Monday, July 1, 2019

Horizon trial day 21: transcript

This is the unperfected transcript of Day 21 of the Horizon trial. Mr Patrick Green QC for the claimants presented his closing submission to the judge.


For every single word of what was said today, read on:

                                            Monday, 1 July 2019
   (10.35 am)
                 Closing submissions by MR GREEN
   MR JUSTICE FRASER:  Good morning.
   MR GREEN:  My Lord, I think it is me.
           The focus of the claimants' submissions will be to
       identify particular aspects of the way that Post Office
       seeks to invite the court to determine the issues
       against the background of what we hope is sort of
       reasonably detailed treatment in our closing submissions
       and to identify why we find ourselves in respectful
       disagreement with the way Post Office seeks to do that.
       And in particular, to identify to the court various
       facets of the sort of overarching theme of the way
       Post Office puts its case, which is, we respectfully
       submit, a variant of the rather one-way approach that
       was urged on the court in the Common Issues trial in
       three particular respects.
           First --
   MR JUSTICE FRASER:  Just pause.  I'm afraid I have been
       given a broken chair which does sometimes happen, but we
       have a spare.  Thank you.
   MR GREEN:  In three particular respects.  Firstly,
       Post Office effectively seeks to reframe the issues as
       they have been agreed and ordered by the court.  We
       respectfully say that is the wrong approach.  Secondly,
       on analysis, the way Post Office has sought to adduce
       its own evidence is effectively the same one-way
       ratchet, for reasons that I will explain.  And thirdly,
       the way Post Office invites the court to treat the
       evidence in the documents is also, we respectfully say,
       oddly one-way.
           And the short point, if I may, on point 2, which is
       how they called their evidence, is simply this: that as
       the court will have seen from our written closing
       submissions and our written openings, effectively,
       a common feature of much of Post Office's evidence is to
       call Ms A to talk about what Mr B either knows or has
       heard from Mr X, Ms Y and Ms Z, who are often not even
       identified.
           There has been six weeks of almost Where's Wally in
       relation to Mr Gareth Jenkins who persistently pops up
       in the source material for Post Office's evidence and
       yet has not been called.
           We respectfully say that the explanation for that is
       unsatisfactory, which we will come to.  But it is the
       effect, it is the one-way effect of the way the evidence
       has been presented to the court which is the focus of
       this submission, and that one-way effect is essentially
       this.  If you call people who stand up and put their
       name to an account of what generally the position is and
       sign a statement of truth but they happen not to know
       anything about the subject or not to know anything
       reliable about it, the court on Post Office's approach
       is presented with the following choice: (1) accept their
       evidence; (2) if they are challenged on it, they get to
       say "Well, I'm very sorry, I don't know about it".  So
       effectively Post Office seeks to be in a neutral
       position if their evidence is rejected and a positive
       position if their evidence is accepted.
           We say that is the wrong approach.  We also say that
       the explanations for the way this is done are
       underwhelming at best, and that goes to both the weight
       to be attributed to Post Office's evidence throughout
       and invites the court carefully to consider
       Post Office's approach to adducing evidence in this
       trial.
           Briefly by way of introduction on point 3, which is
       the way the Post Office invites the court to treat the
       evidence and the documents, as the court will see as we
       go through the material in a minute, there are some
       frankly astonishing invitations to the court to construe
       contemporaneous documents against what they say on their
       face and to disavow witnesses where their evidence goes
       badly.  So Mr Godeseth, yes, we shouldn't have called
       him and some of his evidence did require clarification
       or correction, which then comes in correspondence after
       he has given evidence.  We say that is an unusual
       approach at best.
           Furthermore, a narrative of what happened in the
       fact evidence that is very difficult to reconcile with
       the view of someone who was actually present during the
       trial.  I appreciate that is a fairly strong pitch to
       put it at, my Lord, and I propose to make that
       submission good in a moment.
