Monday, July 29, 2019

All Roads Lead to Rome: Why the claimants think the Court of Appeal should reject the Post Office's application

RCJ ft Court of Appeal
The litigant Subpostmasters in Bates and others v Post Office have submitted a Statement of Objection to the Court of Appeal, explaining why the judge was right to rule (mostly) in the claimants' favour at the end of the first (common issues) trial and why the application to appeal the judge's findings should be rejected.

As per the Court of Appeal's instructions it is only 10 pages long, so you can read it here if you like, but it would probably help to have a copy of the Post Office's Grounds of Appeal and Skeleton Argument to hand, alongside the common issues trial judgment.

Or you could just read this blog post.

The Statement of Objection pulls no punches from the off, telling their Lordships the Post Office's amended Grounds of Appeal is in many respects similar to the points "rejected by this Court in PO’s [the Post Office's] previous recusal application."

It adds their challenges are made "without regard to the actual basis, in law and fact, of the points appealed", furthermore, the Post Office "overreaches in its criticisms of the Judge and overstates the wider significance of the Judgment, given on the particular facts and contracts in issue."

Getting into the detail

Having set its stall out, the statement becomes a list, succinctly aiming to rebut each of the Post Office's Grounds, either with reference to the relevant case law, or where the respondents think it appropriate, pointing out where they think the Post Office has made a mistake.

eg "Contrary to what PO submits or implies in its Skeleton... the Judge did not fall into error (as PO contends) by holding that “any commercial contract classified as ‘relational’ automatically includes a broad implied good faith term”: he identified the nature of the relationship, which justified both the implication of a good faith term and his conclusion that the contracts are relational. By confining relational contracts to those with such an implied term, he reached a correct conclusion – a clearer and more helpful one – disavowing any general duty of good faith in commercial contracts."

One of the key planks of the Post Office's argument is that the judge, in making his findings on 15 March, has gone rogue, unilaterally re-writing vast tracts of established contract law which could have far-reaching impact on British business. The appeal invites their Lordships to rein in this rogue judge. The respondents play this down:

"The extravagant submission that this finding will undermine contractual certainty has no foundation. The Court stated that it was of no wider application and was made with regard to the “very specific characteristics” that were necessary."

On the tenor of the judgment there's a bit of quickfire stuff in dismissive language:

"The re-heated submission that a good faith term could not be implied given other “powerful implied terms”... was rightly rejected as a technical pleading point (if a point at all)."

and:

"The suggestion that a duty of good faith, fair dealing, transparency, cooperation, and trust and confidence requires only honesty was rejected as inconsistent with the authorities."

and:

"The Judge did not imply a “broad and onerous” term. Rather, he found it required the parties to “refrain from conduct which in the relevant context would be regarded as commercially unacceptable by reasonable and honest people”, recognised as not a demanding standard."

This section concludes: "Ultimately, all roads led to Rome: the Judge reached his view both by his analysis of relational contracts and on previous free-standing contractual orthodoxy. There is no error."

Battle of the Authorities

One of the key themes of the statement of objection is that the Post Office is misrepresenting case law to suggest the judge has got things wrong.

There's a lot of: "Mid Essex Hospital Services NHS Trust v. Compass Group [2013] is not authority for the general proposition contended for by PO: it did not concern powers to suspend, but implication of a term to prevent arbitrary exercise of a power to award service failure points where the basis for doing so was contractually prescribed."

and:

"Fortman Holdings Ltd. v Modem Holdings [2001], on the meaning of “material” in a different clause, contract and commercial context does not assist."

Agent accounts

The Post Office's reliance on the idea that a Branch Trading Statement is/was an account equivalent to a formal statement of settled accounts is an important point and one both sides are still barking at. This is despite a pretty clear ruling from the judge that if there is a whiff of dispute, branch trading statements are not to be treated as settled accounts.

The Post Office has relied on branch trading statements to prosecute Subpostmasters for false accounting. In the past, if a Subpostmaster signed a branch trading statement they knew to be incorrect they were potentially on a one way ticket to ruin, even if they had done it:

a) on Post Office helpline advice
b) whilst disputing its validity
c) in order to keep trading

In the statement of objection, the litigant Subpostmasters say: "the contractual requirement to submit a Branch Trading Statement (“BTS”), by design, forced SPMs to “accept” an ‘account’ (as PO conceded at trial... there was no mechanism for disputing items on Horizon, so the ‘account’ might include disputed items and the BTS could not be regarded as an agreed or settled ‘account’ rendered by the agent."

And so in conclusion...

The statement of objection finishes:

"The appeal has no reasonable prospect of success and there is no other compelling reason for permission to be granted... Neither of PO’s reasons has any merit: the effect on 11,000 branches is not a compelling reason... and the “far-reaching effects on the English law of contract” are obviously overstated."

Their Lordships are aiming to make a decision on whether to allow some, all or none of the Post Office's application to appeal this autumn.

*************************
If you can, please help keep this crowdfunded public-interest journalism project going by chucking a few quid in the tip jar below. Contributors who give £20 or more will start receiving regular "secret" emails which have all the info and gossip about this litigation as it makes its way through the courts. Click here to see how and where your money is being spent.
Choose an amount

Speak my language

Throughout this litigation I have usually referred to the claimants in the Bates and others v Post Office High Court group litigation as "claimant Subpostmasters" or "claimants".

Ideally I'd call them the JFSA (Justice for Subpostmasters Alliance - the loose affiliation run by Alan Bates, the man with his name on the claim), but I have been politely and repeatedly reminded by the claimants' lawyers that not all claimants are members of the JFSA and not all JFSA members are claimants.

Even calling the claimants "claimant Subpostmasters" isn't strictly accurate as a small number of claimants are former Crown Post Office employees or branch assistants employed by Subpostmasters.

So the most accurate descriptor for this group is "claimants", but only at the High Court. As far as the Court of Appeal is concerned, the claimant Subpostmasters are "respondents", and very much not claimants.

Even just calling them "Subpostmasters" is problematic because it doesn't differentiate between those (largely former) Subpostmasters who are part of this litigation and those 9,000-odd Subpostmasters who are busy running their branches right now. The latter group are already being affected by the litigation and I find I'm writing about their circumstances more often. Having two distinct cohorts both called "Subpostmasters" doesn't work.

All this matters, as we're now dealing with an Appeal Court process running alongside the High Court litigation and I am going to be writing about as much of it as I can.

For those of you tempted to give up here, you have my sympathy.  For those who wish to soldier on, I might see how calling the claimants/respondents "litigant Subpostmasters" feels, but I suspect I will flip between "respondent Subpostmasters", "claimant Subpostmasters" or just revert to "claimants" depending on the context.

And they wonder why this story isn't gaining traction...
*************************
Choose an amount

Court of Appeal: Respondents' Statement of Objection

The respondents' statement of objection was filed on 12 July 2019 in response to the Post Office's application to the Court of Appeal to appeal the common issues judgment, which was handed down on 15 March 2019.

You can read the statement of objection here on scribd or embedded below:
*****************************
Choose an amount

CMC transcript 23 July 2019

There was a brief Case Management Conference (CMC) on Tuesday 23 July 2019, which mapped out the journey to the third trial in the Bates and others v Post Office litigation.

The third trial, which, in the light of what happened at the CMC will likely be known as the quantum trial, will take place on 2 March 2020.

