. You have got that in that line there. Could
you just tell the court what you understand that
encompasses?
A "Administrative Response", was used when -- in a number
of situations when there was no work to be done, you
would use, "Admin Response". When there was no
technical work to be done you would use it. It would
also be used when no other closure category was
appropriate.
Q Okay. Well, it was specifically not to be used as
a catch-all for, "Unable to decide which category to
use".
A That would be fair.
Q The reason it's fair, I think, is because if we look at
F -- we will keep that available as it is if we may --
but if we look briefly at {F/823/24}, albeit a 2011
document, we can see there, "Administrative Response",
at 9.1.9:
"Only to be used for closing calls which cannot be
closed in a legitimate category for 'administrative'
reasons -- eg incident incorrect changed by the
system ... test calls; mis-routes; double escalates;
unintended escalates, etc".
So it is an Administrative Response, isn't it?
A I would agree with those, yes.
Q What it is not to be used for, as we see there
expressly, it is not to be used as a catch-all for,
"Unable to decide which category to use".
A It does say that indeed, yes.
Q Now, let's have a look, if we may, at {F/16/1} please?
We need to look at the second page of this because
that's where it actually begins, the text begins on
{F/16/2}. It's Peak 0027887 and it's given a category
B, "Business restricted". That is a serious category,
isn't it?
A It's one of the more serious categories, yes.
Q Because it only goes up to A.
A A through E, yes.
Q So this is the second-highest category?
A It is.
Q We have seen this one before during the trial, you have
probably been in court when it has been mentioned, it is
the one where there is a balance bought forward on week
12 of £1 million, over £1 million -- £1,082,544.32 --
that subsequent doubles; yes?
A Yes.
Q It's very serious. It is described in the summary as,
"Receipts and payments mis-balance"; yes?
A It is indeed, yes.
Q And then if we look on page {F/16/3} of that please, you
can see the doubling in the bottom box, the bottom
yellow box.
A Yes.
Q To £2.279 million?
A Yes.
Q Then it says:
"The discrepancy was therefore 1,082,540.28. This
was due a known software error which has no been
resolved".
A That's correct.
Q Now let's assume in your favour that that was, "Has now
been resolved"; yes?
A I don't know but --
Q Or, "Not been resolved". We don't know.
A It must be either, "Now", or, "Not", I would think, yes.
Q If we go to page 8 please {F/16/8} we can see in the
bottom box of 13 October a number of different
investigations into different periods, periods 9, 10 and
11 and 12 and 13.
A Yes.
Q And at the bottom we can see that there is an agreement
at least with Mike Crowshaw's explanation of the
imbalances in periods 10 and 11 which were due to
a stock transfer of £12,000 which was not settled
correctly to the presence of a corrupt DLL file on the
PC involved.
A That's what the notes say, indeed.
Q And there are various different aspects they are also
investigating. They are concerned they may not have
sufficient evidence; yes?
A Yes.
Q Over the page, if we see at {F/16/9}, insufficient
evidence at the top, then further data provided, yellow
box at the bottom, halfway down:
"I have obtained new evidence ..."
There are ten different people working on this Peak.
That's not uncommon, is it?
A Those extra people working on the Peak are in the
Development group and not the SSC but I would agree
there were multiple people working on this Peak, yes.
Q And if we go to page {F/16/11} there is a target release
halfway down, set to M1 to reflect the categorisation.
A Reflecting the release when this might be fixed at, yes.
MR JUSTICE FRASER: Where are you looking?
MR GREEN: Sorry, halfway down my Lord.
MR JUSTICE FRASER: Which colour?
MR GREEN: In the yellow box, July 2000, 11.03.
MR JUSTICE FRASER: Yes.
MR GREEN: If we go over the page {F/16/12}, some surprise
being expressed at the bottom of the page that it only
had six counter 32 transactions. Counter 32
transactions are transactions that had not been done by
the SubPostmaster or assistants, aren't they?
A Without looking at the original data I cannot be sure
what that notation means. I could assume that 32 was
the identifier used for central correspondence servers
and not the counters.
Q Yes.
A That's all I can sensibly say without looking at the
original data and not actually knowing why that
particular note has been made.
Q Well, that was what the significance of 32 was, wasn't
it?
A I don't know --
Q Normally.
A -- in this case. 32 is the identifier used for
correspondence server main data centre server messages.
Whether that's what was meant here I don't know.
Q Okay. Then you will see on {F/16/13}, a third of the
way down:
"I see this is a very old problem ..."
July '99:
" ... there have been many ... updates ... may I
suggest we discontinue investigation of this particular
problem ..."
Just underneath that you will see the defect cause,
three lines up from the bottom, updated to
development -- code?
A Sorry, where are you? Three lines up from the bottom?
Sorry, of the top box?
Q Of the top box. You see that?
A Yes. Got that.
Q You have got, "Code", and then in the box below:
"Closing call on the basis of insufficient evidence.
As this is such an old call I have not contacted the
call originator. I suggest that this call remains
closed!"
Do you see why there is an exclamation mark there?
A I don't know.
Q And then we see it is categorised as Category 68,
Administrative Response?
A It has been closed that way, indeed.
Q And it's right, isn't it, that that would have involved
people looking into code and trying to find out what had
gone wrong and trying to trace the underlying cause of
the incident.
A In the example that we see there, the Development group
were doing that work, yes.
Q Yes, and the person in SSC would have been looking into
it too?
A I don't know to what extent Microsure was involved in
looking into code on this particular incident.
Q You don't know that, but that's quite likely to have
been done, isn't it?
A I cannot say.
Q Okay. Let's have a look at another one?
MR JUSTICE FRASER: Well, before you go on, categorising
that in your spreadsheet you took from the category that
had been identified in the Peak. Is that right?
"Administrative Response".
A The spreadsheet reflects the final response used in each
Peak, yes.
MR JUSTICE FRASER: Yes. Right.
MR GREEN: Let's look, please, at {F/1326/1}. You will see
in the -- halfway down you will see:
"Up to 10 unnecessary reconciliation errors each
week, requiring calls to be raised and checks made.
Could obscure genuine issues"; yes?
A That's -- yes. Got that, yes.
Q It is a description of what we are dealing with?
A Yes.
Q It is assigned category C, non-critical?
A It is indeed, yes.
Q Just look in the yellow box --
A The first yellow box?
Q Yes.
A Yes?
Q 11 March:
"Please note (in capitals) this call has an 8 hour
SLA".
A That's correct, yes.
Q Service Level Agreement?
A Yes.
Q So it had to be closed within that time; yes, to comply
with the SLA?
A The MSU had to respond to it within that time, yes.
Q Okay.
If we go over the page, {F/1326/2}, if we look in
the -- Anne~Chambers gets involved. She is involved, it
seems -- appears in a lot of these. Does she still work
at Fujitsu?
A No she doesn't, no.
Q When did she leave?
A I cannot be very accurate -- three, four years ago she
retired.
Q Okay. Looking at the top of page 2:
"After investigating the specific incidence I will
use this call to investigate the sudden increase in
zero-value state 4 reconciliation calls -- something
must have changed somewhere. DRS data currently goes
back to 11 December".
So that's rather the point you were making about
when you get a pattern it's important to investigate it
seriously?
A It is indeed, yes.
Q If we go to page {F/1326/3} please, and we look at the
bottom box of that, Anne~Chambers, she is in SSC?
A That's right, she is.
Q And she is investigating this?
A That's right.
Q She says:
"I finally have a theory as to what is happening,
and I think it must be connected to a BAL change ...
That's the Branch Access Layer?
A It is.
Q "... made in release 11.7 which went live on 8
February".
See that?
A I do.
Q And if we go down to the penultimate paragraph:
"It is these unsettled transactions, where the C0
has reached TES prior to settlement, which are giving
the reconciliation errors ... I have made various checks
of TES timestamps before and after the upgrade which
support the scenario. Please can development check what
went into R11.47 which has changed the behaviour.
Related to failure to read recovery data?"
You can see there, "PC0234448 was fixed to change
the behaviour but I think it went live at an earlier
release?"; yes?
A Indeed that's what it says, yes.
Q So there are ten people working on this Peak as well --
over ten actually?
A Where are the -- I will have to take your word for that.
Q There are more than ten different names people dealing
with it?
A That is a slightly dangerous assumption because some of
those people will have been admin people transferring
things round, but --
Q Okay.
A -- that would only account for one or two.
Q Okay.
Let's look at page {F/1326/4} please. To be fair,
Anne~Chambers is driving this?
A From the SSC perspective, indeed, yes.
Q And halfway down:
"A new business impact has been added: Up to 10
unnecessary reconciliation errors each week, requiring
calls to be raised and checks made. Could obscure
genuine issues".
That appears to be the source of what we saw at the
beginning?
A It does.
Q And if we look at the bottom of the page in the yellow
box, Anilkumar Malipatil is Anilkumar in SSC or this
development?
A No, that would be a member of the Development Team.
Q Okay. He says:
"This Peak is the regression of the Peak PC0234448";
yes?
A Indeed he does, yes.
Q And underneath he has put:
"Category 41 -- product error diagnosed"?
A He does indeed, yes.
Q The reason he does that is because there has been
a regression to a problem that had previously happened
as a result of a subsequent software release not having
caught a fix?
A That's the note that the developer has made, yes.
Q And if we look on page {F/1326/5} please, towards the
bottom of the first blue box, penultimate paragraph:
"Risks (of releasing and of not releasing proposed
fix): Without this fix, there will be possibilities of
system errors at counter and while doing reversal
transaction"; yes?
A That's what it says indeed.
Q So that would go into the decision to do the fix or not,
and then if we go forward to page {F/1326/9} please, we
look at the very bottom there, so we have got
Mr Boston -- who is he, three up from the bottom?
A I'm trying to -- John Boston had various roles that were
mainly administrative. I don't know what role he held
in September '16.
Q Because up to that point we can see it is being
categorised as category 60; yes?
A Yes.
Q And final -- and there is a fix that has been released
to live because we can see that above in the yellow box,
just over halfway down.
A Yes?
Q It says:
"Fix been released. SW fix available to call
logger".
Then let's have a look at how it's closed out by
Jason Muir:
"Now seeing minimal if any zero state 4
transactions. Closing Peak is complete..."
Oh. It has become 68 suddenly.
A That's how Jason who has closed it -- Jason is a member
of the management support unit.
Q Mm-hmm, so that is one where everyone has been working
on the code trying to develop a fix, been released into
live, and it is closed Administrative Response?
A That is what has happened in this case, yes.
Q If it wasn't so serious to challenge Mr Roll's
recollection on the basis of this -- all these
categories, some of these categorisations are almost
comical, aren't they, Mr Parker?
A I wouldn't describe them as such. I think I do say in
my witness statement that they are the subjective view
of the person doing the closure. I would go on to say
that they were not -- I accept they were not always
right, but in the most cases they were right.
Q Well, that's not accepted, for the avoidance of any
doubt.
You also say that there was no review -- after you
said in your statement that they were subjective, you
also say there was no review undertaken to ensure
consistency or appropriate categorisation?
A That's correct, yes.
Q It's not very robust, is it?
A The codes are used to generally assess the workload. As
long as they are mainly correct they support that
function.
Q But there is no way of checking whether they are mainly
correct, as you have fairly pointed out in your witness
statement?
A That's correct. Yes.
Q Rebut the question: not very robust, is it?
A Depends on the purpose. I would -- the purpose they
were used for was to actually assess the workloads.