           Can I just draw your Lordship's attention to
       something else I'm going to come onto a bit later, but
       just by way of example if your Lordship turns to
       Post Office's closing submissions at page 134 at
       paragraph 369.1 {A/6/134}, your Lordship will see:
           "The Post Office documents were not drafted with the
       benefit of the vast amount of work that has been carried
       out by the experts for this trial.  If the authors
       considered that Horizon was not a good system, they were
       wrong (although that is not even a fair summary of what
       the documents say)."
           Now, firstly there is the astonishing submission
       that Post Office's own internal admissions as to the
       shortcomings of the system by their own internal
       employees and officers and directors should be ignored
       and treated as wrong.  Secondly, there's the premise in
       that that those documents were not drafted with the
       benefit of the vast amount of the work that has been
       carried out by the experts for the trial.
           Let's throw that back to the cross-examination of
       Dr Worden who, when he was shown those documents about
       Post Office's internal concerns, hadn't even read them.
       So not only is that submission fatally flawed, but it
       actually draws to the court's attention the documents
       which Dr Worden did and did not take into account in
       forming the views that he did.  And the court will
       remember his answers in cross-examination, "Do you
       accept that that cannot be reconciled with the view that
       you formed?", and him saying "Yes".
           My Lord, I give that as just one example -- I was
       going to come to it later -- of the approach that
       Post Office invites the court to take in relation to
       even Post Office's own documents, and we will see that
       writ large.
           Before I turn to this fact and evidence and
       documents piece which is essentially those layers, 2 and
       3, can I just invite the court to consider for a moment
       the way in which the reframing of the issues has been
       done by Post Office.
   MR JUSTICE FRASER:  This is your point 1, is it?
   MR GREEN:  Point 1.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  If I could just take the court back to the
       Horizon Issues at {C1/1/1} and just take, by way of
       totemic example, issue 1.  And the issue itself says:
           "To what extent was it possible or likely for bugs,
       errors or defects of the nature alleged at [paras] 23
       ... [in the pleadings] ... to have the potential to ...
       cause apparent or alleged discrepancies or shortfalls
       relating to Subpostmasters’ branch accounts or
       transactions, or (b) undermine the reliability of
       Horizon accurately to process and to record transactions
       ..."
           Now, pausing there, there are probably three layers
       to the way in which certainly Dr Worden reframed them
       and the Post Office off the back of that seeks to
       reframe issue 1.
           The first is that Dr Worden confined his analysis on
       issue 1 by ignoring potential.  Secondly, he added
       a gloss to actual by saying that those should be
       lasting, not transient, and when your Lordship asked him
       about that, anything that was corrected ever, no matter
       how long that took, is transient on his approach.  We
       respectfully submit it is a wrong approach.
           The third wrong part of the approach adopted on
       Post Office's behalf and reflected in their closing
       submissions is the word "relating", three lines down,
       about two-thirds of the way across:
           "... discrepancies or shortfalls relating to
       Subpostmasters' branch accounts or transactions ..."
           Because what Post Office seeks to do is to say that
       it has to be in the subpostmasters' branch account.  So,
       therefore, that discounts a situation if one follows
       that to its logical conclusion where the initial figure
       on Horizon is correct but the bug causes a different
       figure in POLSAP or one of Post Office's other systems
       from which a TC might subsequently be issued.  We also
       say that's the wrong approach.
           We flagged this up in opening and we have followed
       it up -- I think it is probably quicker to go to our
       closings -- and we have identified at page {A/5/173} at
       paragraph 500 -- in relation to the contrasting expert
       approaches we submit that Mr Coyne correctly focused on
       the issues as defined in his reports and was careful not
       to draw conclusions about actual consequences where
       there was no actual evidence about them but merely to
       identify the potential for the effect that crystallised
       where the evidence lay.  Whereas, by contrast, we made
       these points, my Lord, in relation to the lasting and
       permanent matters already identified here.
           Those are expanded and treated together in the
       appendix at -- actually, while we are here can we go
       forward to 562, which is at {A/5/198}.
           This is the reframing by Dr Worden of Issue 2 which
       he formulates as:
           "Issue 2 appears to be asking - could Post Office
       have given its Subpostmasters automated support in
       Horizon, in the place of human support?"