You can read my summary of what happened in court here, or fill your boots with the (unperfected) transcript below:

                                        Tuesday, 23rd July 2019
   (2.00 pm)
                            Discussion
   MR JUSTICE FRASER:  Mr Green.
   MR GREEN:  May it please your Lordship, I hope that the
       communication reached your Lordship this morning.
   MR JUSTICE FRASER:  Is that the one from Mr Warwick?
   MR GREEN:  Indeed.  About where parties got to subject of
       course to the court's views.
           Very briefly, having looked at the practicalities
       clearly of dealing with further issue 1 and further
       issue 2 --
   MR JUSTICE FRASER:  Do you mean further issue 2 as amended?
   MR GREEN:  No, the original.  The parties were seeking to
       reach agreement on that quite a long time before we
       proposed the expanded further issue 2.  And his Lordship
       knows further issue 2 was originally:
           "In any case where a claimant's contract's
       termination may be determined to have involved a breach
       of duty by Post Office, what is the correct measure of
       loss?"
           That was on termination only.  And what we have
       proposed which is now agreed in principle by the Post
       Office, subject to your Lordship's views, and approval,
       is that that issue be expanded out effectively so that
       we plead out all the types of breaches and heads of loss
       so that the court can make the same determination of
       what is the head of loss recoverable in principle as
       claimed.  And if so, what's the correct measure of loss
       across all the losses.  Because obviously the loss issue
       affects every single claimant.
   MR JUSTICE FRASER:  When you say across all losses, do you
       mean across all different heads of loss?
   MR GREEN:  Across all different heads of losses, correct.
       So it won't involve any accountancy experts or anything
       like that to value precisely what the loss is, but to
       say this type of loss claimed on this basis, so that
       your Lordship can decide whether or not that type of
       loss is recoverable in principle and, if so, what the
       correct measure of such loss is.  So that we don't just
       have that outcome from the termination point alone, but
       we have it across the piece.
           Not least because that would be much more useful to
       the parties -- even in preparing to deal with that
       issue, that would be much more useful for the parties in
       identifying what the financial value of the claim is,
       which is a matter which the Post Office have been saying
       they are concerned to understand better.
   MR JUSTICE FRASER:  I understand that up to a point.  I am
       looking at paragraph 4 of your -- there's no criticism
       if there isn't one available, but is there a new draft
       order that reflects this morning's agreement?
   MR GREEN:  My Lord, there's our proposed draft which was
       with --
   MR JUSTICE FRASER:  No, I have got all the proposed drafts
       that were lodged originally, but I understood the
       position as of this morning had changed.
   MR GREEN:  There is a draft from my learned friend which
       reflects agreement in principle but differs on timings.
   MR JUSTICE FRASER:  Is that the one that was appended to
       your skeleton?
   MR DRAPER:  It is not, my Lord.  It is as of today.
   MR JUSTICE FRASER:  If you could just hand that up.
   MR DRAPER:  Of course.
   MR JUSTICE FRASER:  Thank you very much.  (Handed)
           So this document is the current state of play as of
       now; is that right?
   MR DRAPER:  This is Post Office's preferred order on the
       basis of the claimants' proposal that we accept, though
       we differ as to the detail of how to implement the
       issue 2 trial.
   MR JUSTICE FRASER:  You are still seeking the stay -- I will
       just explore this for a couple of minutes with you,
       Mr Draper, before I come back to you.
   MR DRAPER:  Yes.
   MR JUSTICE FRASER:  Just give me a moment to look at this
       because originally I think your proposal was rather --
       well, it wanted the stay lifting immediately; is that
       right?
   MR DRAPER:  That is right.
   MR JUSTICE FRASER:  Does that remain the case?
   MR DRAPER:  It does in large extent.  I mean, it is sort of
       a matter of --
   MR JUSTICE FRASER:  Or is that just a matter of nuance based
       on the dates?
   MR DRAPER:  Yes, varying or lifting the stay in either order
       is practically the same effect.  It provides at
       paragraph 17 that the stay is lifted to the extent
       provided in this order.  So it effectively follows my
       learned friend's order in that respect.
   MR JUSTICE FRASER:  All right.  Just give me a second and
       I will have a look.
   MR DRAPER:  Of course.  (Pause)
   MR JUSTICE FRASER:  Thank you very much, Mr Draper.  I will
       come back to you on some of the points of detail after
       I have heard Mr Green.
           So you have seen this.
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  In terms of shape and principle going
       forward the parties are agreed subject to my approval
       about the nature of the issues?
   MR GREEN:  Precisely, which are those in the expanded issue
       of what was issue 2.
   MR JUSTICE FRASER:  Well, let's use Mr Draper's draft as
       a sort of benchmark.  This has determining further
       issue 2 in his paragraph 3 in the next trial tranche,
       doesn't it?
   MR GREEN:  My Lord, the parties are basically substantively
       agreed down to the end of paragraph 3 on the two orders.
   MR JUSTICE FRASER:  Well, what's happening to further
       issue 1, then, is this.
   MR GREEN:  My Lord our proposal in relation to that -- this
       is where we differ -- is that your Lordship should
       revisit how we proceed with further issue 1.
   MR JUSTICE FRASER:  When you say revisit --
   MR GREEN:  On 12 September.
   MR JUSTICE FRASER:  But there is two parts to revisiting,
       isn't there?  There is whether in principle it is going
       to be dealt with at all in the next trial and, if so,
       directions in respect of that.
   MR GREEN:  Yes, my Lord, I think the parties are agreed that
       it can't realistically be done in the next trial.
       That's the parties' view.
   MR JUSTICE FRASER:  I see.
   MR GREEN:  But what they can do is make progress in parallel
       for that and give directions because at the moment the
       stage 4 disclosure on our proposal is to be given on
       30th August and presently we have got -- if
       your Lordship has our draft order which came with our
       skeleton?
   MR JUSTICE FRASER:  I do.  Just give me a second.  I do.
   MR GREEN:  So that is the one that's got the new wording for
       further issue 2 which is agreed in the schedule to it at
       the back.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  And your Lordship will see that just comparing
       the two orders, both parties are agreed that the stage 4
       disclosure --
   MR JUSTICE FRASER:  Just give me a second, I'm so sorry.
       I knew it was here somewhere.  Right.  Yes.
   MR GREEN:  So paragraph 1, the parties are making the
       identical proposal for stage 4 disclosure by
       30th August 2019.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  And then the same for paragraph 2, and the only
       difference I think is the wording "pending further
       order" in paragraph 3 --
   MR JUSTICE FRASER:  They are just minor.
   MR GREEN:  Exactly.  Basically agreed 1 to 3, and then the
       only differences which immediately emerge are simply
       differences of date.
   MR JUSTICE FRASER:  I don't want to get into that yet.  At
       the moment I'm just looking at the point in principle.
       Well, really, that there's two points in principle and
       they each come at the opposite end of the time period in
       question.  The first is further issue 1.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  The second is what happens in the
       immediate term?
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  You are both saying further issue 1
       shouldn't be dealt with, are you?
   MR GREEN:  Not in March, but the difference between us is we
       have invited the court to keep the CMC on 18th September
       in at our paragraph 6 and --
   MR JUSTICE FRASER:  That's in order to do what?
   MR GREEN:  To take stock of the position that we are in as
       at that point because the parties have been agreed, and
       I think we may be again, that it is efficient and
       proportionate for any pleadings and issue-based
       disclosure, on the basis of the pleadings, for issue 1
       to take place in the light of the outcome of the Horizon
       issues trial/judgment.
           Your Lordship will be better placed to anticipate
       when that might become available on 12th March than
       perhaps now.
   MR JUSTICE FRASER:  You don't mean 12th March.
   MR GREEN:  I'm so sorry, 12th September.
   MR JUSTICE FRASER:  I do not think you mean the 12th either,
       do you?
   MR GREEN:  I mean 18th September.  I do apologise.
   MR JUSTICE FRASER:  At some indeterminate time in the
       future.
   MR GREEN:  At the CMC, if I can say that.
           But, my Lord, what's envisaged from our perspective
       is that there effectively be three strands of progress.
       First, effectively, a free-standing and resilient course
       of directions leading to March where we can determine
       all of the further issue 2 as expanded points, which is
       not dependent on any of the difficulties we would
       encounter on issue 1, including any interrelationship
       with the common issues judgment appeal.
           So that's absolutely resilient and won't be
       derailed, and it is going to be on assumed facts, so
       there won't be any problems with disagreements about
       disclosure upsetting the timetable.
   MR JUSTICE FRASER:  Let's get into the detail in
       a little bit.
           You mentioned three work streams.  One is further