They were not expected to be 100 per cent accurate.
Q But accuracy is important for you to have any fair view
of what's actually being thrown up by the system, isn't
it?
A Accuracy is important, yes. These were used to assess
the workload, not for any forensic purpose.
Q And we also know that the proper management -- just as
an aside -- the proper management system wasn't brought
in either. We covered that with Mr Godeseth, you were
here for that?
A Yes.
Q So there was no problem management system brought in,
notwithstanding it was internally recommended, and so
all you're left with is this system of looking at the
codes and seeing how they have been categorised on
closure.
A I'm sorry, I don't understand the correlation between
response codes and the problem management system.
Q Because the problem management system was going to track
what sort of problems were being encountered into
a structured way so that an overall monitoring of the
system could be done, and give an idea and feedback of
where the problems lay, and that was not brought in and
that appears to have been a deliberate decision. We
covered it with Mr Godeseth and you were here. So I'm
saying in the absence of that, all we are left with,
data-wise, are these codes, and I have got an entire
file -- I'm not going to be able to go through all of
them with you -- but I'm going to keep going through
them and I'm going to show you how all of these have
been closed, including all the big categories that
Mr Roll did, so I'm going to ask you now; do you accept
that it was unsatisfactory not to have a proper system
in place to ensure these codes were accurately
allocated?
A For the purpose for which I was using them I cannot
accept that. They were used as a general guide to the
workload.
MR JUSTICE FRASER: When you say, "Purpose", you mean the
purpose when you were doing your job at the time, not
the purpose in compiling your spreadsheet for the
witness statement?
A Yes. Correct. Yes.
MR JUSTICE FRASER: Because you have used them -- I think
you have been quite fair, you have used them for your
spreadsheet but you have taken the way that the person
categorised them, you haven't made a separate
categorisation of your own.
A That's correct.
MR JUSTICE FRASER: If you are going to start going through
your file we will need a five-minute break for the --
MR GREEN: My Lord, shall we take that now? We have got
quite a lot to cover, so ...
MR JUSTICE FRASER: Yes. Now, you do only have two hours.
MR GREEN: I understand that, my Lord, that's why I'm going
at some pace.
MR JUSTICE FRASER: And some of it, if I may, with
respect --
MR GREEN: Was a bit long?
MR JUSTICE FRASER: Well, it also verged quite a long way
into prior submission before you actually put the
question. It's really about evidence, not arguing the
case. So shall we have the five-minute break now?
MR GREEN: By all means.
MR JUSTICE FRASER: Right. Mr Parker you get a five-minute
break, I encourage you to leave the witness box, move
around, stretch your legs, we will come back in at two
minutes to twelve.
(11.55 am)
(A short break)
(12.02 pm)
MR GREEN: Mr Parker, on the basis that you haven't reviewed
any of these Peaks to look at their content, and you
have merely relied on the codes that have been
allocated -- yes? Is that right?
A Indeed that's correct, yes.
Q So I'm just going to put some example ones to you to
save time.
A Thank you.
Q Let's look at Code 62 which is, "No Fault in Product".
A Yes.
Q We will take an example at -- well, first of all can you
just tell the court what you think that means? What
does, "No Fault in Product", mean?
A I would probably be better to refer to the document,
but, "No Fault in Product", would generally be used
where we cannot identify a software fault in the
particular piece of the application being looked at.
Q Did you go back to the document before you allocated the
figures in the table on F/1839 to the ones that had
potential software error?
A I did. I reviewed it.
Q Did you? You actually went back to this document?
A I reviewed the content of it, yes.
Q When you say, "Reviewed" --
A I read through it once more. Some of those category
codes are not ones that I -- when I was a technician --
would have used on a regular basis because they were
development codes, so it was necessary for me to refresh
my memory.
Q Okay. Well, let's be fair to you. Let's go to
{F/823/23}. We are going to look at Code 62 which is
9.1.3, "No fault in product".
A Yes.
Q It indicates that:
"The product is working to specification. No
changes are required in software code, scripts,
hardware, documentation, work instructions or training
plans. Really indicates that the previous lines of
support have completely miss-diagnosed the problem".
Yes?
A That's what it says indeed, yes.
Q Is that -- did you read that one?
A Yes. I would have read that one.
Q Well, "Would have", and, "Did", are different, aren't
they?
A I did read that one, yes.
Q Okay. Let's look, if we may, now, please, at {F/97/1}.
This is a phantom transaction one. We have also seen
this one before. You can see in the, "Call status", at
the top, "Closed -- no fault in product". Do you see
that?
A I do.
Q We can see that -- if you come down just below -- it is
about the fifth line down, 14.04.01 at 12.55:
"Information: PM ... wishing to complaint about
ongoing system problems. PM had previous complaint open.
That PM was under impression correctly that it would
only be closed with his permission".
Now, pausing there, the Postmaster was right about
that. They should be closed to the SubPostmaster's
permission, shouldn't they?
A That would be a Help Desk process, so I would think so,
yes.
Q Is that something you actually know about or are you
guessing?
A That is something I do not have personal experience of.
I would expect that to be part of the Help Desk process.
Q Okay:
"PM very unhappy about this".
Now, if we go down to about three-quarters of the
way down that page you will see 17.0 4.01, 9.48, and the
word, "Contacted".
A I have got that, yes.
Q "I have left a message on Ki Barnes' voicemail as the PM
is now complaining about her. I was speaking to her
about the last complaint call and we both feel that this
PM is complaining unjustly. She has been in contact
with him and I feel he is complaining because the
feedback has been advising it is user error whereas the
PM thinks it's software".
Yes?
A That's the notes, indeed.
Q So that's sort of suggesting that they have given the
feedback to the SPM that it is user error and the SPM is
a bit distressed and cross about it?
A Suggest that, yes.
Q Okay, and there are a number of further entries. I will
give you an example of one if we go to page {F/97/2}.
You can see at the bottom of that page in the yellow
box, half way down:
"The system is still playing up in that the screen
is hanging in the middle of transactions -- PM did
transaction ... but left office for 1 hour -- when he
came back the monitor had 141 first-class stamps on
screen totalling £38.07", see that?
A Yes. I see that.
Q You would accept that that is not how the system is
supposed to work. Is that fair?
A That's fair.
Q If we go over the page, please, to page {F/97/3}. At
the top:
"I have advised that problem may be due to
environmental issue. May be investigated as such" --
MR JUSTICE FRASER: Where are you reading?
MR GREEN: Sorry, the top yellow box.
MR JUSTICE FRASER: You mean the top yellow box?
MR GREEN: I'm so sorry, top yellow box. Do you see that,
"Possibility of hand-held radios or x-ray machinery, or
is it more likely a software problem", and then {F/97/4}
over the page, halfway down, just a bit less than
halfway down, the letters, "PM would like to add current
complaint"?
A Just below the bold text, isn't it. Yes.
Q "PM would like to add to the current complaint that
transactions are currently appearing and disappearing on
screen and also the PM's counter printer has not been
working either. PM had a message on screen stating to
abort transaction, then the screen froze and timed out.
When logged back in, the transaction was not on screen.
PM re-booted the printer, and a receipt for this
transaction was printed. Now the printer won't print
any receipts whatsoever for any transaction. This is an
ongoing problem".
That's not how the system is supposed to work, is
it?
A It's not, no.
Q And if you look a little bit below that it says:
"Information: PM feels that the system is
unreliable. PM cannot trust this system".
A That's what's said, yes, indeed.
Q And if the PM's experience was as recorded, which you
don't know about, that's not an unfair reaction, is it?
A No. It's not.
Q And if we go to page {F/97/5} --
MR JUSTICE FRASER: Just before you do, go back to {F/97/4}.
You see towards the bottom there is an entry, 1 May
10.56? It's been 20 lines up.
A Yes.
MR JUSTICE FRASER: Do you see that one? Underneath it
says, "Information: ROMEC". Do you see what ROMEC do?
A Engineering. They were the hardware engineering team.
They also did Environmental Surveys.
MR JUSTICE FRASER: Mr Green?
MR GREEN: If we go over the page to page {F/97/5} and look
at the bottom, we have got -- there is -- just -- 3 May
2001, 15.34:
"Information: ROMEC have been to the site and done
all that they can do. There is no more UK SS2 can do
for this site"; yes?
A Indeed.
Q And just below that:
"Ki Barnes has called in. I am unsure as to what to
do with this call now. ROMEC have been to site and
state that they have actually seen the phantom
transactions, so it is not just the PM's word now".
A That's what it says, indeed.
Q "They've fitted suppressors to the kit but the PM is
still having problems. As yet there's been no recurrence
to the phantom transactions but there still may be
problems". Do you see that?
A I do, yes.
Q So there we have got third party witnessing of the
problem by ROMEC, haven't we?
A We have, yes.
Q If we go to page {F/97/7} please:
"I now have pressing evidence to suggest that
unwanted peripheral input is occurring, the likely
source being the screen. This has been seen at old
Isleworth ..."
This is in the yellow box at the bottom.
A Yes, I have got it.
Q Do you have that:
"And warn with OI being the best site. When the PM
has been asked to leave the screen on overnight I have
observed system activity corresponding to screen presses
happening with no corresponding evidence of either
routine system activity or human interference. The way
forward now is to correlate this with Microtouch
complied monitoring software and to this ends Wendy is
arranging for installation of the kit on Friday ..."
And so forth. Do you see that?
A I do.
Q So that's further evidence there, and then if we go to
page {F/97/9} please, the bottom of page 9 --
A Yes?
Q "Phantom transactions have not been proven in
circumstances which preclude user error".
A Indeed.
Q "In all cases where these have occurred a user error
related cause can be attributed to the phenomenon"?
A That is what it says, indeed.
Q So the -- go over the page if we may {F/97/10}:
"I'm therefore closing this call as no fault in
product"?
A That's correct.
Q Is that no fault in the system as a whole or no fault in
the Fujitsu software or no fault in either? What does
that mean?
A I would interpret that as being no fault in the
application software.
Q But it is something that people would have been trying
to work out and investigate from all perspectives.
A There was a lot of work going on there, indeed.
Q Yes, and those perspectives would also have included
trying to see if there was any underlying software
cause, as well as hardware.
A Yes.
Q And if we go, please, to {F/100.1/1}, that is Peak
0068327?
A This is a different one I assume from the previous one;
yes?
Q Yes, and this is priority status B, and that is
a relatively high status, as we have established?
A That's right.
Q And it's closed, "No Fault in Product", and it looks as
if -- it says here:
"PM reports he has been having phantom transactions
continually for months ..."
MR JUSTICE FRASER: You have really got to tell us where you
are on the page.
MR GREEN: I'm so sorry -- at the top my Lord.
MR JUSTICE FRASER: At the very top? Yes.
MR GREEN: Very top. Still persisting, and then, "Advice",
just a little bit further down:
"Advice: PM reports that 2 resistance monitors were
sent out but only 1 was replaced as 1 was faulty. The
resistance monitor that was replaced is causing the
problems".
Then if we go down towards the bottom of that blue
box you will see, "Information", in the left-hand
Marcher under 25 July '01, 10.35:
"This office has been identified as a problem office
and as such is being monitored. Wendy Kerrigan has
asked SSC/Development for Performance Monitoring at this
outlet. I suggest this goes to SSC possibly for the
attention of Pat Carroll as he is dealing with phantom
transactions".
Who was Pat Carroll?
A Pat Carroll was one of the senior technicians within the
SSC.
