Tuesday, July 9, 2019

Bates v Post Office: "There will be at least three more trials"


Would you like to know the High Court's Reasons for refusing the Post Office's application to appeal the first trial judgment? Good. I have them in my possession.

The decision to refuse the appeal was made by Sir Peter Fraser (who is also the litigation's managing judge) on 23 May 2019 in court and then handed down in longer, written form, on 17 June 2019. You can read it here.

Just so you understand some of the key terms in the Reasons you ought to know:

a) the first trial in this litigation was mysteriously known as the Common Issues trial (Disputed Issues would be more accurate)
b) the judgment applicable to that first trial is known as judgment no.3.

I don't make the rules.

The Reasons are pretty straightforward, even if you have to get to paragraph 91 before you read the point that will make the claimants' hearts sink - the judge's assertion that "there will be at least three more trials" in this litigation.

Given the third trial is not happening for at least another seven months (scheduled to start on 2 March 2020), my earlier estimate about seeing seeing some conclusions around summer next year are now starting to look silly.

What are the Reasons for refusing the appeal?

Right up front, the judge states:

"None of the Grounds of Appeal have a realistic prospect of success... nor is there any other compelling reason for the appeal to be heard."

From the Post Office's perspective, it goes downhill from there, as the judge picks apart exactly why the appeal founders:

"The oral application for permission, and the Grounds, mis-state what Judgment No.3 in fact decides.... This approach by the Post Office also leads to a great concern that the majority of the claims by the Post Office of what Judgment No.3 does, and does not, find or hold are taken either wholly out of context, mis-stated, or otherwise not correctly summarised. This was a feature of its recusal application."

Ah yes, the recusal application. Let's see what more the judge has to say about that:

"Almost all of the different Grounds stating Errors of Fact have already been ventilated by the Post Office in their unsuccessful recusal application, and have been dealt with in Judgment No.5 [which refused the recusal application] and also in the Reasons by the Court of Appeal for refusing permission to appeal in respect of that Judgment... [read my write up of that here] as a single example, the finding in Judgment No.3 that the Post Office Director Ms Van Den Bogerd sought to mislead the court is challenged as being “not open to the Judge on the evidence and/or is perverse” (paragraphs 180 to 184 of the Grounds) This is to misunderstand the function of the trial process, a judge’s ability to weigh and consider the evidence, the right of a judge to accept or reject contested evidence, and also the function of the appellate court."

So when the judge found that Post Office director Angela van den Bogerd sought to mislead the High Court under oath, we can say that really is what happened, no matter how much the Post Office would rather we couldn't, and Sir Peter hadn't.

Then, an interesting finding:

"The approach contended for by the Post Office on this appeal is to misunderstand the function of an appeal, and verges on an attempt to reargue the trial."

Either the very well-paid legal brains on the Post Office's side don't know what the function of an appeal is, or they are deliberately choosing to misunderstand what the function of an appeal is. Neither makes sense. The only logical reason I can think of is that they have a very wealthy client, backed by the government, telling them to drag this litigation out to absurd lengths in the hope the claimants run out of money, hope or oxygen.

The Common Issues

Paragraphs 17 to 77 of this 91 paragraph document are are taken up with listing, on a Common Issue by Common Issue basis, exactly how and where the appeal fails. It is littered with sentences like:

"The challenge in paragraphs 35 and 38 of the Grounds to the findings that the Post Office was not entitled to suspend and/or terminate SPMs’ [Subpostmasters] engagements “arbitrarily, irrationally or capriciously” can only logically amount to an argument by the Post Office that it was contractually entitled to act arbitrarily, irrationally and capriciously in suspending or terminating the engagement of the SPMs. Such points are not reasonably arguable."

and:

"The Post Office contends for a contractual obligation upon SPMs to train their own assistants to a higher level than the Post Office had itself trained that particular SPM. This surprising argument... has obvious and serious difficulties. Very clear words would be required to achieve such a surprising result, and there are none.... in terms of contractual construction. The NTC [Network Transformation Contract] used the express word “cascade” in Part 2 Paragraph 2.4 of the contract form. That term connotes something flowing or pouring downwards. It is difficult to construe the clause using that word in the way contended for by the Post Office, without doing violence to the actual words."

Then comes paragraph 91's punch to the claimants' collective solar plexus:

"One of the benefits of having a Managing Judge is that comment and guidance can be provided to the parties during the proceedings, which can sometimes go on for many years. There will be at least three more trials and such guidance should be adopted and followed, not challenged as errors of fact in this misconceived way." [my emphasis]

You can read the Reasons in full here.

Despite this rejection by the High Court the Post Office has applied to the Court of Appeal to appeal the common issues trial judgment. Excitingly I was given sight of the grounds and skeleton argument the Post Office sent to the Court of Appeal today. More on that shortly.

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