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)