       issue 2, one is further issue 1, which your proposal
       I think is revisit that on 18th September and keep
       an open mind.
   MR GREEN:  Precisely.  And keep an open mind, precisely.
   MR JUSTICE FRASER:  But don't make any substantive
       directions in respect of the period between now and
       18th September.
   MR GREEN:  Except that the parties agreed that stage 4 is
       going to be given on 30th August.
   MR JUSTICE FRASER:  And what is the third stream?
   MR GREEN:  And the third stream is the mediation stream
       which is happening in parallel.
   MR JUSTICE FRASER:  But that doesn't concern me at all,
       does it?
   MR GREEN:  It doesn't concern your Lordship save that
       your Lordship is fully informed that that is happening
       in parallel.
   MR JUSTICE FRASER:  That is fine, and obviously I will take
       that into account when I'm considering directions.  But
       so far as, as you put it, workstreams, that's
       a workstream for the parties, but it doesn't involve --
   MR GREEN:  But not for the court.
   MR JUSTICE FRASER:  -- the court at all.  But obviously
       I should be aware of it and you have both told me
       various things about it, both earlier in July and now.
           Right, so in outline terms then your framework is
       substantive directions in respect of expanded further
       issue 2 leading to a trial in March and do that now?
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  Come back in September, when everybody
       has got a better idea of how much of the judgment has
       been written and how long it is going to be, and address
       substantive directions for further issue 1 then.
   MR GREEN:  And/or consider how to address it, just keeping
       an open mind.
   MR JUSTICE FRASER:  In other words, don't nail one's colours
       to the mast now in respect of further issue 1 in
       March 20, one way or the other, revisit it in September?
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  The other is take account of the
       parties' agreed position and the fact that there is
       a mediation likely to take place at some point later
       this year.  Is that it?
   MR GREEN:  That is the three points.
   MR JUSTICE FRASER:  I'm going to hear Mr Draper on this
       first and then I will come back to you.
           Yes, Mr Draper.
   MR DRAPER:  It is perhaps best to start with the September
       proposal for a September CMC, my Lord.
   MR JUSTICE FRASER:  I think there is one in already, isn't
       there?
   MR GREEN:  There is.  My learned friend's suggestion is that
       it be retained for the purposes that he has just
       explained.
           If you look, my Lord, at paragraph 7 of our draft
       order, this is what Post Office proposes instead, which
       is that there be a CMC but somewhat later than
       September.  The reason for that is so that the CMC can
       come after the pleadings which your Lordship will have
       seen at paragraph 4 of the order.  And the principal
       reason for that is so that the parties can, with the
       benefit of those pleadings, look to review and refine
       the issues for trial as was envisaged under the seventh
       CMC order.
   MR JUSTICE FRASER:  When you say for trial?
   MR DRAPER:  March 2020.
   MR JUSTICE FRASER:  But if that's only done in January 2020
       that doesn't leave very long, does it?
   MR DRAPER:  I'm looking at Post Office's order, my Lord.
       For December.
   MR JUSTICE FRASER:  I do beg your pardon.  So your
       paragraph 7.  4th December, yes, you are right.  I was
       looking at the wrong one.
   MR DRAPER:  That would then come exactly a month after the
       close of pleadings on the measure of loss issue.
   MR JUSTICE FRASER:  Yes.
   MR DRAPER:  Paragraph 7.1 there, in slightly shorter
       language, effectively reflects what was in the seventh
       CMC order about reviewing and refining the issues having
       had the benefit of the pleadings.  So that can usefully
       be done after pleadings, can't realistically be done
       before.
           Having the CMC later would be more likely to have
       the benefit that my learned friend explained about us
       knowing where we are with your Lordship's judgment.
       I mean, we are --
   MR JUSTICE FRASER:  You will definitely have it by December.
   MR DRAPER:  Precisely.  He raised a question about what
       would happen in terms of permission from the
       Court of Appeal.  We would likely know that as well by
       then.
   MR JUSTICE FRASER:  I'm not sure about that because that is
       out of my hands.
   MR DRAPER:  Of course.  It is certainly more likely at least
       than 18th December.
   MR JUSTICE FRASER:  On the 18th.  But I thought you said it
       was taking place on the 4th.  Your proposal is
       4th December.
   MR DRAPER:  4th December, yes, I'm sorry.
   MR JUSTICE FRASER:  Sorry, you mean permission to appeal on
       the common issues?
   MR DRAPER:  Yes.  That would be more likely to know that by
       4th December than 18th September.
   MR JUSTICE FRASER:  What's the current state of play about
       that?  All I know about it is what the parties have told
       me in today's skeletons, but I think, the
       Court of Appeal orders having been uploaded a few days
       ago, I have seen them.  That's currently with whichever
       Lord Justice it is and the parties are just waiting for
       a decision on whether there is an oral hearing or
       whether permission is granted, or is --
   MR DRAPER:  Both of those.
   MR JUSTICE FRASER:  Both or either.
   MR DRAPER:  Yes.
   MR GREEN:  My Lord, I think there was an indication from
       Lord Justice Coulson that the Court of Appeal might
       prefer to decide it having seen the Horizon issues
       judgment.
   MR JUSTICE FRASER:  Understood.  Right.
   MR GREEN:  So there may be a --
   MR JUSTICE FRASER:  Understood, all right.
           But whatever it is, that's likely to be the autumn.
       So you want to know that outcome before a CMC is held
       for the third trial; is that right?
   MR DRAPER:  It is by no means determinative.  The first
       point I made, my Lord, is the strongest one, the one we
       actually principally rely on, which is we need it to be
       after the pleadings to serve the purpose of refining the
       issues.  I mention that advantage, if you like, as
       a side effect benefit.
   MR JUSTICE FRASER:  But when you say in your 7.1 "agreeing
       the list of issues to be determined at trial", do you
       mean issues other than expanded further issue 2?
   MR DRAPER:  No.  It would have been better, my Lord, for it
       to have been drafted using similar language to that in
       the seventh CMC order, so to say that to review and
       revise and refine the issues for trial as already
       ordered.
   MR JUSTICE FRASER:  In other words, including further
       issue 2?
   MR DRAPER:  It would only be further issue 2.
   MR JUSTICE FRASER:  Oh, the expansion of --
   MR DRAPER:  Exactly.
   MR JUSTICE FRASER:  In other words, any tweaking to
       expansion issue 2.
   MR DRAPER:  Precisely.
   MR JUSTICE FRASER:  Not whether it brings in further issue 1
       or not.
   MR DRAPER:  No.
   MR JUSTICE FRASER:  The Post Office position is: whatever
       else happens, don't proceed with further issue 1 in the
       third trial.  Is that right?
   MR DRAPER:  Yes, my Lord.
   MR JUSTICE FRASER:  And, Mr Green, your position is,
       claimants' position is: leave that matter undecided as
       at today and revisit it in September?  Is that right?
   MR GREEN:  My Lord, no, our position is also not in March,
       but revisit the progress we made to how we approach
       resolving it in September, because there will be -- if
       your Lordship, for example, were to list a trial in
       June --
   MR JUSTICE FRASER:  Of 20?
   MR GREEN:  Of 20, to resolve further issue 1, we would have
       plenty of time -- and anything else we decide -- between
       September and June 20 to ensure that all the steps for
       that could be taken without too much worry about -- or
       possibly early July.  That would definitely be likely to
       come after the resolution by the Court of Appeal of any
       issues upon which they were to grant permission, for
       example.
   MR JUSTICE FRASER:  This is your footnote 1 in your
       skeleton.
   MR GREEN:  Effectively.
   MR JUSTICE FRASER:  Basically, unless and until that's
       decided it is not sensible to embark on further issue 1.
   MR GREEN:  It isn't, because we would have to completely
       redo our pleading if there was a change.
   MR JUSTICE FRASER:  If both the parties are effectively
       agreed, although for different reasons and in different
       ways, the March 20 trial won't or shouldn't include
       further issue 1, even if that position has been reached
       by different routes of reasoning by each of you, well,
       then I'm simply faced with a choice: I either railroad
       you to do further issue 1 with the risk of huge amounts
       of wasted work on the parties' point of view, or I grasp
       the nettle now.  But that needn't be put off until
       18th September, it seems.
   MR GREEN:  My Lord, no.  We are asking you to order that
       further issue 1 not be tried in March and the only thing
       that is tried in March is the expanded version of
       further issue 2, which obviously takes in a lot more
       into than we originally had in mind.  But definitely not
       to do issue 1 in March.  And parties are agreed about
       that, subject to your Lordship's approval.
   MR JUSTICE FRASER:  Okay.  So that's Mr Draper and your
       paragraph 3, subject to slightly tweaked wording about
       pending further orders?
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  I just think paragraph 3 needs to be
       clear that the trial of further issue 1 will not take
       place in March.
   MR GREEN:  We will make that absolutely clear.
   MR JUSTICE FRASER:  That is to be done parenthetically.  It
       is not an enormous --
