|RCJ ft Court of Appeal
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)."
"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."
"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  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."
"Fortman Holdings Ltd. v Modem Holdings , on the meaning of “material” in a different clause, contract and commercial context does not assist."
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.