MR GREEN: Was he elite or super elite in my learned
friend's jargon?
MR JUSTICE FRASER: Well, that's not really -- the witness
has already said he didn't agree with, "Super elite",
and, "Elite", and he doesn't know what Mr de Garr
Robinson is doing when he is categorising people.
MR GREEN: Was he at your level of seniority or close to it
or was he similar to Mr Roll? Where was he.
A He was above Mr Roll, a similar level to myself at that
time.
Q So it was quite a serious issue, having phantom
transactions, wasn't it?
A It would be, yes.
Q And thence the category B priority?
A That -- yes. That's true, yes.
Q And if we look at page 2 of that {F/100.1/2} we have got
5 September 2001 in the yellow box, the lower yellow
box:
"Following a significant amount of monitoring we
have been unable to definitively link any
equipment/environmental issues to any particular event.
There have been incidents which showed a possible
correlation between system activity and phantom
transactions. These pointed to a touch screen problem
and as a result the screen was replaced with a resistive
model. As this produced no measurable improvement it
has to be assumed that the problems were user related".
That's closed, "No Fault in Product"?
A It is indeed, yes.
Q And if we go, please, to {F/174/1} this is a KEL which
2000-2004 we can see. Do you see that?
A I do.
Q And it is items appearing on stack without being
selected. That is essentially phantom transactions. An
example of phantom transactions?
A It could be indeed, yes.
Q Symptoms:
"There have been several calls over the last few
months where Postmasters have reported phantom sales.
Items appear by themselves for which the PM has not
pressed an Icon. These may be individual items or
several of the same item. Sometimes when no one has
been near the screen items may appear".
Now, pausing there, your point earlier is when you
get a pattern of these things happening you have to take
notice that it might be system issue?
A We would do, yes.
Q Problem: Since the system cannot put items on the stack
without being told to, the desktop must be receiving
specific requests to sell the items in question. In the
cases I have looked at I could only conclude that either
the screen or the keyboard has been generating key
sequences. A more recent case revealed that the cable
between the screen and the base unit was the root
cause".
Then we see, "Solution -- ATOS":
"In the first instance send an engineer with
a recommendation to replace both the keyboard and the
screen. (Also check whether there is a problem with the
screen cable)".
There are detailed instructions then in terms of
evidence for Pat Carroll to deal with environmental
issues, so would your answer to the previous -- on the
previous Peak be the same that where it is No Fault in
Product what has been recorded is the conclusion is it
doesn't appear to be a software issue, whatever else it
may be?
A It would, yes.
Q And if we now have a look, please, at {F/718/1} --
sorry, yes, F/718 -- now, we are turning here to
Code~70, "Avoidance action supplied". Could you tell
the court what you understand that to be?
A It could be classified as an actual work round we have
advised on some action to be taken to avoid the symptoms
that have been described.
Q Well, let's pause there. Do you accept it is to be used
where there is a fault in the product?
A Not necessarily.
Q Well, let's have a look at {F/823/24} to see what the
document that you recently considered says. What we are
looking for here is avoidance action supplied, and
the -- it's actually over the page, if you have got page
24 there, it's 9.1.10, and the word, "Is", which I
emphasised in my intonation, is in capitals?
A It is indeed.
Q So the correct answer to that question would have been,
"Yes"?
A It would indeed.
Q And you now accept that?
A I do.
Q Okay. So having done that, can we go back to {F/718/1}
please? And this has only been given a priority of C.
Do you see that?
A Yes I do.
Q It is non-critical?
A Yes. Yes I do.
Q And the Service Level Agreements treat priority Level A
and B to the other priorities, don't they?
A We don't have SLAs we have OLAs but yes, there are
different operational timescales to them, yes.
Q And it is also stricter for compliance with priority A
and B than it is for --
A It is, yes.
Q -- the consequences are different, aren't they?
A The consequences are different. The actual operational
timescale which we are expected to respond to is lower
as you go up the priorities from E to A.
Q Yes, and there are liquidated damages thresholds for the
engineer's service and resolution of calls at the Help
Desk for priority A calls and priority B calls, but
there aren't for priority C calls in the same way.
That's fair, isn't it?
A I believe that was the case.
Q Okay.
So as soon as something is priority A or B it means
that those liquidated damages provisions are in play,
but if it's C they are not in play.
A They would be in play for the hardware side but not if
it's a software fault.
Q Okay. Let's have a look. {F/718/1}. This we can see
has Avoidance Action Supplied at the top; yes?
A Yes indeed, yes.
Q Which we have seen is to be used where there is a fault
in the product.
A Yes.
Q And if we go down to the yellow becomes and under the
double tram lines you will see:
"PM states that he has rolled over but the system is
telling him that he hasn't -- PM states that he is in
balance period 7 and he states he is getting the message
'wrong trading period MSG 31318 office balancing
error'".
Yes?
A Yes.
Q You will see in the log line below:
"Non-zero trading position ... on rollover of branch
by user WMC002 to trading period 8".
Do you see the problem?
A I do.
Q So this is a type of payments mismatch issue, isn't it.
A I would be hesitant to classify it as that. All I can
say is it's an office balancing error. That's all I can
see there.
Q Well, just give me a second. (Pause)
Let's go forward, if we may, to page {F/718/2}. If
we look at the bottom yellow box please, Cheryl Card.
Who is she?
A She is a member of the SSC.
Q And who is Lorraine Elliott?
A She was the SSC administrator at that time.
Q And Sheryl card in the bottom yellow box, 27 September
2010, 15: 16:
"The problem occurred on 15/09/20 when stock unit
02 rolled over. This was originally reported, as per
KEL, BALLANTJL759Q, in call PC0204537 ... but for some
reason the call was closed without being investigated.
There is a known problem with the use of the Cancel
button during the stock unit rollover. This is fully
described in KEL WRIGHTM33145J".
Do you recognise that KEL number?
A I don't, no.
Q But that is the payments mismatch number, isn't it?
A I did not recognise it as such. Without seeing it ...
Q Okay, because you didn't look at any of these before you
gave your evidence and compiled the spreadsheet?
A No I didn't, no.
Q And if we go to page {F/718/3}, top of the page --
I think someone may want to say something?
MR JUSTICE FRASER: No.
MR GREEN: Apparently not.
MR JUSTICE FRASER: Or not yet.
MR GREEN: Top of the page on page 3:
"As agreed routing to Gareth Jenkins as at bus apps
desk for advice on how to correct the differences"?
A That's right. Yes.
Q Next yellow box down:
"The branch accounts will need be corrected ..."
A Yes.
Q And advice about how to do that, and if we just go to
page {F/718/7} please, if we look at the severity in the
blue box at the top of the page, it says, "Critical",
doesn't it?
A Yes it does.
Q Yes. "Severity: Critical", but we saw that the Peak
incident management system records it as non-critical?
A It recorded it as C I believe, didn't it?
Q C is non-critical. The definition of C is,
"Non-critical".
A Yes. Correct.
Q Then at the bottom of that page in the yellow box:
"The software issue that caused the discrepancy is
being monitored and all instances are being reported
directly to POL duty manager with all the relevant
figures and reports. I have confirmed that this issue
at this office has already been reported through. P O L
will get in touch with PM regarding any remedial
actions. Closing call ... Call type category 70 ...
avoidance action supplied"?
A Indeed.
Q So there has been pretty detailed investigation of
what's going on and what's gone wrong and it's closed as
Avoidance Action Supplied because that's where there is,
by definition a fault with the system?
A Indeed.
Q So it would be fair to say that a fair categorisation,
if you had read the definition of, "Avoidance Action",
as you say, a fair categorisation on your spreadsheet
would have included that code, wouldn't it, for
potential software errors?
A That code, in my experience, has not always been used
purely for potential software errors, and that's why I
categorised it in a different way from that in the
document. That's the best I can -- you know. Avoidance
Action Supplied has not always been used purely for
a software fault.
Q Well, there are two layers of chaos. One is the way
that categories are assigned. Do you agree with that?
A I agree that they are not checked after use.
Q And that they are highly subjective?
A And that they are very subjective, yes.
Q And the second point is that when you were compiling
your witness statement you went a bit off piste and
departed from the definition that you say you read. Is
that fair?
A It's fair to say that I used the definition my
experience dictated rather than that in the document.
Q You didn't think that was important it make clear to the
court?
A I forgot that that was exactly what I had done in that
circumstance when I prepared that a few months ago.
Q Mr Parker, I will give you an opportunity to consider
this. Is the truth of the matter that when you
looked -- well, is the truth of the matter that you had
not specifically looked at the words of the Avoidance
Action Supplied definition and you went with
recollection without considering the tension between the
definition and your recollection?
A I read the details in that document to refresh my memory
and allocated the codes based on my experience and the
document.
Q Well, in that case, it appears you have taken
a deliberate decision to exclude a category which you
knew included a fault with the product from Potential
Software Error column. Is that what you did?
A What I did was I used my experience to put that in what
I believed to be the right category heading for it.
Q So it was a deliberate decision to depart from the
definition in the documentation we have looked at and
record it as not having even the potential for
a software error? Is that your evidence?
A My evidence is that my experience is that it is used
more times when it is outside a software fault than
inside.
MR JUSTICE FRASER: I wonder if you could put the question
a third time.
MR GREEN: Was it a deliberate decision to depart from the
express words that you had looked at carefully -- or
looked at?
A Yes. It was.
Q Why did you think that was an appropriate thing to do
when giving your witness statement knowing that you were
challenging Mr Roll's recollection by doing so?
A Because my -- that was the value and the way it was used
based on my own experience, so I felt that was a fair
way to define it.
Q Let's look and consider your experience.
What we have seen so far on this example is that
your experience conflicts not only with the content of
this example, but with the definition in the policy
document.
A It conflicts with the definition, certainly, yes, and
this particular example.
Q I suggest to you that Mr Roll's recollection of what he
was doing is correct in the light of what we have seen
so far, isn't it?
A I stand by the original use of that spreadsheet. It is
used to classify, in general, the workload that the
support units do, and that's the way I used it when
I was trying to classify Mr Roll's work.
Q Okay. Well, let's have a look at {F/93/1} then please.
Again, this is actually priority B, business restricted;
yes?
A Indeed, yes.
Q And it is closed for Avoidance Action Supplied?
A Yes.
Q "PM reports she had a discrepancy of a gain ..."
And then it runs out. If we look at the top of the
blue box, please, 15 March 2001:
"PM reports she had a discrepancy of a gain, so she
rolled everything over, and then redeclared her cash,
and adjusted her stock then tried to roll over again by
going to Balance report F6".
If we go down a little bit further in relation to
further advice:
"PM reports that after she had rolled over stock
unit and office she redeclared her cash".
Then underneath that:
"When it got to the print, preview and exit screen
she chose preview like she always does but then it
printed off final balance instead of the trial balance
like the PM wanted. Now she is in CAP01, period 01,
instead of CAP52 of the previous year. Business period
2. Period 2. PM believes this is a software issue.
Search KEL couldn't find a reference." Yes?
A Indeed it does, yes.
Q Now if what the PM was saying was happening the system
was not working as it should, was it?
A That's true, yes.
Q If we go down a little bit further you can see that just
to rule out a calibration error on the screen they
checked calibration.
A Yes.
Q And the PM says calibration is fine, not out of
alignment, because that was an issue that sometimes
happened, wasn't it?
A There were screen calibration issues, yes.