   MR GREEN:  No, of course.
   MR JUSTICE FRASER:  I just hadn't appreciated that.  All
       right, in principle that's further issue 1 done and
       dusted.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  So the next point is the one Mr Draper
       was addressing me on before I got sidetracked onto your
       position on further issue 1, which is should there be
       a CMC on 18th September or should it be on 4th December?
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  You want to keep 18th September, and the
       Post Office suggests it is only sensible if there are
       pleadings and they won't be available on 18th September.
       I will go back to Mr Draper on that point.
   MR GREEN:  My Lord, we are not insisting on the September
       CMC, but we did think it might be helpful to keep
       an open mind about what the likely timescales are and
       what planning could be done, have a moment earlier
       rather than later when there's the opportunity to
       consider that.
           The court and the parties may take the view it is
       not necessary when we get to September, but we thought
       that your Lordship might be in a position to say: I'm
       intending to hand down the judgment on 30th September or
       4th December, or have some view about it, which might
       enable the parties to usefully use a short hour CMC to
       consider what might be done.  But we are not wedded to
       that 18th September date.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  And that definitely happening.
   MR JUSTICE FRASER:  You are relatively neutral.
   MR GREEN:  We are pretty sanguine about it.
   MR JUSTICE FRASER:  But you can see the benefits in it?
   MR GREEN:  We can see the benefits.
   MR JUSTICE FRASER:  You can sit down, then, and I will ask
       Mr Draper to explain to me why it is better to have it
       in December rather than September.
           Mr Draper, you were in the middle of doing that when
       I interrupted to ask Mr Green various questions.  So
       fire away.
   MR DRAPER:  The logic of December and the basis on which it
       is our proposal, my Lord, is that it allows it to come
       one month after close of pleadings.  So it puts us in
       the position of being able to look at where we have got
       to on the pleadings, refine the issues, as I suggested,
       we could actually improve the wording of the order to
       make that clear.
           It would also enable us to take steps, for example,
       to see whether in light of where we have got to on the
       pleadings adjustment needs to be made to any of the
       further directions for the March 2020 trial.
           An obvious example, my Lord, is that we are agreed
       that at the moment it would be prudent to keep
       a relatively substantial listing for March 2020, bearing
       in mind the expansion of further issue 2, measure of
       loss.  But it may be that the pleadings disclose a good
       measure of common ground on these points, at which time
       it may be appropriate to shorten the listing.
   MR JUSTICE FRASER:  It is currently four weeks, just remind
       me?
   MR DRAPER:  It is currently four weeks.  I think my learned
       friend proposes that it be shortened somewhat to three.
       In my submission, at this stage that's out of caution as
       to how much time might be required.  It may be that
       there is on the pleadings more common ground than would
       otherwise be anticipated.
           Post Office isn't in a position to say because we
       essentially don't know what the claimants' case is on
       measure of loss and the particular heads.
   MR JUSTICE FRASER:  Well.  All right.
           I mean, in a way that is a minor detail whether
       I leave it at four or three at the moment.  It can
       easily be changed nearer the time.
   MR DRAPER:  I agree, my Lord.
   MR JUSTICE FRASER:  But you are saying if I look at your 4.1
       to 4.3, let that process happen.
   MR DRAPER:  Yes.
   MR JUSTICE FRASER:  Then a month after replies, have the CMC
       then.  I mean, in a way at that stage it is half CMC,
       half pre-trial review really, isn't it?
   MR DRAPER:  My Lord, yes.
   MR JUSTICE FRASER:  Not that that's a problem.
   MR DRAPER:  I ought also to have said -- forgive me -- it
       means we can usefully have had the step at stage 5 done
       before the CMC and your Lordship would be in a position
       then, at that CMC, to resolve any problems that we
       encounter between us on agreed and assumed facts.
   MR JUSTICE FRASER:  Well, the problem about that, I can see
       because that's further down in your 7.2 as well, if you
       can't agree facts, I can't impose agreement on either of
       you.  Do you mean on the wording of assumed facts?
   MR DRAPER:  The kind of thing I'm imagining is that the
       pleadings disclosed are somewhat ships in the night and
       we need help to be forced into the sort of proper scope
       of the assumed facts, what the courts need to have in
       order to reach its determinations.
   MR JUSTICE FRASER:  Mr Green?
   MR GREEN:  My Lord, what we had envisaged is --
   MR JUSTICE FRASER:  As one knows in this case what one
       envisages does not normally come to pass.
   MR GREEN:  What we would submit is appropriate and may work
       and be efficient is for the defendant not to have to
       contest the facts asserted by the claimants.  So
       Mr Bates says "I made this investment, etc, got this
       head of loss", so forth.  And for those heads of loss to
       be determined on the assumption that those facts alleged
       are true, which the defendant doesn't accept for
       a minute.
   MR JUSTICE FRASER:  In other words, assumed facts.
   MR GREEN:  Exactly.  Assumed rather than agreed.
   MR JUSTICE FRASER:  They are either agreed facts or assumed
       facts.
   MR GREEN:  Precisely, they are agreed.
   MR JUSTICE FRASER:  You don't assume an agreed fact.
   MR GREEN:  Exactly.  So the facts are assumed on the footing
       that the claimants put them forward, and the check on
       the claimants, the control, effectively, on the
       claimants is that to get the best outcome the claimants
       want to make the facts they assert as close to what will
       be likely to be proved for them, because that's the most
       useful judgment they will get from the court.
   MR JUSTICE FRASER:  Yes, go on.
   MR GREEN:  And from the defendant's side, they are not
       agreeing that those facts are correct.  They are just on
       the footing that someone did invest on this footing,
       they did it in this way, this was the basis on which
       they would terminate, and so forth.
   MR JUSTICE FRASER:  But in terms of -- I mean, this is
       a subject I was going to raise at some point later when
       we had dealt with this, but I may as well raise it now,
       and it goes to, effectively, the expansion of further
       issue 2: further issue 2 refers to heads of loss and
       their recoverability in principle.  I know it is
       difficult to do this by reference to a pleading because
       this hasn't been pleaded out yet, but what types of
       heads of loss?  Give me an example.
   MR GREEN:  So, for example, repayment of shortfalls whilst
       still an SPM, wrongfully.  Damages for harassment, for
       example.
   MR JUSTICE FRASER:  Repayment of shortfalls, understood.
       I mean, that is effectively a contractual issue.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  Damages for harassment, that's
       a tortious cause of action.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  Which requires duty, breach etc.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  And none of the judgments that are in
       play already have remotely touched on it.
   MR GREEN:  Absolutely not, but all it would be is a pure
       question of law on the Ferguson v British Gas basis of
       whether or not, in these circumstances, such damages are
       available.
   MR JUSTICE FRASER:  In principle on assumed facts.
   MR GREEN:  In principle on assumed facts.  So your Lordship
       is not being invited into any territory that is
       difficult in that respect.
   MR JUSTICE FRASER:  It is not that the territory is
       difficult, it is what we do in the building.
   MR GREEN:  Of course.
   MR JUSTICE FRASER:  It is a question of utility for the
       group litigation.
   MR GREEN:  Yes, but my Lord --
   MR JUSTICE FRASER:  All right, so that is an example.
   MR GREEN:  That is an example.
   MR JUSTICE FRASER:  That would have to be on assumed facts.
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  So it is basically legal findings on
       assumed facts.
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  All right, give me another example.
       This is not to hold you to any of this, it is just for
       the purposes of my understanding.
   MR GREEN:  Shortfalls is one, harassment is one.
   MR JUSTICE FRASER:  We have dealt with those.
   MR GREEN:  Consequences of failure to investigate.  What's
       the right measure of loss in circumstances where there
       is a failure to investigate on assumed facts?
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  Breach of the implied duty of good faith on the
       relational contract footing.  And that's something that
       doubtless the Post Office will say is novel, and so
       forth.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  Breach of other implied terms which have
       particular bite on what happens --
   MR JUSTICE FRASER:  But they are contractual though, aren't
       they?
   MR GREEN:  They are contractual, yes.  So there is a mixture
       of contractual and tortious.  I mean, harassment is
       really probably the only tortious one slightly to arise
       as we see it.  The others will be contractual.
   MR JUSTICE FRASER:  Understood.
   MR GREEN:  It is the approach to those.
   MR JUSTICE FRASER:  All right.  That gives me an idea
       because all that the documents -- I'm not being
       critical -- submitted for today refer to head of loss,