           To which he answers no.  That isn't even
       an available reading of Issue 2), let alone one which
       ought to have been adopted by Dr Worden in that respect.
       Issue 2 is perfectly clear on its face.
           The gloss there of "in place of human support", for
       example, speaks to a theme in Dr Worden's approach which
       is then ultimately reflected to greater or lesser extent
       in Post Office's submissions of changing the issues in
       a way that favours Post Office.
           When we go back to Issue 1, if we look at the
       transcript at {Day18/156:2}, if we look at lines 2 to 6,
       your Lordship will see:
           "Question:  And you describe section 8 as addressing
       Horizon 1, yes?
           "Answer:  Yes.
           "Question:  "... the extent to which bugs in Horizon
       may have affected the Claimants' branch accounts"?
           "Answer:  Yes, I've stuck in the word "claimants"
       there."
           So there is another feature which is not a feature
       of the issue as the court defined it, and as had been
       agreed by the parties for good reason, which Dr Worden
       has feathered in.  And your Lordship will also remember
       how Mr Coyne was challenged about that and cautioned by
       my learned friend about the suggestion that interest in
       individual claimants had been rebuffed and we then saw
       the RFI response to, which was to rebuff any enquiry
       about individual claimants.
           So there is a theme of reframing the issues in a way
       that makes it harder for the claimants to succeed upon
       them and comes close, the more one reframes them, to
       a position where they are impossible for the claimants
       to win.  We see that with Dr Worden's assumptions in
       relation to the issuing of transaction corrections,
       which he says, he acknowledges, are outside the system,
       he acknowledges that he doesn't know anything about
       business processes and how they are done, and then he
       draws inferences on two important premises.
           The first premise is that even where documentary
       evidence doesn't say that a transaction correction will
       be issued and where there's no actual transaction
       correction showing it was done, he infers that it would
       be done.  And he does that -- we will come to this in
       passing in relation to the documents -- by saying where
       a KEL or a PEAK refers to a TC or error notice needing
       to be issued, he assumes that it is issued, and where it
       doesn't, he assumes that's because it is written by
       people who knew that they didn't need to mention that
       because they knew it would happen.
           So whatever the document says, it leads him to only
       one conclusion and precludes the possibility of any
       conclusion that might let in any justifiable complaint
       about that by any claimant.
           The second premise is that the TC procedure is done
       so close to perfectly that the opportunity for error is
       vanishingly small, and that's the second assumption that
       he builds in.  And then he builds all of that into his
       version of the system as defined, which conflicts with
       the definition of the system at the top of the page of
       the Horizon Issues, and from that goes on to reach his
       conclusions.  And we respectfully say that is not the
       right approach, and Mr Coyne took an approach which was
       correct in his reports in relation to the issues as
       defined.
           I will deal with the issue of robustness in relation
       to Issue 3 very briefly, reasonably briefly.  There is
       first a point of principle which is that the way --
       robustness is the Post Office's favourite issue, that's
       clear, something they insisted on and we agreed to and
       was ordered.  What it doesn't say is that the system is
       robust?  And then a second question: is it extremely
       unlikely to be the cause of shortfalls in branches?
           It was conjunctive in its formulation, it was not
       split into subparagraphs like some of the others, and we
       treated it as one issue.  And on that basis and because
       Post Office wants to conflate the word "robust", which
       is in inverted commas in the issue as defined, with
       extreme unlikelihood to be the cause of shortfalls in
       branches, that is precisely the basis upon which the
       claimants do not accept Post Office's analysis on that
       issue, because they do not accept that it is robust in
       the sense of being extremely unlikely to be the cause of
       shortfalls in branches.
           My Lord, there is an important point of drafting in
       relation to Issue 3, which is Issue 3 does not say:
       extremely unlikely to cause shortfalls in branches.  So
       it is not contemplating what proportion of 47 million
       transactions a week would have errors caused in them.
       What it actually contemplates is a situation where you
       have an identified shortfall in a branch and the
       question then is if you do have such a shortfall in
       a branch, is it extremely unlikely that Horizon is the
       cause of that shortfall in the branch?