Q And if we go over the page, please {F/93/2}, in the blue
box, if you come down underneath 1, 2, 3, 4, 5, 6, it
says:
"I believe and also PM confirmed that the 'preview'
button had been pressed for the second time which may
have resulted in final balance printout and SU roll to
CA P1".
So that's your point about when there is a pattern
you have to take it seriously?
A Mm-hmm.
Q And then it refers to two other Peaks. Do you see
those?
A I do.
Q And a KEL, PSTEED34T?
A That's right, yes.
Q "I've advised PM not to press preview or print button
which may cause this type of problem again. PO now have
stock unit 1 CAP ahead of office and therefore PM need
to contact NBSC and seek help on what to do on Wednesday
before rollover"; yes?
A Yes indeed.
Q So the Postmaster has been left to deal with the
consequence for rollover with the help of the NBSC?
A Indeed that's what those notes say, yes.
Q Then at the bottom of page 2, "Have looked at ..."
In the blue box, Martin McConnell. Who is he?
A Martin McConnell was a developer I believe.
Q In the penultimate yellow box he tried to reproduce the
scenario, putting the system under load and so forth?
A Yes.
Q And found he couldn't.
A Yes.
Q Not sure what to suggest. He says:
"Have looked at the PS log, also this does not
reveal any unexpected impulses from other applications.
Spent a few days on this as has Alex Kaiser (in previous
incarnations of this problem)".
There had previously been examples of it. Who is
Alex Kaiser?
A I don't know.
Q "I have no choice but to pass back as insufficient
evidence but would ask that EDSC keeps an eye out to see
if any patterns arise or any sign of the problem
actually being reproduced at will".
Insufficient evidence there and then if we go to
page {F/93/3}:
"Have looked at the PS log".
Got the same message again and then it's actually
categorised as Avoidance Action Supplied.
A It is.
Q Yes? Which is correct where there is a fault in the
system, as we have seen.
A According to the documentation, that's correct.
Q And if we look at the two Peaks that it refers to --
MR JUSTICE FRASER: Just before you do that, on {F/93/3},
Mr Parker, where it says:
"Clearly we need to keep an eye on this type of
situation, the systems we have tried to reproduce on
contains adding all bug fixes ..."
Do you read that as meaning the systems on which
they are trying to replicate the problem?
A Yes I do.
MR JUSTICE FRASER: Is that the same as the expression,
"Test rig", that has been used in other areas?
A Not necessarily. I would think so. I mean, all I read
that to mean was that they weren't sure because the
version of software on the systems they were trying it
on were not the same as what's out in the --
MR JUSTICE FRASER: In the field?
A -- in the field, yes. That's how I would read it.
MR JUSTICE FRASER: Mr Green, back to you.
MR GREEN: I'm most grateful.
If we just look briefly at the -- there are two
other Peaks, I'm not sure I have got time to deal with
them.
MR JUSTICE FRASER: Remember you need to leave time for
re-examination.
MR GREEN: My Lord yes.
Can we just briefly, please, look at {F/589/1}? You
will see this is non-critical and closed with Solicited
Known Error. Do you see that?
A I do.
Q That is a problem of duplicated pouches, as you see
underneath the two tram lines.
A Yes.
Q And the amount that was renned in twice was £25,000.
A That's what the notes says, yes.
Q It's pretty serious for the SubPostmaster?
A I would think so, yes.
Q But category priority is C, non-critical?
A That's correct.
Q And at {F/589/3} if you look down the penultimate blue
box, 5 March 2010, 12.33:
"POL have been informed of the error. Hopefully
they'll issue a TC to correct loss at the branch. The
underlying problem caused by using previous button
during or just after scanning pouch barcodes, is still
under investigation".
It is closed as Solicited Known Error?
A That's correct.
Q If we look, just going forward for a moment to
{F/1156/1} we can see there again C, non-critical,
closed, No Fault in Product, P doing cash declarations
every now and again has a major loss, and you can see in
the yellow box towards the bottom underneath, "Log",
about three-quarters of the way down:
"PM has had cash declaration problem throughout the
year and it losing a lot every now and again".
Do you see that?
A I do.
Q "He 'phoned up helpline told him can't of declared
properly. He states that he losses £2,000 then jumps
suddenly to £4,000, one point they lost £8,000 and is
always losing money. PM stated that he has three post
offices, only happens on this site", and then about
five, six lines up from the bottom:
"Done a declaration this morning and had a £6,000
also. It shows no error message when doing it. No
report prints out only print-out of cash declarations".
Pausing there, if the PM is correctly reporting
that, then that would be very serious for the
Postmistress or Postmaster, wouldn't it?
A If it is being correctly reported, yes.
Q And it would not be the system working as it should.
A If we attribute it as a system fault, yes.
Q Let's go forward, please, just to {F/66/1}, this is Peak
0055964. It is a receipt and payments mismatch. Do you
see that? The summary?
A Yes I do.
Q Classified as non-critical, and you can see that in the
top of the blue box at -- on 13 October 2000, "PM is
doing a trial cash account and it is saying receipts and
payments don't match". Do you see that?
A I do.
Q And at the bottom of that blue box, if you go up a few
lines in that last big paragraph you will see on the
right-hand side:
"PM appears to have dealt with her losses and gains
correctly for week 28 by putting into susp account
unable to trace mismatch"; yes?
A Yes.
Q If we go over the page to page 2 please {F/66/2} in the
blue box we can see that the Regional Network Manager is
still not happy, the second blue box down, halfway down:
"RNM still not happy. His PO is closed and PM wants
to balance".
A Yes.
Q Now, this is still only being given a non-critical
priority. Why is that? Category C?
A I can only assume that whoever was looking at it didn't
see fit to actually change it.
Q What should it have been? A B?
A I would probably have classified that as B, yes.
Q And if we read on in that box you will see:
"STA advised me to call EDSC to find out how long it
would take to action and resolve a call. EDSC said they
were dealing with it now and they will speak to me asap.
Spoke to SMC. They said PM was informed incorrectly. He
was told the problem would be resolved by the end of
today but it is only C priority and is only just being
looked into".
So classifying it as a C priority rather than a B
will have an impact on how speedily it's looked into,
won't it.
A Certainly B priorities would be looked into before Cs.
It does not imply that we would deliberately wait
a period of time before looking at a C.
Q Okay. Let's look at the bottom of page 2, penultimate
box which is a yellow one, 18 October 2000. Last line
of that:
"Advised PM that third line are investigating the
mismatch problem".
See that?
A Sorry, you have lost me.
Q In the yellow box at the bottom?
A The 14.52 one?
Q Yes. That's it?
A Yes?
Q Last sentence, so second-last line on the right.
A "Advised PM that third line" -- yes. Got you. Yes.
Q "Third line are investigating the mismatch problem".
That's the sort of thing that third line support
would look into, isn't it?
A Well, generally no. If we are describing a discrepancy
here, discrepancies are a part of the operational
running of the Post Office, and it would be the NBSC who
would normally deal with that kind of thing. It would
only come to the third line support group if there was
a reason to believe it was a software fault.
Q Let's have a look -- help you out on that.
A Okay.
Q Look at page {F/66/3}. Bottom blue -- penultimate blue
box. Se what's going on, just before halfway down:
"I'm not sure how much of this is down to invalid
measures and counter measures but clearly what should
NOT have happened no matter how much the user tries, is
the system resulting in a cash account mis-balance"?
A Yes.
Q So it does appear to be a software issue, doesn't it.
A It does indeed. That is a developer putting in that
update as well. Yes.
Q So that's pretty helpful, and then if we look over the
page on page {F/66/4} and they say, in the yellow box:
"We have done the necessary paperwork for this.
Development have already corrected this particular
fault, with the opening figures and it will be fixed at
CI4".
What is CI4?
A CI4 is a release of the system.
Q Okay, great, and that is closed as, "Reconciliation
Resolved"?
A That's correct, yes.
Q Category 90?
A That's correct. Yes.
MR JUSTICE FRASER: I don't think you are going to have time
to do any more of these.
MR GREEN: I'm not going to do any more of those, my Lord,
I'm cutting it there because -- not least because the
witness accepts that he didn't go through them before he
gave his witness statement.
Just briefly, if I may, Mr Parker, in relation to --
just go back for a moment in relation to the injection
of transaction data, in your witness statement at
paragraph 22 on page 5, that's {E2/11/5} I will just be
very brief on this if I may, but your evidence to the
court was that you knew about the ability to access
remotely when you gave this witness statement.
A Yes.
Q And you knew about the ability to do so by piggy backing
rather than using the correspondence server. That's
what you told the court.
A Yes. Go on. Yes.
Q Well, is that true or not?
A It is true, yes.
Q So you did know about that when you gave your January
statement?
A I knew that we could insert transactions at the
correspondence servers, and it was my belief that that
is what we did.
Q Did you or did you not know when you made your January
statement that you could insert by piggy backing rather
than through the correspondence server?
A If by, "Piggy backing", we mean going on to the counter
and doing it from there, no, I wasn't aware at that
stage. It was only when we started to investigate in
order to provide the evidence that colleagues told me,
well, yes, we did it occasionally at the counter, and we
then investigated more to classify that.
Q Who were the colleagues who told you that?
A I think it was John Simpkins, I think.
Q Any others? Because that's only one and you said,
"Colleagues", and you say, "Colleagues", in your witness
statement as well.
A I checked it again with another one who I believe was a
gentleman named Dave Seddon and he said, "Yes, I do
remember doing that".
Q Did you check with anyone else?
A By that stage we were starting to look into classifying
it so I didn't need to check further because we were
actually producing Peak references where I could see it
being done.
Q Okay, well, the last topic, if I may, very briefly, just
to look at the back of your witness statement where you
did a table, it's at {E2/11/23}. There are three
particular things I want to ask you about. First of
all, who put this together?
A We were given a list of references and various members
of the team would analyse them and give back the
comments.
Q Who gave you the list of references?
A I think it was the legal team.
Q Okay, and who in the team analysed them and gave the
comments?
A I had a spreadsheet reflecting it but I can't remember
all the names for you. It will be --
Q Can you remember anyone?
A I remember John Simpkins, Mark Wright, Dave Seddon. I
believe there was at least one other.
Q Was there any reason why you didn't put the names in the
witness statement?
A Didn't see it as being relevant. They were all members
of my team and I rely on my team to do the technical
details.
Q Okay, and do you know where -- was it your understanding
that the comments that they put in were their own
comments or were they provided for them by someone else?
Do you know? What was your understanding?
A They were their own comments.
Q And did you check them at all or did you just accept
them on trust from them?
A I read through them but I do trust my team to get the
technical detail right.
Q Just very briefly, they comment on the issue of
transaction corrections in various places. Is that
something you know about the system for or not?
A Is that something I know about the system for? Sorry,
I don't ...
Q Did you understand how Post Office decides to issue
a TC, who does it and ...
A No, I don't.
Q Are your team familiar with that, or ...
A We are only familiar with the processing of them, not
how they are actually generated.
Q If we look -- I was going to take you through the first
few and then have a look at another one by example
because we're short of time, if we look, please, at
{E2/11/38}, now looking at that example, do you know --
you are suggesting there that a -- do you see the
response to Mr Coyne there? In the, "Response to
Mr Coyne", column?
A Got you, in the Fujitsu's comments, the first column of
those two, yes.
Q Yes. You see a REN in reversal not particularly common
transaction, prohibited later on.
A Yes.
Q Do you see that?
A I do.
Q Where has that come from? Is that a member of your
team?
A Of my team, yes.