       and it wasn't necessarily clear to me what heads of loss
       one was necessarily contemplating.  Because some of the
       heads that were referred to in the generic particulars
       of claim were effectively dismissed by some of the
       findings in the common issues.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  When I found certain restricted duties
       under the contract.
   MR GREEN:  Of course.
   MR JUSTICE FRASER:  All right.  But damages for harassment
       is the tortious one and you can't necessarily --
   MR GREEN:  Yes, and there's also damages for deceit, which
       is capable of sounding in tort, obviously.
   MR JUSTICE FRASER:  Well, that is --
   MR GREEN:  It is tortious.
   MR JUSTICE FRASER:  All right, okay.  I have got your
       position on September.  But what do you say to what
       Mr Draper sort of points out by reference to his
       timetable in paragraphs 4 and 5, which is that December
       is a good time because it comes sequentially after his
       4.3 and paragraph 5?
   MR GREEN:  My Lord, because of the fact, the difference
       between us, the perhaps misunderstanding on the
       difference between agreed and assumed facts, what we
       have proposed --
   MR JUSTICE FRASER:  Misunderstanding between you two, not
       misunderstanding --
   MR GREEN:  No, not your Lordship.  But I think we were
       approaching that slightly differently.  But I'm very
       clear that we are talking about assumed facts, and
       therefore the timing that we have proposed in our
       paragraph 4, for pleadings, which is 25th October 2019,
       25th November 2019 and 9th December, to the extent that
       there is a need to agree what the assumed facts are at
       all, that for us is a bit of a footnote given our
       approach to what assumed facts are.  Paragraph 5 may not
       even be necessary at all, but to the extent it is, to be
       done by 20th December.
           So because of that difference between us we have got
       at later timetable for the pleadings.  I can tell
       your Lordship --
   MR JUSTICE FRASER:  You are only about a month apart.
   MR GREEN:  Exactly.  I have personally got, as far as
       I know, a unique difficulty leading up to 7th, 8th and
       9th October, which is I have got a part heard case which
       is part heard in the Supreme Court for which all five
       judges have reordered the listings of all other appeals
       and for which the underlying order has evaporated and
       the parties have within tasked with, after the European
       Commission tells us what they are doing at the beginning
       of September --
   MR JUSTICE FRASER:  All you have to tell me is it is
       a commitment in the Supreme Court.  But before I came in
       today it seemed as if, rather traditionally in this
       case, everyone was at daggers drawn and they don't seem
       to be quite as much at daggers drawn.
   MR GREEN:  They are not.
   MR JUSTICE FRASER:  Because I know that one party wanted the
       stay lifting instantly today and everyone to be forced
       straight back to the grindstone.
   MR GREEN:  Consensus has largely broken out.
   MR JUSTICE FRASER:  The consensus is to be encouraged.  So
       it seems therefore to me that you are both agreed
       there's going to have to be another hearing -- well,
       I would order one anyway -- another CMC in respect of
       further issue 2 at some point in order that the assumed
       facts upon which expanded further issue 2 is to be dealt
       with are i's dotted and t's crossed basically if you
       can't agree them.
           Now, that can't be done in September.
   MR GREEN:  No, we made provision for that on 14th January in
       our paragraph 8.
   MR JUSTICE FRASER:  Right.  Given that we are starting that
       trial on, I think, 2nd March, 14th January is too late.
   MR GREEN:  That date was sort of CMC/PTR, but on the basis
       of our understanding of what assumed facts would be
       there really is going to be minute scope for --
   MR JUSTICE FRASER:  If that's right, I'm not saying that
       that's overly optimistic, obviously it would be very
       good if that were the case.  But if it is not the case
       you need to know before 14th January, don't you?
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  Because that's about six weeks before
       the trial starts.
   MR GREEN:  It is.  The parties will have a pretty clear view
       after 25th November on our timetable because we will
       have the defendant's individual defences.
   MR JUSTICE FRASER:  It sounds to me as if Mr Draper's
       position of -- I'm looking where it is -- but I think it
       was 4th December, we should definitely have
       a 4th December CMC.
   MR GREEN:  My Lord, one option is to have a December CMC but
       just after the date for replies, if that were --
   MR JUSTICE FRASER:  Well, just after the date for replies
       wouldn't be in December, would it, because -- I see you
       are going off your pleading.
   MR GREEN:  Off our one, 9th December, if we had it on the
       12th.  We will know the shape of the difference of views
       from the -- there's not going to be that much in the
       reply as well.  If we serve one.
   MR JUSTICE FRASER:  Well, replies is if so advised anyway.
       You don't necessarily need --
   MR GREEN:  Exactly.  We would be perfectly content with
       4th December if that were more convenient for the court.
   MR JUSTICE FRASER:  It is not convenient for the court.
       Well, I mean, it is not being fixed by convenience to
       the court.
   MR GREEN:  No, of course.
   MR JUSTICE FRASER:  There are two reasons.  One is it gives
       enough time for everyone this side of Christmas, because
       however many sophisticated advisers each party has,
       productivity and efficiency tends to dip off in
       mid-December for obvious reasons.
           In a case of this size I think 4th December is about
       as close as one would sensibly want to put it.
   MR GREEN:  I'm grateful.
   MR JUSTICE FRASER:  We are going to come onto in a moment
       what's going to happen at that CMC, but Mr Draper's date
       of the 4th seems sensible.
           The only issue then in terms of dates is whether it
       is necessary and/or worth it and/or likely to be
       productive to have another hearing prior to
       4th December, whether it is September or whenever, to
       deal with anything else in terms of the group litigation
       generally.
           Now, I imagine you are broadly neutral about that.
   MR GREEN:  My Lord, we are.
   MR JUSTICE FRASER:  I will hear from Mr Draper then.
           Mr Draper.
   MR DRAPER:  Same position, my Lord.
   MR JUSTICE FRASER:  You are broadly neutral.
   MR DRAPER:  Nothing very interesting to say.
   MR JUSTICE FRASER:  Then this brings me to my main headline
       point to ask each of you, and I will ask Mr Green first.
       I said it late July and I also said it in judgment
       number 5: at some point cost management is going to have
       to be grappled with.
   MR GREEN:  We provided for that in paragraph 10 of our draft
       order.  So a CCMC just on cost management to be listed
       after 25th October because that date gives the parties
       the proper run-up to a CCMC after everyone gets back
       from the long vacation.
   MR JUSTICE FRASER:  Where are we?
   MR GREEN:  That's our paragraph 10, my Lord.  Under the
       heading "Costs and costs management".
   MR JUSTICE FRASER:  Now, the costs consent order of
       April 2018, can we call that up on the screen, please?
   MR GREEN:  Yes.  It may be in the common issues workspace,
       my Lord.
           My learned friend Mr Warwick is a bit of an expert
       on this so I will let him tell me where it is.
   MR JUSTICE FRASER:  Until we get to Mr Warwick finding where
       it is, if it is on there, your proposal is CCMC prior to
       4th December, some time late October onwards, to review
       the cost budgets?
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  But at the moment I do not think --
       I can't remember, and Mr Draper or Mr Warwick will
       remind me, don't cost budgets only go up to -- no, it is
       only the order goes in respect of common issues and
       Horizon issues.
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  I haven't made any orders in respect
       of --
   MR GREEN:  It is that next phase which the parties will be
       quite well-informed about.
   MR JUSTICE FRASER:  That phase being for expanded further
       issue 2.
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  All right.  So you say that should be
       late October?
   MR GREEN:  And the parties will be well placed to see --
   MR JUSTICE FRASER:  In other words, further cost management
       orders in respect of further issue 2, etc?
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  I will hear from Mr Draper.
           Right Mr Draper.  Forgive me for not being able to
       go immediately to your draft order where that's dealt
       with but do you agree that there has to be a hearing of
       that nature?
   MR DRAPER:  We agree that there has to be cost management.
       We had it in our draft order, my Lord, at paragraph 7 as
       forming part of the CMC on 4th December.
           If you turn my Lord --
   MR JUSTICE FRASER:  I have got that --
   MR DRAPER:  -- to the next page at paragraphs 12 to 14,
       those are the directions made in respect of that element
       of the CMC.
   MR JUSTICE FRASER:  But you will have incurred probably six
       or seven weeks' worth of relatively heavy costs, won't
       you, before you get to a costs management order?
   MR DRAPER:  That is right, my Lord.  There is a balance to
       be struck between knowledge of the costs and doing it so
       late that many of them will have been incurred.  So for
       that reason we don't propose separating out the cost
       management element and having it earlier, we see the
       sense in that.
   MR JUSTICE FRASER:  All right.  Well, I think that's what