           We respectfully say no, it is not, or not
       functionally so for the purposes of this dispute, and
       particularly not so where the type of shortfall and
       discrepancy that in reality is in issue in this case is
       the unexplainable; the one where the subpostmaster
       doesn't go "Oh yeah, that's probably Jeff remmed in too
       many stamps there, yes, I remember he was a bit
       distracted this morning" or "Oh I can see from the till
       roll something has gone wrong".  We are not talking
       about that.
           The focus of this litigation, as reflected also in
       the Common Issues trial, is on what is the situation
       where there is an unexplained shortfall that the
       subpostmaster finds it difficult to get to the
       bottom of.
           So that is the background to those two facets of
       Issue 3: robustness and extremely unlikely being part of
       one concept; and secondly, the premise is the cause of
       the shortfall in a branch.
   MR JUSTICE FRASER:  Where do I go to to find your benchmark
       definition of robustness?
   MR GREEN:  My Lord --
   MR JUSTICE FRASER:  The claimants' benchmark definition.
   MR GREEN:  We found it difficult to define other than by the
       extremely unlikelihood of causing shortfalls.  So we
       haven't got a definition that we advance as a meaningful
       and satisfactory one for the purposes of this case.  And
       save insofar as it appears to be a correlation of
       extremely unlikely to be the cause of shortfalls in
       branches.
           So that --
   MR JUSTICE FRASER:  So you are treating it as a summary term
       that includes and consists of the second part of
       Issue 3?
   MR GREEN:  That appears to be the only sensible objective
       way of construing it, we say.
           My Lord, it has never been the claimants' case that
       there weren't numerous aspects in which Horizon is
       relatively robust, and that is a point on which we
       respectfully submit Post Office's closing rather
       overshoots in the criticisms made of the position taken
       by the claimants in the reply, which I would just like
       to take your Lordship to, if I may, at paragraphs 36
       and 37, which is {C3/4/21}.
           So if we just start under "Operation of Horizon",
       A.8 heading.  34:
           "The Defendant admits that 'Horizon is not perfect'
       ... and that 'like all other IT systems, Horizon is not
       a perfect system which has never had any errors or bugs'
       ..."
   MR JUSTICE FRASER:  Which document is this?
   MR GREEN:  So this is our reply, my Lord.
   MR JUSTICE FRASER:  Your reply?
   MR GREEN:  Yes.
           35:
           "It is also uncontroversial that the volume of
       transactions effected through Horizon is very large."
           36:
           "Notwithstanding the various checks and controls
       alleged (the existence and efficacy of which are not
       admitted), the combination of Horizon's admitted
       imperfections and the volume of transactions, is
       entirely consistent with the levels of errors reflected
       in the Claimants' case: the said imperfections are
       likely to be the cause of discrepancies or apparent or
       alleged shortfalls about which the Claimants complain."
           37:
           "It is therefore denied that Horizon 'is robust and
       [...] is extremely unlikely to be the cause of losses in
       branches' (paragraph 16).  In fact, the relatively small
       chance of errors admitted by the Defendant, would be
       likely to produce the very picture reflected in the
       Claimants' case."
           Then there are observations in relation to the
       existence of money in suspense accounts and so forth.
           At paragraph 38 {C3/4/22}, the change of public
       position was then noted.  Then the clarification of the
       defendants taking to make use of the pre-action
       correspondence then follows at 39 onwards, which is
       where the defendants effectively tried to bank the
       absence of a systematic flaw across the whole of
       Horizon.
           We weren't in a position to allege that there was
       a systematic flaw affecting everybody as meaning that
       there was no claim that anyone had suffered
       a Horizon-generated shortfall, which we just wanted to
       make absolutely clear on the pleadings was not the case.
           Then at paragraph 41 {C3/4/23}:
           "As to the allegedly robust controls pleaded
       variously ..."
           41.1:
           "the Defendant's case that ..."
           Then it is set out, effectively saying:
           " ... when supplemented by the various accounting
       and cash controls applied in branches, make it very
       unlikely indeed that an error in Horizon could affect a
       Subpostmaster's financial position and go undetected'
       ..."