MR JUSTICE FRASER: But you don't know, I imagine, on the
face of this, which of those gentlemen.
A I don't my Lord, no.
MR GREEN: And if we look at -- would you give them any
guidance as to how to do this or not?
A Other than getting them to read the context that the
problems were described in, no.
Q Do you know if anyone gave them any guidance?
A Not aware of it, no.
Q And was it your idea to produce the table?
A What -- in this format?
Q Yes?
A I will be honest, I can't remember. It seems like
a logical format to do things in. I'm not sure whether
I generated it or not now.
Q Is there any reason -- well, did you -- do you know
whether the team had a draft of Dr Worden's report in
front of them before they filled in these comments?
A I don't know. I don't think they did. I think we just
gave them Coyne's report for them to get the context.
MR JUSTICE FRASER: You said, "We", again.
A Sorry, I gave them it, yes.
MR GREEN: My Lord, in the circumstances I will deal with
everything else by way of submissions.
MR JUSTICE FRASER: Yes. Mr de Garr Robinson?
Re-examination by MR DE GARR ROBINSON
MR DE GARR ROBINSON: Mr Parker, there were just a few
questions. At the beginning of your cross-examination
some time was taken on the letter at {H/253/1}. Perhaps
we could look at that letter again. You will recall
that this is a letter written by WBD to Freeth's on 20
March.
A Yes.
Q Which starts by saying:
"We understand from Fujitsu that the SSC has been
carrying out further work to identify any Peaks that
show transactions being injected at the counter ..."
A That's correct. Yes.
Q You have seen that letter before, earlier on.
Could I ask, who is it who provided this
intelligence to Post Office?
A I provided the intelligence. It was provided to me by
a member of my team.
Q I see, and were you aware or not aware or were you
involved in the process by which this further work was
done?
A I wasn't involved in it, no. A member of my team -- the
thought occurred to him that he could add some other
search terms into the work that he had done previously.
Q And so what happened? Did you then become aware --
A I did become aware. He came to me with the new data.
Q And what did you then do?
A I then informed the legal team.
Q Now -- and that then resulted in this letter. You were
asked a large number of questions which appeared to me
at least to carry with it the implication that there was
some attempt on your part to conceal the fact that this
extra work had been done. Would you care to comment on
that suggestion?
A That suggestion would be wrong. When I was aware of it
and I had a chance to actually read it I sent it on to
the legal team so that appropriate action could be
taken. I was actually quite pleased that a member of
the team had taken it upon himself to get even more
accurate data.
Q You were also asked a number of questions which I think
were based upon the implication that in amending your
witness statement, your third witness statement as you
did, again, there was an attempt to conceal from someone
the fact that this extra work had been done. Would you
care to comment on that? I'm making what was implicit
explicit. Would you care to comment on that suggestion?
A I have, at no time, attempted to conceal anything. I'm
just trying to get the right data for the court which
can be difficult sometimes when you are going back
fifteen years.
Q Thank you, Mr Parker. Just another few questions, if
you will give me a moment.
The majority of the time that was spent
cross-examining you was spent in an effort to suggest
that the spreadsheet that you put together analysing the
output of the SSC during Mr Roll's involvement and the
output of Mr Roll's during his employment by Fujitsu was
misleading or unreliable or unrepresentative. I would
just like to raise that point squarely with you to give
you an opportunity actually squarely to address the
suggestion that that is the case.
A It's not unrepresentative. We use -- although response
codes can be subjective, they are our only reasonable
way of judging our workload, and we use it for that
purpose. Since I was attempting to compare Mr Roll's
workload with the workload of the unit as a whole, I
felt that was a reasonable way of doing it.
Q It was put to you that accuracy was important. Could I
ask you to comment on the question whether you think
there has been any lack of accuracy or any particular
accuracy in the process that you attempted to do?
A I have been accurate with the data I have. I accept
that you may find a few Peaks where the response code
does not tally with the document, but when you are
talking about 220,000 Peaks I think human beings will
make those errors.
Q In relation to particular Peaks you say you could point
to a few Peaks, you were taken to a number of Peaks in
which it was suggested that the categorisation was
wrong, or the closure category was wrong.
A Yes.
Q It was suggested to you that -- I think with the
implication that you should have looked at these Peaks
before you gave your evidence. Now, by my tally, most
of the Peaks that Mr Green took you to were Peaks that
related to a period during which Mr Roll was not
employed. Do you feel it would have been appropriate
for you to look at Peaks outside that period for the
purposes of analysing -- doing the analysis that you did
in your spreadsheet?
A For the purposes of that analysis, no, and trying to --
even for that analysis period, which was 27,000 Peaks, I
couldn't possibly read all of them.
MR DE GARR ROBINSON: My Lord, I have no further questions.
Thank you Mr Parker.
MR JUSTICE FRASER: Thank you very much. Just give me one
second. I have a couple of questions.
Now, in answering these questions, if you could
avoid the first person plural --
A I understand my Lord.
MR JUSTICE FRASER: -- and also the expression, "My team",
because I find it easier if we can deal with names. You
have got on the screen {H/253/1} --
A Yes?
MR JUSTICE FRASER: -- which Mr de Garr Robinson has just
been asking you about now. Am I right that the extra
work that was being done was being done by Mr Simpkins?
A That's correct.
MR JUSTICE FRASER: Is that correct?
A That is.
MR JUSTICE FRASER: Is it the case you asked him to do that
work or you just found out he was doing that work.
A I did not ask him to. He did the original work and then
came back to me some period afterwards and said, "I have
just thought of this".
MR JUSTICE FRASER: Right. Now, when did he do that?
A I cannot be exact. It was shortly before I gave it to
the actual legal team because I would have looked at it,
read it, and then passed it on.
MR JUSTICE FRASER: Well, if we could avoid, "I would have",
I would like to know what you can remember doing and if
you can't, that's, of course, understandable. Are we
talking in the last couple of weeks or earlier than
that?
A Last couple of weeks prior to 20 March when this was
generated?
MR JUSTICE FRASER: Yes.
A Yes, it would have been in that time period.
MR JUSTICE FRASER: So it's some time -- and why want to put
words into your mouth so if you can't remember --
A Understand.
MR JUSTICE FRASER: -- it's some time in 2019?
A Oh yes. Certainly.
MR JUSTICE FRASER: After or before the start of the trial
so far as you know?
A It was after the start.
MR JUSTICE FRASER: After the start of the trial. And when
did you decide that you wanted to make corrections to
your third witness statement.
A I can't remember exactly.
MR JUSTICE FRASER: Well, after or before the start of the
trial?
A After.
MR JUSTICE FRASER: After the start of the trial?
A Yes.
MR JUSTICE FRASER: Before this week.
A Yes.
MR JUSTICE FRASER: A couple of weeks ago? Last Friday? Or
can't you remember?
A I'm sorry I can't.
MR JUSTICE FRASER: All right. Any questions arising out of
any of that? No? All right. Thank you very much
Mr Parker. You can leave the witness box.
A Thank you.
MR JUSTICE FRASER: Now, I think Mr de Garr Robinson, on the
basis of Mr Membery, that's your evidence of fact
finished. Is that right?
Now, we have to address the situation in respect of
the remaining tranche of the Horizon trial, and I do
recall that in the order that was produced the day
before yesterday I said that we would do that at
2 o'clock. Is that likely to take very long and/or can
it usefully be done now or would you like to come back?
MR GREEN: My Lord I think we might need to come back
because there are quite a few consequential pathways to
consider how they intermesh.
MR JUSTICE FRASER: All right. Would it be inconvenient to
come back at ten to two?
MR DE GARR ROBINSON: My Lord no.
MR JUSTICE FRASER: The reason for that is, and it is wholly
unconnected with this case, there is a meeting I'm
supposed to be at at the Ministry of Justice this
afternoon. It is a long meeting, it goes on for three
hours, I can say wholly neutrally they are expecting me
to be slightly late, but obviously if I could be less
late than staggeringly late then that would be useful,
so if we come back at ten to two and we will deal with
the second -- and the features, I think, are any
housekeeping, predominantly the dates for the experts
and also there is the two days of closings.
MR DE GARR ROBINSON: My Lord yes.
MR JUSTICE FRASER: Is there anything else on that --
MR DE GARR ROBINSON: My Lord there is one more point to
raise with your Lordship which is that Dr Worden has --
it has occurred to Dr Worden there is a new way of
looking at the Peaks and the OCPs, OCRs and MSCs in this
case which, in his view shed considerable light on
certain of the Horizon issues. He feels it is his duty
to inform your Lordship of that. He has already
informed Mr Coyne of that fact and it is only right that
I should bring it to your Lordship's attention.
MR JUSTICE FRASER: Thank you. I think on the same subject,
then, and given that the expert evidence isn't going to
start until the 20th, I'm also minded, unless each of
you seek to persuade me otherwise, to order another
expert's meeting anyway.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: Simply in terms of the date.
MR GREEN: My Lord, that would be convenient. What we did
was we -- solicitors and counsel and experts liaised to
find the window that everybody can do, and that is in
the -- towards the end of June.
MR JUSTICE FRASER: Well, we are going to deal with all of
that at ten to two. I have said it is starting -- are
you talking about the evidence in general?
MR GREEN: The expert evidence. Two experts.
MR JUSTICE FRASER: I have ordered that that is happening on
20 May. It's starting on 20 May. We will revisit it if
you are going to try to seek to persuade me to move that
date at ten to two but you are going to find it very
difficult. We will address that at ten to two.
(1.09 pm)
(Luncheon adjournment)
(1.50 pm)
HOUSEKEEPING
MR GREEN: My Lord, it may be the source of some confusion
last time might be because we misunderstood
your Lordship's order in the light of what your Lordship
said orally at the recusal application hearing, because
your Lordship --
MR JUSTICE FRASER: Which bit of the order?
MR GREEN: Well, there are two provisions, paragraph 9
and -- setting the dates for the expert evidence, and
paragraph 3. We had understood paragraph 3 to reflect
the fact that your Lordship had graciously accepted that
my commitments in the week prior to that would mean we
wouldn't be able to resume before that, and when we
looked at dates afterwards --
MR JUSTICE FRASER: Well, you told me that you were in the
Court of Appeal the week before that.
MR GREEN: Correct.
MR JUSTICE FRASER: So my original intention in this order
was to order that the expert evidence commenced on 13
May and that couldn't happen for the reasons you
explained on Tuesday.
MR GREEN: Precisely, we had understood that, and then
your Lordship mentioned us coming back to deal with the
relevant dates. We don't need to look at the transcript
but the -- paragraph 9, we understood as reflecting what
your Lordship had said orally to us.
MR JUSTICE FRASER: Well, you, I think -- well, two points,
Mr Green. Firstly, the Post Office Horizon issues team
weren't here at all.
MR GREEN: Precisely.
MR JUSTICE FRASER: And the recusal team had no instructions
in respect of experts' availability, etc.
MR GREEN: Exactly.
MR JUSTICE FRASER: Secondly, you sought to give me
submissions in an understandably fragmented way about
what Mr Coyne's plans were.
MR GREEN: Indeed.
MR JUSTICE FRASER: So I said, which is reflected in the
order, we will start on the 20th, I don't want to
supervise a one-sided tennis match in terms of diary, we
will deal with that when we have finished the evidence
of fact.
MR GREEN: Exactly, and so that's what --
MR JUSTICE FRASER: And you interpreted that as meaning we
are not going to have any experts until June, did you?