       I'm going to do.  This date which I'm going to give you
       is just subject to checking when I go back to my desk
       because I don't have the full court electronic diary in
       court, but I have a pretty good idea.
           Now, Mr Green, you have said the first date after
       the 25th?
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  Because of other things that are likely
       to be happening in society generally at the end of
       October, or may be happening, I would like to -- I think
       22nd or 23rd October is a better date.
   MR GREEN:  Very good.
   MR JUSTICE FRASER:  Mr Draper, any observations on that?
   MR DRAPER:  No, my Lord.
   MR JUSTICE FRASER:  That will be for half a day.  You will
       get an email from my clerk within 30 minutes of this
       finishing just to tell you which date to put in the
       order, and that will be for the cost budgeting.
           Is there much between you on what needs to be done
       in terms of preliminary steps?  I don't think so.
   MR GREEN:  No, it is the same as before, following the same
       phase-based approach.
   MR JUSTICE FRASER:  If, therefore, we are going to have
       a hearing on 22nd or 23rd October and we're going to
       have a hearing on 4th December, it seems to me it would
       be better to put all the parties out of their misery so
       far as September is concerned because any information I
       can pass on at that hearing you can get in an email.
   MR GREEN:  Quite.
   MR JUSTICE FRASER:  And neither of you will be asking me for
       anything, I don't think.
   MR GREEN:  No.
   MR JUSTICE FRASER:  So I will vacate that CMC as well in
       this order, please.
           So then it is just, I think -- you are both agreed
       that you are going to do your stage 4 disclosure of
       further issues by 30th August.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  It is really just timetabling for
       pleadings, isn't it?
   MR GREEN:  That's it.
   MR JUSTICE FRASER:  All right.  Why don't you sit down.
       I will hear from Mr Draper, then I'll hear from you.
           Right, Mr Draper.  Timetabling for pleadings.
   MR DRAPER:  Yes, my Lord.  You will have seen from the sort
       of tenor of the submissions in relation to the original
       argument over a trial of further issues 1 and 2 that
       there was a lot of concern on this side of the court
       about putting off the pleadings to very late in the day,
       until October effectively.
           Those concerns are, my Lord, somewhat less acute if
       we are only having further issue 2.  And that's because
       it is simply less -- vastly less fact heavy, so there is
       not a concern about vast amounts of disclosure on
       witness evidence.  Nonetheless, there is no good reason
       to put it off for three months until, on my learned
       friend's suggestion, end of October before they plead in
       relation to the expanded further issue 2.
           It will have been apparent from some of the
       discussion that we are at a very early stage in
       understanding precisely what expanded further issue 2 is
       going to involve.  We will be much better informed when
       we get the claimants' pleading, and in my respectful
       submission, my Lord, this really ought not to be
       a question of why it has to be brought forward into
       September, but why it should wait until October.
           This litigation is a tight ship, my Lord, and
       putting us into stasis for two or three months is not
       the kind of litigation culture we have had thus far, and
       there is no good reason to depart from the court's
       practice in that regard.
   MR JUSTICE FRASER:  All right.  But you say that it should
       be done by the end of September or late September?
   MR DRAPER:  20th September, my Lord, is the date in the
       draft order.
   MR JUSTICE FRASER:  Mr Green?
   MR GREEN:  My Lord, it is going to put me in acute
       difficulties that I have already mentioned.
   MR JUSTICE FRASER:  You are in the Supreme Court, you have
       already told me that.  But so far as the litigation is
       concerned, the group litigation, generally.
   MR GREEN:  Well, the litigation has proceeded at pace,
       subject to being derailed, which was not the court's
       fault at all, but we respectfully say for the listing
       that has been made, there's really no good reason to put
       the claimants into difficulties when the dates that we
       have proposed are achievable and sensible.
   MR JUSTICE FRASER:  Well, the only date by which -- well,
       there are two dates now, aren't there, or two interim
       dates against which the court should work the procedural
       timetable?  One is the costs CCMC on 22nd/23rd October.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  That's not going to be affected by the
       pleadings at all.
   MR GREEN:  No.
   MR JUSTICE FRASER:  The other is the hearing on
       4th December.
   MR GREEN:  And on our timetable the defence would already
       have come in on 25th November so the parties would
       already have had pretty much the 11 days we had in
       mind --
   MR JUSTICE FRASER:  You are both expecting a month for the
       defendant to respond to the individual particulars of
       claim.
   MR GREEN:  Yes, and we think that is quite generous but
       perfectly fair.
   MR JUSTICE FRASER:  Well, I mean, Mr Draper is suggesting
       a month anyway so I doubt he wants shorter than a month.
       And I think you have got 14 days for replies and so
       does he.
   MR GREEN:  If so advised, yes.  There is no difference.
   MR JUSTICE FRASER:  Really the only difference is
       20th September on the one hand and 25th October on the
       other.
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  Is there anything you would like to add,
       Mr Draper, about that?
   MR DRAPER:  Just this, my Lord.  That the closer one pushes
       the pleading process particularly into October, one then
       has the individual defences on my learned friend's
       directions in November, we are then almost straight into
       the December CMC.  That's in circumstances, my Lord,
       where the logic of the December CMC is that one has had
       the pleadings, including the replies, and has had the
       process in paragraph 5 of my draft order, my Lord, of
       seeking to agree the assumed facts coming out of those
       pleadings.
           There is, my Lord, a short point on that, which is
       my learned friend is right to say that the assumed facts
       will be those contended by the claimants and assumed for
       the purposes of the trial.  But one can well imagine
       pleading disputes about how those facts are put and in
       particular the level of generality.
   MR JUSTICE FRASER:  I do hope not.
   MR DRAPER:  Perhaps I could take --
   MR JUSTICE FRASER:  Give me an example.
   MR DRAPER:  To take the harassment example, my Lord, that my
       learned friend mentions.  The question over harassment
       will essentially be whether the acts pleaded are
       sufficient to amount to harassment.
   MR JUSTICE FRASER:  Yes.
   MR DRAPER:  There is, unlike most of the other issues on
       loss, some pleading on this, and Post Office has
       essentially said the acts that you complain of are by
       their nature not harassment.  They are ordinary
       commercial interactions.
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  They are the ordinary pursuit of commercial
       debts, for example.  So the claimants will have to
       identify, in my submission, something about the conduct
       that by type puts it over the line into harassment.
   MR JUSTICE FRASER:  In order to succeed?
   MR DRAPER:  Yes.  And in order to disclose a sufficiently
       clear legal point that it can be resolved in a useful
       way for the group.  If, for example, they just plead
       a number of acts and don't say what it is about those
       acts that makes them capable of amounting to harassment,
       Post Office can sensibly respond by saying: that isn't
       harassment.  But more worryingly, in terms of utility of
       this trial, it doesn't help us distinguish between
       conduct amounting to harassment and conduct not
       amounting to harassment.
   MR JUSTICE FRASER:  I entirely understand that, but for
       example, and this is just a purely hypothetical exchange
       without having looked at the pleadings on this point at
       all, following on just from what Mr Green said, if, for
       example, it consists of letters that have been sent
       which the Post Office sends in the ordinary course of
       business "Dear Mr X or Mrs Y, you owe us sums," whatever
       it is, and the Post Office, as you say, pleaded that
       those are normal commercial acts, if that's as far as it
       goes and they are normal commercial acts and one applies
       the law in the conventional way, isn't the answer rather
       obvious, what the answer to that part of further issue 2
       is going to be in respect of that claimant?
   MR DRAPER:  Yes.  So, say one -- I think there are probably
       two different hypotheses.  One is that in pleading the
       lead claims the claimants draw out points of principle
       about the nature of the conduct.  Taking your Lordship's
       example of a letter, it would be that letters of this
       kind, however one defines "of this kind" --
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  -- are capable of amounting to harassment.
           So the kind of dispute that I imagine may arise, and
       I hope it doesn't, is whether the claimants have pleaded
       their case in such a way that enables one to identify
       those kind of points of principle.
   MR JUSTICE FRASER:  Understood.  And they will have to do
       that in their individual Points of Claim, won't they?
       Because if they don't, they certainly -- well, I'm not
       saying certainly, because that would suggest I have
       prejudged something, but they would have difficulties in