           We say that:
           "... implicitly accepts that Horizon is likely to be
       the cause of discrepancies or apparent or alleged
       shortfalls in branches, unless detected by Claimants."
           Then they failed to plead to any material variations
       because they only pleaded on the current version of
       Horizon as it stood at the date of defence.  So we
       didn't know what the case was there.
           Then, the defendant was put to strict proof to
       matters which lay within their knowledge but not ours at
       41.3.  And at 41.4, {C3/4/24}:
           " ... in respect of the alleged 'robust measures in
       place in Horizon ...  The Claimant denies that these
       were effective, including on the basis that two of three
       errors or bugs admitted by the Defendant (in Schedule 6
       to the Letter of Response, referred to at paragraph 56
       of the Defence) were not identified through Horizon's
       own in-built checks and balances designed to identify
       the same ..."
           Then there is a passage about the position in
       relation to the known error log, which we will come back
       to.  Just to give the court an indication of where we
       were at this stage pleadings-wise, could I go, please,
       to the generic defence at {C3/3/22}.  This is
       paragraph 50 from the previous page and it is primarily,
       at this stage, addressing the known error log.  The
       second line of that paragraph says --
   MR JUSTICE FRASER:  Which paragraph?
   MR GREEN:  (4).  I'm so sorry, I didn't say that.  50(4),
       which is on {C3/3/22}, the second line of that
       paragraph:
           "To the best of Post Office's information and
       belief, the Known Error Log is a knowledge base document
       used by Fujitsu which explains how to deal with, or work
       around, minor issues that can sometimes arise in Horizon
       for which (often because of their triviality)
       system-wide fixes have not been developed and
       implemented.  It is not a record of software coding
       errors or bugs for which system-wide fixes have been
       developed and implemented.  To the best of Post Office's
       knowledge and belief, there is no issue in the Known
       Error Log that could affect the accuracy of a branch's
       accounts or the secure transmission and storage of
       transaction data."
           So, my Lord, I just want your Lordship to have
       a stake in the ground as to where we were pleadings-wise
       at that point, in circumstances where Dr Worden's first
       approach was to confine his analysis almost entirely but
       not exclusively to KELs to identify where the bugs were
       in Horizon that may have an impact on branch accounts.
       So it is in that context that the reply is then pleaded
       in that way in relation to robustness.  And seeking to
       make the distinction, ultimately reflected in the way
       the Horizon system is defined for this trial, which is
       slightly narrower, as the system itself.  And then of
       course Dr Worden is the one who says the subpostmasters
       themselves form part of the countermeasures by manual
       inspection of data MID and user error correction in his
       analysis.
   MR JUSTICE FRASER:  So what's the stake in the ground?  I'm
       not --
   MR GREEN:  The stake in the ground is what Post Office were
       saying about the existence or knowledge of information
       about bugs at that stage by way of context to us.
           So they are saying that the context in which we were
       trying to plead was basically blindfolded and
       Post Office was very keen for us to plead particulars of
       things which a striking feature of this case is that the
       subpostmasters did not know often about them at all and
       were often not told what the underlying root cause of
       things was even when, in Mrs Burke's case, for example,
       it was not her fault at all and she gets a TC that says
       "please take more care in the future".  Totally a system
       fault.
           So at this stage we are pleading completely
       blindfold to this, and Post Office are positively saying
       that to the best of Post Office's knowledge and belief
       there's no issue in the known error log that could
       affect the accuracy of a branch's accounts or secure
       transmission and storage of transaction data.
           It is easy when one has been in a trial this long,
       and it has been interrupted, to lose sight of the
       utility of the listing of this trial given where we have
       come from and where we are now in terms of the evidence
       available for the court and indeed to the claimants.
           I just wanted to put that stake in the ground to
       give it at least a small indication of the distance of
       travel.  We have obviously mentioned the distance of
       travel in relation to remote access in our closing
       submissions, which is the position is completely
       transformed.  And it is also obviously apparent that
       Post Office did not disclose in their pre-action
       correspondence the existence of the Dalmellington bug at
       all, notwithstanding that it affected 88 branches and
       there were 112 known instances of it occurring over
       a period of about five years.