MR GREEN: We didn't interpret that as meaning that. We
interpreted that as the parties should go off,
conscientiously consider who is available when and come
back to the court with an informed answer which was what
I was trying to return to the court with.
MR JUSTICE FRASER: Well, bearing in mind the overriding
point which I also made on Tuesday, which is this is
a part heard trial --
MR GREEN: My Lord, yes.
MR JUSTICE FRASER: The Court of Appeal takes priority,
Supreme Court takes priority. Other than that it's part
heard, we are getting on with it.
MR GREEN: But it's difficult to do without the experts
present, so we have got --
MR JUSTICE FRASER: What do you mean, without the experts
present now or at any point after Tuesday?
MR GREEN: No, no. What we sought to do, my Lord, is find
dates the experts can attend, are able to attend,
because, for example, you know, by way of example,
Mr Coyne's in a three-week hearing at the moment on
a three-week trial.
MR JUSTICE FRASER: Well, Mr Coyne would have been giving
evidence in this trial at the moment. If the recusal
application --
MR GREEN: Going forward from the 1st --
MR JUSTICE FRASER: Can we just start from some basic
principles, all right? If the recusal application had
not been issued, Mr Coyne's evidence would have been
last week.
MR GREEN: Exactly.
MR JUSTICE FRASER: And this week Dr Worden would have been
giving evidence and I assume Mr Coyne would have been in
court to listen to his cross-examination.
MR GREEN: Exactly.
MR JUSTICE FRASER: So the fact he is in a three-week
trial --
MR GREEN: Sorry, I was looking ahead at the diary for the
period we have identified.
MR JUSTICE FRASER: But we are part heard. This is a part
heard trial.
MR GREEN: My Lord yes. I agree, and not of our making.
MR JUSTICE FRASER: No, no, I know that.
MR GREEN: That's the difficulty, because we have
obviously --
MR JUSTICE FRASER: But this trial is not now going to
embark on a jigsaw puzzle to fit around things that
other people are intending to do in the future. It is
a part heard trial.
MR GREEN: It is, and we have got some immoveable problems.
MR JUSTICE FRASER: Well that is a different issue, but none
of them, I assume, can relate to 20 May.
MR GREEN: Well they do my Lord.
MR JUSTICE FRASER: You didn't mention them to me on
Tuesday.
MR GREEN: What I understood had happened, it may be my --
I'm sure it's my fault, what I understood had happened
was your Lordship had announced a date when it was going
to resume and I noticed immediately that I was in the
Court of Appeal and your Lordship then very fairly
observed, well, actually, rather than have a tennis
match about dates, we will deal with that today.
MR JUSTICE FRASER: With one of the players not here.
MR GREEN: Exactly. So that was -- and so we thought to
help the court we must go off, carefully, find out when
the experts are and are not available, and identify any
Supreme Court or Court of Appeal cases that we have and
also one member of my team has got four weeks of
adoption leave which is not --
MR JUSTICE FRASER: I know, but both -- right, Mr Green, I'm
sorry, there has to be a balance struck between this.
You have a team with more than one counsel and so does
Mr de Garr Robinson. It might be entirely
understandably that on some of the days not all the
counsel can be available for all the days. What we need
is the cross-examining counsel, the main counsel for the
other side and the experts. That's what we need in
order to deal with the expert evidence. If we start
trying to fit together a matrix that includes the
entirety of both full teams plus all the experts'
commitments, we will still be dealing with this at the
end of 2019. That's not going to happen.
MR GREEN: My Lord, we have found a window that is possible
for everyone in June.
MR JUSTICE FRASER: Well --
MR GREEN: At the end of June, as I understand it. There
may be some difficulty with my learned friend possibly
having a holiday commitment at the end, but we have
found a window when everyone can do it, because
Ms Donnelly, for example, is the senior junior on my
team and she has got four weeks of adoption leave in May
which is --
MR JUSTICE FRASER: You don't have to go into those sorts of
details.
MR GREEN: My Lord, we are hesitant to be prejudiced on the
claimant's side by something that is not of our making.
MR JUSTICE FRASER: Well, all right.
MR GREEN: If there's no -- we will let your Lordship look
at the dates --
MR JUSTICE FRASER: I'm not going to look at the dates in
this form I'm going to come on to the dates in a moment
but that's our outline situation, is you are saying
revisit paragraph 3 and the debate that was had in front
of me by Mr Cavender and you, don't have the experts on
20 May, put it off a month and approach it that way.
That's the nub of it.
MR GREEN: Under paragraph 9 that's the --
MR JUSTICE FRASER: I'm not saying that because it's in
paragraph 3 rather than paragraph 9 I'm not going to do
it, I'm just identifying what it is you are telling me.
MR GREEN: My Lord, yes, because of difficulties with expert
availability, counsel's availability.
MR JUSTICE FRASER: In other words, treat it as if it is not
a part trial is what it comes down to.
MR GREEN: No my Lord because we are excluding things that
are not in the Supreme Court or the Court of Appeal, so
with respect, I'm trying to comply with what
your Lordship has said, and so we are just looking only
at experts' availability and trials to which we are
committed in the Court of Appeal or above, so that is
the only -- I'm not trying to treat it as if it is not
a part heard trial at all.
MR JUSTICE FRASER: All I think that that can be interpreted
as is as follows; approaching it as though it is expert
availability not taking account that it's part heard.
Because the fact an expert is doing X, Y or Z, if he is
in a part heard trial he should be dealing with his
evidence in the part heard trial, should he not, as
a higher priority? Neither of them can be in the Court
of Appeal or the Supreme Court because those courts
adopt hear evidence.
MR GREEN: No. I mean, Mr Coyne is on his son's 21st
birthday holiday abroad between 22 May and 29 May.
MR JUSTICE FRASER: Right. Well, okay. Those are your
outlines. I'm going to hear from Mr de Garr Robinson.
MR GREEN: I've got various Supreme Court issues later.
MR JUSTICE FRASER: Right. Mr de Garr Robinson? Admittedly
you weren't here on Tuesday but I imagine --
MR DE GARR ROBINSON: I've read the transcript and in
fairness to my learned friend I did read the transcript
as containing an indication by your Lordship that the
commencement date would be -- you indicated 20 May, but
my understanding from the transcript was there would
then be a full debate about that today, but that is
a welcome piece of agreement between my learned friend
and myself.
My Lord, my concern -- I do not protest that my
expert is unavailable on 20 May. One of my juniors is
briefed on something else, but I don't complain about
that either, it's not the Court of Appeal or the Supreme
Court. My Lord, one issue I do pray in aid, however, is
that if Mr Coyne is cross-examined on 20 May there will
then be something like ten days' gap between the
completion of his evidence, in fact more than ten days,
and the commencement of Dr Worden's cross-examination.
My Lord, that gives my learned friend a material
advantage because -- particularly in a complicated case
of this sort, it will be a real advantage to have ten or
twelve days to meticulously plan a cross-examination
based on answers given in cross-examination the week
before. My Lord, I'm anxious about that, and I would
invite your Lordship not to split up the experts in that
way, but as a matter of simple fairness, to have the two
experts giving evidence back-to-back, and I would
therefore suggest, respectfully, and of course it is
a matter entirely for your Lordship, I do entirely
acknowledge that we are part heard in a trial, but I
would respectfully suggest that the cross-examination
should start at the beginning of the following term.
MR JUSTICE FRASER: Well, what Mr Green has told me means
that Mr Coyne's examination -- cross-examination --
couldn't be done in the week of the 20th because it
sounds from what he told me as if there is only two days
that week available before Mr Coyne is going off to do
whatever it is he is doing, and you are entitled to four
days.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: So he would not have access to his
expert at all.
MR DE GARR ROBINSON: That's when I'm supposed to be
cross-examining him. I'm not making my learned friend's
submissions. If your Lordship directs that the hearing
resume on 20 May I apprehend that Mr Coyne will attend
for cross-examination. I might be wrong about that, but
my simple submission to your Lordship is, as a matter of
simple fairness to both parties, your Lordship should
arrive at a period where the experts are giving evidence
back-to-back.
MR JUSTICE FRASER: And that period, so far as you are
concerned --
MR DE GARR ROBINSON: My Lord, I would suggest that it
starts -- Mr Coyne's cross-examination starts on
Tuesday, 4 June. That would involve your Lordship
sitting for four days, that would involve your Lordship
sitting on the Friday of that week.
MR JUSTICE FRASER: Well, that's not an issue.
MR DE GARR ROBINSON: And then Dr Worden giving evidence on
the --
MR JUSTICE FRASER: So that is a four-day week because it is
vacation on the Monday.
MR DE GARR ROBINSON: Because term starts on the Tuesday.
My Lord, Dr Worden giving evidence on 10 June for,
I think, three days, I apprehend.
MR JUSTICE FRASER: Well, it was three with a possibility of
four because I proffered parity on number of days and
Mr Green hadn't decided.
MR DE GARR ROBINSON: And then, my Lord, I would
respectfully suggest that it makes sense from bitter
experience, it makes sense to have a week off to allow
the closing submissions to be properly formulated, and
then have oral submissions the week following, the
week -- that would be the week beginning 24 June.
MR JUSTICE FRASER: Just remind me -- that was going to be
a day each?
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: So that is your projected suggested
timetable.
MR DE GARR ROBINSON: My Lord yes. It may accommodate
Mr Coyne's problems as well, but as I say that is
a matter for my learned friend, not for me.
MR JUSTICE FRASER: All right. Just give me a second.
Yes. All right. Mr Green?
MR GREEN: My Lord, the only difficulty with that, there are
two points, Mr Coyne's in a trial on 11 June for three
days which will try and have to get adjourned or --
MR JUSTICE FRASER: Well, in terms of --
MR GREEN: -- because it is a part heard trial.
MR JUSTICE FRASER: In a way I don't want to sound grand
about this, but those sorts of problems are issues in
that other trial. They can't be issues for us.
MR GREEN: I understand my Lord.
MR JUSTICE FRASER: Or for me. It's not because I'm trying
to throw my toys out of the pram and assume some
superior position, but -- is that a High Court trial?
MR GREEN: I don't know. It is in Newcastle so --
MR JUSTICE FRASER: Well, so it can't -- well, district
registry maximum. Okay.
MR GREEN: My Lord, I'm in the Supreme Court in the middle
week that my learned friend wants us to be preparing our
submissions.
MR JUSTICE FRASER: Well, I have got something to say about
submissions anyway in a minute but you're int he Supreme
Court the week of the 17th?
MR GREEN: Exactly, and so if we were able to have a time
when I could devote time to the case that would be
fairer.
MR JUSTICE FRASER: How many days are you in the Supreme
Court?
MR GREEN: I am in the Supreme Court on the Wednesday and
Thursday.
MR JUSTICE FRASER: Wednesday the 19th and Thursday the
20th?
MR GREEN: Correct. I have got one day after that.
A Friday.
MR JUSTICE FRASER: Yes. I understand. All right. But
other than Mr Coyne's appointment in Newcastle, so far
as the evidence is concerned, Mr de Garr Robinson's
suggestion will work?
MR GREEN: My Lord yes.
MR JUSTICE FRASER: Well, let's put closing submissions to
one side. The important thing -- well, there is a range
of important things, but in order; the first most
important thing is to complete the evidence.
MR GREEN: Indeed.
MR JUSTICE FRASER: Are you going to require or want four
days or are you still three possibly four?
MR GREEN: Well my Lord, given that on this plan we are
going to sit on the Friday --
MR JUSTICE FRASER: Yes?