       adding those by way of reply, wouldn't they, as
       substantive ingredients of the cause of action if they
       weren't in their particulars of claim?  So you will know
       that when you get the particulars of claim, won't you?
   MR DRAPER:  Yes, my Lord, but the process of paragraph 5 of
       trying to agree the assumed facts and, indeed, any sort
       of squabbling one has over the pleadings before that,
       all of this leading into the CMC, the purpose of that is
       to make sure that the issues are defined with sufficient
       clarity.
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  Sufficient generality/sufficient particularity,
       striking the right balance, that resolving them would be
       of utility to the group.
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  We need a clear mechanism to funnel the parties
       towards agreement or have the court resolve any issues
       of that kind.
   MR JUSTICE FRASER:  Understood.
   MR DRAPER:  That's why, in my submission, we have to have
       time for the full pleading process and the process in
       paragraph 5 to be complete before the CMC.
   MR JUSTICE FRASER:  I understand.  But you agree with me,
       I think, because it is fairly conventional that
       ingredients of the causes of action will have to be
       pleaded by them in their particulars of claim, won't
       they?
   MR DRAPER:  My Lord, yes.
   MR JUSTICE FRASER:  Thank you very much.
           This is what I'm going to do.  I'm going to adopt
       the timetable suggested by the Claimant for their
       pleadings in paragraph 4, but I'm going to add a further
       CMC, which if it is not needed it can be just be
       vacated, which is going to be on a date which will be
       notified to you, again, within 30 minutes, but it will
       be much earlier in November, which is going to be put in
       there to deal with any difficulties that the Post Office
       envisage, or the Post Office can identify on the face of
       your pleadings before they plead their defence so that
       if those sorts of problems are obvious on the face of
       your pleadings, Mr Draper can address it with me then.
       If necessary you will be ordered to do something else or
       he will be given more time.
           All right?  How you weave that into the order in
       terms of direct wording I will leave to the three of you
       because you're sensible enough to achieve it without
       difficulty, I'm sure.  And that's another date you are
       going to have to be given, but it is going to be some
       time in the early part of November.
           Right.  In terms of principle, subject to anything
       either of you have to say to try and correct me, I don't
       believe the stay can remain in place but just be lifted
       to the extent provided in the order.  An action is
       either stayed or it isn't.  I do not think it is going
       to make any difference to the procedural steps because
       you are both agreed there should be a wide range of
       detail, substantive steps in the action as of now.  But
       for some reason you seem to want the rubble of a stay
       hanging around.
   MR GREEN:  My Lord, it was only because there was quite
       a lot of procedural steps going into further issue 1.
   MR JUSTICE FRASER:  We just need to --
   MR GREEN:  Just to say -- we can vary it to say for the
       moment those --
   MR JUSTICE FRASER:  I think this order has to say that that
       seventh CMC order is superseded so far as this one is
       concerned.  But I do not think formally one can actually
       have an action that's stayed yet also make such
       a detailed directions order at the same time.
   MR GREEN:  My Lord, we will reflect that in the order.
   MR JUSTICE FRASER:  But I mean, that's just a technical
       point.
           Right, Mr Draper, you want to --
   MR DRAPER:  There's one further point.  I apprehend from my
       learned friend's submissions that we are agreed on this,
       but I want to make it clear.
           If your Lordship looks at paragraphs 15 and 16 of my
       draft order, my Lord.
   MR JUSTICE FRASER:  Yes.
   MR DRAPER:  The purpose of those paragraphs is to retain
       from the seventh CMC order, albeit with varied dates,
       the mechanism for selecting test claimants for stage 4.
       We just wanted to make sure that wasn't lost in the
       discussion.
   MR JUSTICE FRASER:  Is that in Mr Green's order as well?
   MR DRAPER:  It wasn't, my Lord.
   MR JUSTICE FRASER:  So you would like that in today's order.
   MR DRAPER:  We would.
   MR JUSTICE FRASER:  Okay, Mr Green?
   MR GREEN:  My Lord, we don't want the mechanism for stage 4
       to begin until we have got clarity on the Horizon issues
       judgment and the outcome of the common issues.
   MR JUSTICE FRASER:  Understood.
   MR GREEN:  So we thought given that there are likely to be
       other CMCs in the autumn, the sensible time to review
       the timing on that is then.
   MR JUSTICE FRASER:  Well, but if one puts a date in now,
       regardless of what the date is, if one puts a date in
       now where one is confident that you will by then know
       the Horizon issues outcome, although I can't see how
       that will affect the selection criteria but you will
       possibly know more than I do, there is no problem with
       putting it in the order now, is there?  Whether it is
       20th November or whether it is a later date, it still
       imposes a framework, doesn't it, for the action going
       forward?
   MR GREEN:  Yes, my Lord.  Just in terms of getting the
       selection criteria to fit over the -- I agree with
       your Lordship --
   MR JUSTICE FRASER:  This is for round 4 though, isn't it?
   MR GREEN:  Exactly, it's for round 4.  So it's further down
       the line, so there actually isn't an imperative to do it
       before we have got clarity on both Horizon issues and
       particularly on common issues.  So we can look at what
       the categories of people are to select who the people
       for round 4 should be on an informed footing.
           So we don't object in principle to having a date for
       that, but it could just as easily be at the beginning of
       2020 or end of --
   MR JUSTICE FRASER:  I think what has to be done is the
       question of directions and timing for the selection
       criteria has to be addressed at one of the subsequent
       CMCs that I have identified.  Each of you just tell me
       which CMC you think of the three --
   MR GREEN:  I think probably the November possibly, or the
       December.
   MR JUSTICE FRASER:  What happens if the November one isn't
       needed?
   MR GREEN:  Let's say the December one because then we will
       be able to do it with confidence.
   MR JUSTICE FRASER:  Mr Draper?
   MR DRAPER:  Our concern is essentially that this process of
       identifying selection criteria and then arguing and
       agreeing those claims that meet the criteria is quite
       a slow one.  That was anticipated in the seventh CMC
       order, and we say essentially nothing has changed.  One
       doesn't need to reinvent the wheel in relation to the
       selection process.  There's no reason to put it off
       dramatically.
           My learned friend says that they will be in a better
       position after the Horizon issue judgment.  I'm afraid
       I don't follow that.  The claimants know what the
       complaints are of the group, they are in a position to
       be able to co-operate with Post Office in order to put
       people essentially into baskets -- I don't mean that
       with any rudeness -- and say what characteristics there
       are within different subsections of the group.
   MR JUSTICE FRASER:  What's going to happen in round 4 so far
       as you are concerned?
   MR DRAPER:  Not yet been determined, my Lord.  You will be
       aware that Post Office's longstanding position is that
       once one has got through these initial stages, the most
       useful thing to do is identify fairly representative
       test claimants.  I don't mean in a strict sense, but
       claimants who are fairly similar to many other claimants
       in the type of complaint that they raise.
   MR JUSTICE FRASER:  But that won't be known by November,
       will it?  If you are right about that, and that does
       match my general understanding, how would you be able to
       do that in terms of agreeing a selection criteria or
       asking me to determine it if, for example, you have got
       permission to appeal from the Court of Appeal on the
       common issues judgment on some of the grounds only,
       possibly.
           Obviously if you get permission to appeal denied on
       everything, it is simpler.  If you get permission on
       some but not other grounds, that would make it
       difficult.  If you get permission on all of them it
       would make it more difficult.  And if you have only just
       had the Horizon issues trial judgment, depending on what
       that says, you won't necessarily know, will you?
           Mr Green, whether I make one or not is obviously
       a moot point, but he has invited factual findings on
       specific bugs, hasn't he, in the Horizon issue?
   MR DRAPER:  In relation to the claimants at that trial,
       my Lord, yes.
   MR JUSTICE FRASER:  So one of his selection criteria might,
       might potentially, I don't know and I'm not -- but might
       be done by reference to some of the detailed aspects of
       the Horizon issues' trial subject matter.
   MR DRAPER:  I appreciate that as a matter of principle it is
       possible that some selection criteria might be
       influenced by the Horizon issues judgment.  I'm not
       going to disagree with that.
           But what we are principally dealing with here is the
       factual circumstances of claim.  To give you an example,
       my Lord, it might be that one group of claimants are
       those who complain about what they say are erroneous
       transaction corrections, or to give another clear