           That was left for Mr Coyne to stumble upon.  There
       was no disclosure of the APPSUP role, which the court
       has now seen what a huge back door it was into the
       system, and how the logs were not either kept or kept in
       such a way as to allow there to be any sensible analysis
       of how that privileged role had been used.
           So it has transformed out of all recognition in
       terms of the claimants' and the court's understanding of
       remote access.  None of that would have happened had the
       court not ordered this trial to take place and
       essentially the process of preparing for and undertaking
       the trial actually happened as it has.
           My Lord, just briefly in relation to robustness,
       there is also the document at {C1/2/4}, which was our
       provisional outline document, which the court will
       remember Post Office were very keen for us to provide
       but less keen to be forthcoming themselves about what
       they knew to be the problems with the system.
           So this provisional document was of course put
       together when we still didn't know about the
       Dalmellington bug:
           "There's no single, authoritative definition of
       'robust' in the context of a system such as Horizon,
       which appears to be more commonly used in public
       relations than as an objective performance standard.
       Pending any clarification of its objective meaning, it
       appears to relate to the ability of a system to perform
       correctly in any scenario, including where invalid
       inputs are introduced, namely, to have in place
       effective error repellency."
           {C1/2/5}:
           "It is clear that, on a sensible construction of the
       term 'robust', Horizon did not neat this standard
       because:
           "(a) it contained bugs, errors and defects as set
       out in paragraph 1 above which created discrepancies in
       the branch accounts of Subpostmasters;
           "(b) it suffered failures of internal mechanisms
       which were intended to ensure integrity of data."
           There is a KEL in relation to recovery failures
       there:
           "(c) the system did not enable such discrepancies to
       be detected, accurately identified and/or recorded
       either reliably, consistently or at all;
           "(d) the system did not reliably identify
       'Mis-keying', which is inevitable in any system with
       user input, and did not reliably have in place
       functionality to restrict users from progressing a
       mis-key;
           "(e) ... numerous processes and workarounds ...
       weaknesses and risks of errors ..."
           And so forth.
           That goes all the way down to paragraph 3.3 over the
       page {C1/2/6}:
           "However, as noted above, whether Horizon is
       'robust' plainly depends upon the definition given to
       that word.  Even the small chance of errors, bugs and
       defects admitted by the Defendant and/or supplemented by
       those underlying the reports above, would be likely to
       produce the result alleged by the Claimants.  Therefore,
       as noted above, even if the overall probability of a
       bugs or errors affecting Branch accounts is small, the
       sheer number of transactions undertaken by the Horizon
       system is consistent with the level of discrepancies
       arising from bugs and errors in issue in these
       proceedings."
           So, my Lord, that dovetails with those paragraphs in
       the reply to which I have already taken the court.
           So that is as far as we were able to go in relation
       to robust.  But we say for functional purposes it isn't
       robust insofar as it does all of those things and those
       things create a small but real chance of discrepancies
       in relation to subpostmasters' branch accounts or their
       transactions.
           My Lord, for your note, just in relation to the
       KELs, if we may.  It is right that your Lordship should
       know that at paragraph 29 in the Post Office's closing
       submissions at {A/6/16}, Post Office suggests that it
       has taken a co-operative approach to disclosure.  For
       reasons which will be already largely clear to the
       court, we do not accept that is correct, and I will just
       give the court two examples.
           In our opening, claimants' written opening, which is
       at {A/1/106}.
   MR JUSTICE FRASER:  This is your opening, is it?
   MR GREEN:  The claimants' opening.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  And we devoted an appendix, which is referred to
       in the body, to looking at what the claimants had to go
       through to get the KELs, given how large they loomed in
       the trial.  And at that appendix at page 106, just to
       ask the court to turn to it for a moment in the opening,
       the claimants first sought disclosure of the known error
       logs on 28th April 2016 in the letter of claim, and they
       said:
           "We understand that Fujitsu maintained a 'Known
       Error Log' for Horizon and that such reports will have
       been provided to Post Office."