MR GREEN: -- if we were able to sit on the Tuesday,
Wednesday, Thursday I would complete it in three.
MR JUSTICE FRASER: Right.
MR GREEN: Just because that extra time may allow us to
narrow what we have to challenge.
MR JUSTICE FRASER: That is understood. Right. Well, I'm
going to deal with evidence first and then I'm going to
come on to closing submissions.
Paragraph -- can someone remind me of today's date?
Is it the 11th? Okay. So unlike the order of the other
day I would like some one of the counsel to draw this up
and agree the wording. Paragraph 3 of my order of 9
April is varied so that the expert evidence is to
commence on 4 June 2019 with Mr Coyne's evidence to be
between 4 and 7 June inclusive and Dr Worden to be
called on 11 June and his evidence to be between 11 and
13 June inclusive. Does that deal with the actual
dates?
So that's expert evidence.
Then the next issue is really closing submissions.
Now, Mr de Garr Robinson, you suggested a week which is
sensible. You have heard what Mr Green is doing that
week. It seems to me closing submissions could be
a little bit later than that. I don't know if you have
anything that you want to say about that.
MR GREEN: My Lord, I would have no objections to having
more time for written closings. The closings might be
shorter as a result.
MR JUSTICE FRASER: Yes. Well, that would be beneficial.
So then if we move your suggestion a week and we could
have closings on 1 and 2 July. One day each.
Mr Green, is that -- so that's moved it a week to
reflect your Supreme Court activity.
MR GREEN: I'm grateful my Lord. Very grateful for that.
MR JUSTICE FRASER: Right. So are those dates all now quite
clear? Good. Right. So that's evidence.
MR GREEN: Would your Lordship want the closing submissions
in on the Thursday before? Or the Friday.
MR JUSTICE FRASER: No, I think the Thursday. Thank you
very much for mentioning that. In fact, let's say in
view of how long you will have had them, let's say noon
on the Thursday. Noon on Thursday the 22nd.
MR GREEN: My Lord, would it be possible to have the
following week because we are coming back on the 1st
and --
MR JUSTICE FRASER: Oh I'm sorry, did I say 22nd? I meant
27th. All right?
So that deals with evidence, that deals with
closings.
MR DE GARR ROBINSON: My Lord yes.
MR JUSTICE FRASER: Mr de Garr Robinson?
MR DE GARR ROBINSON: My Lord, I need to address
your Lordship on -- it is a matter of some awkwardness
actually. Dr Worden has recently realised that there is
a new way of looking at the evidence in this case which,
in his view, could greatly assist your Lordship, assist
the court, in deciding Horizon issues 1, 12 and 13.
This approach involves focusing on those Peaks OCRs,
OCPs and MSCs which actually mention the FAD codes of
one or more of the claimant branches.
Just to explain, when Fujitsu did any authorised
remote handling of data, to put it neutrally, which
might affect branch accounts, they raised an OCP, OCR or
MSC whose text was likely to include the six digit FAD
code of the relevant branch. So it's therefore possible
to search all the OCPs, OCRs and MFCs with a view to
finding all of those which mention the claimant branches
during the relevant claimant's period of tenure. This
search yields a limited number of OCPs, OCRs and MSCs,
and it's therefore possible to assess expert issues 12
and 13, which is how often was remote access facility
exercised and what effect did it have. It is possible
to assess those questions as they affect the claimants
by examining that much smaller document set. My Lord,
that is the first exercise that he would like to
undertake, and indeed he has embarked work on -- I think
this week he has embarked work on that.
Second, if a detected bug affected the accounts of
any branch the Peak relating to that bug was likely to
mention that branch's FAD code. Typically, it will
also -- it may also mention a sum of money. It's
therefore possible to search all the Peaks in the same
way that I have just outlined, looking for Peaks which
mention any claimant's FAD code during the relevant
claimant's period of tenure, and again, this document
could shed some light on Horizon Issue 1 to which extend
is it likely that bugs have affected the relevant
branches.
Now, Dr Worden has specifically asked me to offer
his apologies to the parties and to the court that he
didn't think of this before. In fact, frankly, he is
kicking himself that he didn't do so. He believes that
he and Mr Coyne would only need a short time to consider
the relevant documents and to consider how it affects
their views on those issues. He wishes to discuss the
documents with Mr Coyne with a view to agreeing what
they do or do not show.
My Lord, in the days since the recusal application
was issued he started to consider how the new approach
affects his views. He believes on Issue 1 it allows the
parties to make a much simpler analysis of the point,
and he takes a similar view in relation to the remote
access issues. It makes, in his view, it possible for
the experts to form a view as to how often remote access
was exercised and what its likely effect was.
It is Dr Worden's view that it is his duty under CPR
Part 35 to inform the court of this change of view and
to allow the court to consider whether or not it wishes
to see it considered. That belief is based, as
your Lordship will be aware, on CPR35.3 which imposes
a duty on experts to help the court on the matters
within their expertise, whether or not they are
instructed so to do. My Lord, it's also based on
CPR35 -- I should say the practice direction CPR35,
paragraph 2.5, which requires experts to inform the
court of any change of views.
I should emphasise this -- none of this comes at the
request or instigation of my client. This has come from
Dr Worden. This is his idea. My Lord, he wishes to
discuss it with Mr Coyne in a further meeting between
the experts, but of course it's -- it's only right that
your Lordship should be aware of that. I'm not making
any application for permission to put in supplemental
expert reports --
MR JUSTICE FRASER: I don't think you have any supplemental
experts' reports to apply for permission for, are you?
MR DE GARR ROBINSON: I'm not making any kind of
application, I'm simply sharing with your Lordship the
view that has been expressed to me by Dr Worden.
MR JUSTICE FRASER: But in order to -- I'm grateful for that
and that's noted, but in order to make an application to
put in supplementary expert evidence from Dr Worden you
would need to have a supplementary expert report from
Dr Worden, wouldn't you. You can't apply for permission
in the abstract.
MR DE GARR ROBINSON: Well my Lord I'm conscious of
your Lordship's own judgment in the Imperial Chemical
Industries case against Merrill Technology and
your Lordship will have a much clearer recollection than
I do of the criticisms you levelled at one of the
experts for going off and doing an exercise on the basis
of documents that he had, and for not engaging in
a collaborative process with the other expert with
a view to them jointly coming to a view as to whether it
was beneficial and what it did or did not show. I have
brought a copy of that case here, but I apprehend
your Lordship doesn't need to be reminded of it.
My Lord, in those circumstances your Lordship may
think it appropriate for that procedure, the procedure
that your Lordship described in paragraph 158 of that
judgment to be followed in this case, but as I say I'm
not making any application to your Lordship.
MR JUSTICE FRASER: No, no. I understand entirely the
difference between a collaborative exercise explored by
experts either jointly or singly, and a supplementary
expert's report but I go back to the point that I have
just mentioned. In order to apply for permission to
adduce extra expert evidence you would have to have
a draft of the report for which you would be seeking
permission, wouldn't you?
MR DE GARR ROBINSON: My Lord not necessarily.
MR JUSTICE FRASER: You don't think so?
MR DE GARR ROBINSON: My Lord, I would submit not. It would
depend on the circumstances. Often one would have such
a report. I'm conscious that in the ICI case
your Lordship cited as a reason for not giving the
relevant party permission to put in a report which they
had prepared, that the experts hadn't gone through that
collaborative process and I'm quite anxious to ensure
that my expert doesn't fall into the same trap, if I can
put it that way.
MR JUSTICE FRASER: Well, depending on whichever point one
reaches in terms of you actually make an application to
put in a supplementary expert's report, that application
will be dealt with as and when it's made, so I'm not
dealing with that either positively or negatively at the
moment.
MR DE GARR ROBINSON: Thank you.
MR JUSTICE FRASER: What I am going to do, which I think I
explained to you just before the short adjournment, I am
going to make an order for the experts to meet again. I
am not in any way going to proscribe or insist on the
content or agenda of that meeting. It's just an order
for a further meeting. What they explore, wish to
explore, how it's done, etc, is solely a matter for
them, but I'm going to make a direction in respect of
a further meeting.
Before I do that though, Mr de Garr Robinson, is
there anything you want to add on this particular point?
MR DE GARR ROBINSON: My Lord, I don't have an application.
I simply feel it is my duty to inform your Lordship
of --
MR JUSTICE FRASER: I understand. I will just seek
observations from Mr Green.
MR GREEN: My Lord --
MR JUSTICE FRASER: If any.
MR GREEN: It's probably of the, "In any", variety. The
only observation is we are slightly concerned that this
is a -- what is proposed is a slightly different
iteration of what Dr Worden was already doing. We were
concerned he appeared to be doing in his existing
reports, which is rather than giving evidence about the
Horizon issues as formulated at CE1/1, which was
generally and not by reference to all the individual
claimants, how were these questions to be answered,
instead, to invite your Lordship basically to enter into
the sort of {C1/1/1} exercise to which such great
exception was taken, we say albeit on a flawed premise,
on the recusal application, namely to start going
through individual SubPostmasters and invite
your Lordship because FAD codes have not been included
in Peaks, to conclude, without any disclosure from the
claimant's cohort, other than the few people we have
got, that they haven't actually happened and bounce us,
and it's difficult to resist the temptation to think
that if the factual premise upon which Dr Worden's
report is based starts to fall away in factual evidence
and you suddenly get, "I have come up with a completely
new idea".
MR JUSTICE FRASER: Well, that is a different point.
MR GREEN: It is a different point but it's not one which we
welcome.
MR JUSTICE FRASER: Well, all I intend to do so far as the
experts -- and I will just tell you what the proposed
direction is in terms so you can seek to -- well, make
any observation before I actually make the order, I
intend to order that at least one further meeting be
held between the experts to seek further agreement on
the Horizon issues by 4 o'clock on 3 May, so that gives
them quite a long time to do it. That's not saying they
can only have one meeting, they might decide -- I
suppose it ought to say, and if such agreement can be
reached the production of a fifth agreed joint
statement. Do either of you have any observations on
that order? No? It seems perfectly non-controversial.
The only thing is it imposes a date but it's not a date
on the imminent horizon.
Right. So that's the experts. Anything else in
terms of directions?
MR GREEN: My Lord is there any cut-off date by which any
application for a supplemental statement should be made?
MR JUSTICE FRASER: No.
MR GREEN: No, so we will leave it open and deal with it if
it comes?
MR JUSTICE FRASER: I'm not generally persuaded cut-off
dates are a good idea. Any application will be -- any
application will be made by either side for any further
material and will be dealt with if or when they are
issued in accordance with all the principles that are
set down in the CPR.
Right. So as far as directions for resumption then,
is that everything?
MR DE GARR ROBINSON: My Lord I believe so.
MR JUSTICE FRASER: Right. There is some minor assorted
miscellany of housekeeping. Mr de Garr Robinson, you
were part of the way through a redactions review.
MR DE GARR ROBINSON: My Lord I was, and this is a matter of
great embarrassment to myself. Coming back here today
I have done -- I have gone through all of the documents
except one, and there is still one outstanding and if
I had known we were coming back today then that document
would have been gone through already and I can't
apologise enough.
MR JUSTICE FRASER: And the results of the ones that you
have gone through absent that one?
MR DE GARR ROBINSON: My Lord, your Lordship will recall --
MR JUSTICE FRASER: I think you had done three.
MR DE GARR ROBINSON: One has already been released.
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: Two documents involving claims to
legal privilege, my Lord, in my judgment they are
legally privileged.