       example those who complain about problems with lottery
       transactions.  They complain about the operation of the
       processes in that regard.
           Or there might be claimants whose essence of their
       complaint is that they were trained insufficiently so
       they made a lot of mistakes and those mistakes led to
       losses for which they were held responsible.
           Those kind of primary factual distinctions between
       the claimants don't turn on either of the judgements
       that your Lordship will have produced by the end of this
       year.  They essentially turn on what is it that these
       claimants say happened, what is the core of their
       complaint about what happened in their branch.  Those
       are, my Lord, factual matters within the claimants'
       knowledge rather than matters that are going to be
       influenced greatly by either the determination of the
       legal duties under the common issues judgment or in
       relation to essentially the reliability of Horizon.
           There is a caveat to that, my Lord.  I take your
       point that if you were, for example, to say, my Lord,
       that there was some particular bug affecting a type of
       transaction, that might assist the claimants in saying,
       well, here is a claimant who is representative because
       he is one of 50 who had a similar problem.  That can be
       envisaged.
   MR JUSTICE FRASER:  But when you said the Post Office's
       longstanding position is once one has got through the
       initial stages, the most useful thing to do is identify
       fairly representative test claimants, though not in
       a strict sense, is your submission that we have got
       through these initial stages already, then?
   MR DRAPER:  We will have done, my Lord.
   MR JUSTICE FRASER:  How, though?  What's going to happen
       between now and November that means you will have got
       through, or we, not you, the Post Office, the
       claimants --
   MR DRAPER:  I see your Lordship's point is that we haven't
       got through those stages until we have had
       your Lordship's judgment.
   MR JUSTICE FRASER:  No, my point is a rather wider one,
       which is whatever is going to happen between now and the
       point at which we agree the selection criteria, which is
       obviously an important step, I mean, could it be done
       today?  Probably not.  Do both the parties want to wait
       and see the Horizon judgment?
           You say the Post Office aren't necessarily convinced
       they need to, but the claimants say they do.  What else
       is there between now and late autumn that's going to
       happen in the litigation in terms of resolution of
       substantive issues?
   MR DRAPER:  Nothing, my Lord.
   MR JUSTICE FRASER:  In other words, we probably could do
       it now.
   MR DRAPER:  We could make a good start.  As you will see
       from the order, the agreed selection criteria, the
       filing of the agreed selection criteria doesn't take
       place on our proposal until 20th November.  Our point is
       if we have that direction now the parties can get on
       with it.
           It may well be that they can get 4/5 of the way and
       then they get the Horizon issues judgment and they can
       filter in any effect that that has on the selection
       process.  But the selection process is a long one, it
       requires essentially the claimants to inform Post Office
       about the nature of many of the claims and to argue
       about what is and is not a proper category of claimant,
       to use loose language, that process can start now.  It
       may be informed by the Horizon issues judgment but,
       my Lord, that was the logic of the seventh CMC order.
   MR JUSTICE FRASER:  The timing of everything has slipped
       because of what happened with the Horizon issues trial.
   MR DRAPER:  It did, my Lord, the timing but not the
       sequencing.
   MR JUSTICE FRASER:  No, I understand that.
   MR DRAPER:  The logic of the CMC order was never one has to
       wait for the Horizon issues judgment before getting on
       with the rest of it.
   MR JUSTICE FRASER:  No, but the logic of the seventh CMC
       order also didn't take account -- because Mr Green asked
       for a three-month stay and I would not give him one --
       didn't take account of any events of this autumn at all.
           Both parties have told me now that they have
       a mediation planned at some point, which I'm not
       interested in in the least but I have to take account of
       ordering cost proportionate steps, don't I, at a
       suitable cost-effective stage?
   MR DRAPER:  Yes, my Lord.
   MR JUSTICE FRASER:  You say it should be if not entirely
       finalised, the court needs to be in a much better
       position as at 4th December; is that right?
   MR DRAPER:  Yes, my Lord.
   MR JUSTICE FRASER:  Okay.
   MR DRAPER:  Having that deadline now means that the parties
       can make what progress they can in the coming months.
   MR JUSTICE FRASER:  All right.
           Mr Green, what do you have to say about that?
   MR GREEN:  My Lord, in a group action you never select
       claimants on the basis of general primary fact
       categories.  You always do it on a matrix of fact
       categories and legal issues to get a representative
       thing, not just because, oh, they both did something
       that sounds similar on training, one looks with
       precision to see what the greatest effect on the
       group is.
           So it is never done at that high level of generality
       ever.  And the whole point of having the common issues
       determined and the Horizon trial is so that those things
       are clarified and those stages are got through.  So with
       the benefit of that we can do it.
   MR JUSTICE FRASER:  But those, as I understand it, neither
       of that depends on the outcome of further expanded
       issue 2, does it?
   MR GREEN:  My Lord, it doesn't actually because that is
       a free-standing matrix which we can overlay over it,
       which is why we say it is the end of the year and
       address it at that point.
                              Order
   MR JUSTICE FRASER:  What I'm going to do is I'm going to
       order that each party should lodge their proposed draft
       selection criteria, or should serve it on the other
       party and lodge it with the court, seven days before the
       CMC on 4th December.
           So that this can be revisited at that point.
   MR GREEN:  I'm grateful.
   MR JUSTICE FRASER:  So that is effectively a hybrid version
       of what Mr Draper is asking me to do, but I'm not going
       to order any intermediate or intervening steps.
           I don't, from my knowledge of this case and other
       cases, see the drafting and agreeing of selection
       criteria, it shouldn't really be particularly difficult.
       It might be lengthy depending on how many criteria you
       have got, but it really shouldn't be controversial.  But
       if you each lodge your drafts, it can be revisited on
       the 4th.
           The other thing you are going to need -- you will
       tell me if you think you will not -- is a pre-trial
       review for further issues for the third trial.
   MR GREEN:  Yes.  That could be the January date that we
       proposed potentially in our draft order.
   MR JUSTICE FRASER:  That was mid-January, was it?
   MR GREEN:  I think the 14th.
   MR JUSTICE FRASER:  Mr Draper, got anything to say about
       that?
   MR DRAPER:  No problem with that.
   MR JUSTICE FRASER:  I think I will make it a week later than
       that actually because you will be here on 4th December,
       and delightful though it is to see each other I do not
       think we need to see each other every four weeks.
           So that can be 23rd January, subject again, that is
       to be confirmed in the same email about dates.
           The only other point is is there anything to be
       gained in this order from setting down the dates for
       trial number 4?
   MR GREEN:  My Lord, I think given that we have got the
       opportunity in the autumn, we would say not at this
       stage.  Much better to do it when we have got more
       information on it.
   MR JUSTICE FRASER:  Let me see what Mr Draper has to say.
           Mr Draper, do you want me to do that?
   MR DRAPER:  No, my Lord, I agree we can revisit it in the
       autumn.
   MR JUSTICE FRASER:  I still remain, and it is not going to
       last forever I am sure, I still have a relatively free
       hand in terms of doing that, so that will be -- we don't
       even know what we would be trying in trial number 4 yet.
           All right.  So there's going to be liberty to apply.
       I assume it is agreed costs in case?
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  So you are waiting for a confirmatory
       email.
   MR GREEN:  Only on two dates, I think.
   MR JUSTICE FRASER:  I think it is on more than that,
       actually.  I think it is -- this is in reverse --
   MR GREEN:  Sorry, you are right.
   MR JUSTICE FRASER:  There is a PTR which I said was going to
       be on or around 23rd January for a half a day.  That's
       January 20.  There is 4th December, which just needs
       formally checking.  There is 7th November which may or
       may not be needed.
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  And 22nd/23rd October.  Is that right,
       Mr Warwick, does that match your note?
   MR WARWICK:  My Lord, yes.
   MR JUSTICE FRASER:  So if you would draft the order.  I am
       sure between you there won't be any disagreements, but
       if in drafting it up you find there is, given the time
       of year, send an email to my clerk asap and I will fit
       you in for half an hour.
           Mr Draper, is there anything else?
   MR DRAPER:  No, my Lord.
   MR JUSTICE FRASER:  Right, thank you very much.  We should
       formally vacate, I think, 18th September as well.
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  Have a lovely summer.
   (3.12 pm)
                      (The court adjourned)