           We thought the known error log was a proper problem
       management system identifying all known errors in that
       sense.  It turns out that, in fact, the evidence of this
       is much more atomised across the documentary landscape,
       but we were expecting a log of all known errors.
           Post Office's letter of response says in effect they
       not only refused to provide the documents but denied
       their relevance and cast doubt over whether they even
       existed.
           So Post Office's response said -- it is all
       footnoted to the references; I won't take your Lordship
       to the underlying documents --:
           "In circumstances where you have not particularised
       any factual basis on which horizon is defective,
       disclosure of these documents (if they exist) is not
       relevant reasonable or proportionate."
           Leaving that matter at large for us.
           We didn't accept that.  No good reason to refuse
       disclosure.
           Then over the page at {A/1/107}, 317:
           "Post Office's response on 13th October 2016 ..."
           They say:
           "The claims which you have particularised concern
       the Core Audit Log.  Following a review of the Known
       Error Log, Fujitsu have confirmed that there have been
       no logs in respect of Core Audit Log.  The remainder of
       the Known Error Log does not relate to the claim which
       you have particularised and as such disclosure of this
       document is not relevant."
           My Lord, I'm not going to take you through it, but
       your Lordship will see the history of this all the way
       through, including paragraph 324 on page {A/1/109}, the
       position of what the known error log was described as
       before your Lordship at the CMC in October 2017:
           "It contains things like there's a problem with
       printers.  There's a printer.  You have to kick it on
       the left-hand side to make the printer work.  I mean
       there's a vast range of hardware problems of that sort
       and maybe some software problems (inaudible) but not the
       kind of bugs, errors and defects that the claimants are
       wishing to pursue in their particulars of claim so far
       as Post Office is aware."
           There was a sort of Nelsonian approach to the
       obvious relevance of the known error log and a way of
       presenting the known error log which we say is (a) far
       from forthcoming, and (b) completely irreconcilable with
       the claim that Post Office has been co-operative in
       relation to disclosure.
           My Lord, parenthetically they also queried the
       relevance of OCPs and OCRs as well.  I will give
       your Lordship a reference to that later on.  So for
       those and other reasons that I will develop later on, we
       do not accept that is the case; in fact, quite the
       opposite.  We ask the court to take note of Mr Coyne's
       answer in re-examination that he had never encountered
       a case like this where disclosure had come out in this
       way in his entire career.
   MR JUSTICE FRASER:  Well, the Post Office's closing
       submissions make a point in paragraph 1145 on page 377
       that you haven't -- well, the suggestion is that
       complaints about disclosure have emanated from the court
       and that you haven't made any applications for specific
       disclosure and you haven't advanced any complaint that
       particular disclosure orders haven't been complied with.
   MR GREEN:  Well, my Lord, taking it in stages, that rather
       sidesteps the issue that I have been making submissions
       on.  The issue that I have been making submissions on is
       the manner in which Post Office -- we got clear examples
       of documents that should have been disclosed; there is
       a very recent one which they kept until May.  They say
       they intended to disclose it in March, for example.  So
       there are clear examples of things where they haven't.
   MR JUSTICE FRASER:  Did they say they intended to disclose
       it in March or did they say they discovered it in March?
   MR GREEN:  There was one which was discovered in March which
       they intended to disclose and erroneously forgot to.
   MR JUSTICE FRASER:  Where's that?
   MR GREEN:  I will get the reference to that in a minute, but
       just by way of example.  There is a whole pantheon of
       disclosure issues in relation to which the claimants
       have had to try to take a -- we simply could not have
       issued applications on every possible complaint, not
       least because the proportions approach, which the court
       understandably took given what the court was being told
       by Post Office, was to order focused disclosure and then
       allow us to look at that, and then from there to then
       ask sequentially for what we could then see would be
       relevant.
           On the basis of what the court was told, that was
       plainly, on the face of it, the right way to approach
       proportionality in disclosure.  The point that I was
       seeking to address here was the anterior point of when
       we say the documents which were almost the sole source
       for Dr Worden's first report, when we raised them in
       2016, your Lordship has seen what was said about them
       all the way through in the CMC as if they were of
       absolutely marginal relevance.