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: My Lord, there is then a series of
documents which have been redacted for confidence and
irrelevance. My Lord, in relation to those, the
approach I'm adopting will involve the unredaction, as
it were, of a number of extra passages, and in order to
make things easier for everyone to see that there isn't
any great concealment going on, what I'm currently
minded to do is to unredact most of the headings, so one
can see what is being dealt with in the parts that are
still redacted.
MR JUSTICE FRASER: Right.
MR DE GARR ROBINSON: So whether that's strictly in
accordance with the rules, I don't know, but that seems
to me to be a helpful way of shedding light on what
might otherwise be a matter for suspicion.
MR JUSTICE FRASER: All right. I tell you what I'm going to
do about this. I'm going to order, and it will go in
today's order, please, that the results of the review of
redactions exercise undertaken by leading counsel for
the Post Office in the Horizon issues trial to be
identified in a letter from WBD to Freeth by ... and
then you are going to suggest a date.
MR DE GARR ROBINSON: My Lord, seven days is ample time.
MR JUSTICE FRASER: So by noon on the 18th. That's seven
days.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: And then together with --
MR DE GARR ROBINSON: The relevant documents, insofar as --
MR JUSTICE FRASER: -- open brackets, if any, close
brackets, and then if there is any further actions or
anything that is necessary to be taken they will flow
after that.
MR DE GARR ROBINSON: My Lord yes.
MR JUSTICE FRASER: So today's order is going to have
a provision in, and it's to be a letter. All right?
MR DE GARR ROBINSON: Thank you my Lord.
MR JUSTICE FRASER: So that's an outstanding housekeeping
matter which I had on my list. Have you got any on your
list?
MR DE GARR ROBINSON: My Lord no.
MR GREEN: My Lord, there are a couple of dates which are at
large, or potentially to be fixed. Your Lordship may or
may not want to deal with them today. One is the costs
of the common issues judgment which we had suggested 8
May which was a date upon which we were going to be
coming back for this trial, and your Lordship did have
a window for it then.
MR JUSTICE FRASER: Yes. Well, because I was supposed to be
hearing closing submissions.
MR GREEN: Precisely, so we're going to suggest common
issues costs and the adjourned costs of the recusal
application, namely as to basis and payment, whether it
be summarily assessed or put off to assessment with
a payment on account. Those two costs issues --
MR JUSTICE FRASER: They need to be fixed. You want them on
the 8th?
MR GREEN: On the 8th.
MR JUSTICE FRASER: I'm minded to do it some time the week
of the 20th, to be honest.
MR GREEN: 20th of?
MR JUSTICE FRASER: May, like the 23rd. That will be time
estimate half a day, I imagine.
MR GREEN: Half a day.
MR JUSTICE FRASER: Half a day. Yes.
MR GREEN: My Lord, we can make ourselves available for
that.
MR JUSTICE FRASER: Mr de Garr Robinson? I imagine it won't
be you, it will be the other team.
MR DE GARR ROBINSON: My Lord, it won't be me and so I'm
speaking on instructions. My Lord, my primary
submission is your Lordship -- I would invite
your Lordship not to make any listing of any matters of
that sort until the appeal that will today be being
issued in relation to recusal is dealt with.
MR JUSTICE FRASER: Well, there is an application for --
permission will be known about before then, won't it.
MR DE GARR ROBINSON: I apprehended your Lordship would say
that, hence the directions you have made in relation to
the Horizon trial, and there I would simply submit that
it makes a great deal of sense to fix a time by which
point the Court of Appeal --
MR JUSTICE FRASER: Well, that's why I chose the week of the
20th. I tell you what I'm going to do. I'm going to put
liberty to apply in today's order, so that if and when
there is any developments on the front you have just
identified you can always come back.
MR DE GARR ROBINSON: Yes.
MR JUSTICE FRASER: The common issues costs won't be
affected by the recusal application, prospects in the
Court of Appeal, because that involves submissions that
I think were lodged in writing on 29 March by both sides
and the position of the Post Office was it was premature
to make any order for costs because one wouldn't know
who had won and that the Post Office had been partially
successful in any event, both of which were identified
by me in my recusal judgment as being correct, so that
position won't change, whether I'm recused or not, and
I will still have to deal with common issues costs
because they wouldn't be dealt with by a new managing
judge, they would have to be dealt with by me, but with
liberty to apply if and when the recusal application
were to have any life breathed into it by a grant of
permission to appeal, well then that date can be readily
refixed without anyone having to come back.
MR DE GARR ROBINSON: My Lord I hear what your Lordship
says. Your Lordship will understand that's not my
submission, but --
MR JUSTICE FRASER: No, no, I understand. All right. So
today's order will be that the hearing of the
application by the claimants for their costs on the
common issues, together with associated matters -- well,
actually forget, "Associated matters" -- application by
the claimants for their costs on the common issues trial
and the further order necessary on the costs recusal
application under paragraph 8 of the order of 9 April
will be dealt with on 23 May 2019, time estimate half
a day, but at the bottom of the order, please, it will
say, "Liberty to apply".
MR GREEN: My Lord then --
MR JUSTICE FRASER: Is that everything?
MR GREEN: No it isn't everything. I'm sorry.
MR JUSTICE FRASER: Is that everything on the costs?
MR GREEN: Everything on the costs, yes it is.
MR JUSTICE FRASER: Next point?
MR GREEN: And my Lord then the -- we have been obviously
slightly thrown by the intervention and what's happened,
and --
MR JUSTICE FRASER: The intervention?
MR GREEN: The recusal application.
MR JUSTICE FRASER: Oh well ...
MR GREEN: It's because we are one team responding to the
different streams coming at us, but there are directions
for round 3 --
MR JUSTICE FRASER: Yes there are.
MR GREEN: -- which start at any moment.
MR JUSTICE FRASER: Yes they do.
MR GREEN: And we are going --
MR JUSTICE FRASER: And which was set on the understanding
that this trial would be over.
MR GREEN: Precisely, and we would invite your Lordship to
vary the dates for those.
MR JUSTICE FRASER: Right. Do you want to call them up on
the common screen?
MR GREEN: Yes. It's in the -- I can tell your Lordship
what they are. {C7/39/1}. It's in the seventh CMC
order, and in terms of sort of sequential progress we
have got the -- at paragraph 4.1 {C7/39/2} we have got
the IPOCs being pleaded on 15 May and we have thereafter
got the individual defences, 17 June, 8 July.
MR JUSTICE FRASER: And you are asking for extensions to all
those dates?
MR GREEN: My Lord yes and there is a sort of slight wrinkle
in that where the round 3 issues relate to breach and/or
the deliberate concealment --
MR JUSTICE FRASER: By, "Round 3", you mean further issues I
think. We're called them, "Further issues".
MR GREEN: Sorry, further issues, relate to breach, that's
dependent on the findings your Lordship has made in the
common issues judgment, which the defendant has said
it's going to appeal.
MR JUSTICE FRASER: Yes.
MR GREEN: And there is an asymmetry of impact of costs
which are expended for the claimants. We have
a category of impact that the defendant doesn't have
which, although we don't think that appeal will be
successful, we have to be prudent in trying to manage
the --
MR JUSTICE FRASER: Understood. So what is it you are
asking?
MR GREEN: So my Lord, we would invite your Lordship to stay
the directions pending the determination --
MR JUSTICE FRASER: On the further issues trial?
MR GREEN: -- on the further issues trial, pending the
determination of permission on their common issues
appeal.
MR JUSTICE FRASER: Which has been mentioned by Lord
Grabiner but hasn't actually been issued?
MR GREEN: No, and the date for that was meant to be 16 May
and we wondered whether your Lordship might consider
bringing that forward because of the impact only --
MR JUSTICE FRASER: No, I think what I will do is I will --
how many directions are there following on from
paragraph 4 of this order?
MR GREEN: Quite a lot. The ones that are immediately
important to cover the period when permission will be
considered are effectively, I think, contained in
paragraph 4 and there is a provision for budgets on 1
July.
MR JUSTICE FRASER: Right. So what you need, really, is
that the directions in the seventh CMC order relating to
the further issues trial from paragraph 4 onwards to be
stayed --
MR GREEN: To be stayed pending the --
MR JUSTICE FRASER: -- well, to be stayed, comma, that stay
to be lifted upon seven days' notice in writing by
either party.
MR GREEN: Indeed.
MR JUSTICE FRASER: When that stay is lifted, whenever it
might be, then the court will revisit those directions.
MR GREEN: I'm most grateful my Lord.
MR JUSTICE FRASER: Because it depends when the stay --
MR GREEN: Exactly.
MR JUSTICE FRASER: There is no point me going through now
and giving a whole bunch of dates which are overtaken,
and things might happen very quickly they might not, so
I think that's what I will do.
The thing I'm not going to do at the moment, or
indeed at all but I haven't prejudged it, is change the
dates for the further issues trial.
MR GREEN: My Lord we don't --
MR JUSTICE FRASER: At the moment.
MR GREEN: Exactly. Well, we will have to see.
MR JUSTICE FRASER: But that depends what happens. It's
something of a moveable feast. Mr de Garr Robinson?
MR DE GARR ROBINSON: My Lord, the application made by my
learned friend takes me somewhat by surprise. It hasn't
been shared with my instructing solicitors before that.
MR JUSTICE FRASER: Yes.
MR DE GARR ROBINSON: So what I can say is inevitably rather
limited but my Lord I have been glancing over
frantically while my learned friend was speaking.
My Lord, in principle, the Post Office has no objection
to a stay of the sort that has been proposed. I would
only refer your Lordship to the fact that the stay ought
to include paragraph 3.4 of the order that I see on the
screen.
MR JUSTICE FRASER: Is that disclosure?
MR DE GARR ROBINSON: Yes. My Lord, that's all I can tell
your Lordship now.
MR JUSTICE FRASER: It seems to me, whatever form of words
the two of you settle, or the two groups of you settle
on in the next hour or two, the principle is that dates
that are looming upon the immediate horizon or the --
I didn't mean a pun -- dates that are looming
immediately for the further issues trial should not be
seen as having to be complied with at the moment because
they have been overtaken by events, so disclosure on
further issues, IPOCs, any of the other directions that
are supposed to be happening in May and early June
sensibly have to be relieved in some way, either by
moving them later or me just imposing a stay.
I mean, I assume that that principle seems --
MR DE GARR ROBINSON: My Lord, I entirely see the force of
that principle. As I say, my instructions are not to
oppose a direction of that sort.
MR JUSTICE FRASER: All right. So that's what I will do
then, and if it can as well -- I did say in my order say
paragraph 4, Mr de Garr Robinson has pointed out it
needs to include paragraph 3.4 which it obviously does.
If there are any other paragraphs, I think the seventh
CMC order is one of those specials that goes on for some
pages, and if there are any others in there that I have
missed, then doubtless you will sweep them up when you
have a look at it.
Right. So is that all your housekeeping?
MR GREEN: My Lord that's all our housekeeping.
MR JUSTICE FRASER: Mr de Garr Robinson, I don't think you
had anything?
MR DE GARR ROBINSON: I have nothing.
MR JUSTICE FRASER: I don't have any more.
There is a point I have to draw to your attention.
This court is no longer our court, as of now. It will,
I hope, become our court again when we come back in
June, but that can't be guaranteed. Obviously I will do
my best, and thank you all very much and thank you, in
particular, to Opus and I will see you all in June if
not before.
(2.34 pm)
(Hearing adjourned to a date to be fixed)