           If we had been given an honest answer, I say
       "honest" carefully --
   MR JUSTICE FRASER:  I was about to pick you up on that.
   MR GREEN:  Yes.  My Lord, the reason I say honest is this.
       In a Nelsonian sense, to tell the court something where
       you have made no enquiry to ensure that you are getting
       a fair picture, is, we say, extremely unsatisfactory.
   MR JUSTICE FRASER:  Well, you have to be very careful about
       making submissions that include effectively a criticism
       of lack of honesty, don't you?
   MR GREEN:  My Lord, that is right.  I'm trying to make it
       clear what I'm saying and I will come back to that later
       on.  But there is a picture across the piece of --
       I mean, perhaps I shall recede to "less than
       forthcoming" for the moment.
   MR JUSTICE FRASER:  I think that would probably be best.
   MR GREEN:  Because it saves an argument about whether it
       rises to that threshold or not.  But there is a repeated
       picture of the court being told things which turn out
       not to be correct.  And the explanation is, so we look
       at Angela Van Den Bogerd's evidence which we will come
       to in a minute, where she gives her evidence.  She has
       not looked at the underlying documents, which tends to
       suggest it is not right, and she is specifically asked
       by the court: did you look at those documents before you
       made your witness statement or not?  She says no.
           So we have this constant picture of a situation in
       which the implicit suggestion that one might expect to
       be being made when a senior person gives evidence, for
       example, that they have taken care to make sure what
       they are saying is right, turns out not to be correct.
           So my Lord, I'm happy to rest on "less than
       forthcoming" for present purposes, and for present
       purposes I'm going to withdraw the reference to had they
       given an honest answer.  What I shall say is had we been
       given a correct answer which any reasonable enquiry
       would have revealed, had we been given a correct answer
       which any reasonable enquiry would have revealed in
       2016, the proper thing for Post Office to do would have
       been to provide disclosure at that stage of relevant
       KELs that disclosed the existence of discrepancy of
       bugs, defects and issues in Horizon which could give
       rise to branch discrepancies at that stage.
           That's what should have happened.  So in terms of
       where we were and what we were able to get later on, we
       are about two years late getting things, compared to
       where we should have been had Post Office given correct
       information in responding to our enquiries, and from
       where we would have been were we able to show our expert
       those documents at a much earlier stage and not have the
       situation which Mr Coyne found himself in in this case
       with thousands of documents coming in a matter of days
       before his second report, for example.  So it has been
       extremely unsatisfactory.
           My Lord, in our closing at page {A/5/19}.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  -- which is {A/5/19} for Opus purposes,
       paragraph 57.  The PEAK at 1848.8.2 --
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  -- was disclosed and was a document:
           "... adverse to Post Office and would have been
       directly relevant to the evidence which Mrs Van Den
       Bogerd had given in her witness statement relating to
       Drop & Go."
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  "[It] also contained evidence of keystrokes which
       were plainly available to the Post Office from Fujitsu
       ..."
           Your Lordship will remember that document coming up
       at the end:
           " ... a point on which Post Office’s witnesses had
       given very odd evidence (addressed further below).  It
       would therefore have been an obviously relevant document
       for the Claimants to have referred to at that stage, had
       it been disclosed to them.  As it bore directly on
       Issue 8, it is even more surprising that it was not
       disclosed earlier..."
           Because Issue 8 is about what information was
       available to Post Office.
           And we had the absolutely bizarre spectacle of
       Mrs Van Den Bogerd accepting that keystrokes would be
       provided in a Credence report, because Mr Patny, who was
       accused of dishonesty, and your Lordship is very right
       to point out the seriousness of alleging dishonesty,
       Mr Aakash Patny was accused of dishonesty in
       circumstances where he had repeatedly chased for
       a Credence report because he wanted to find out what had
       happened at a stage where Post Office internally
       appeared to think that keystrokes would be provided with
       that.
           We have addressed that in relation to
       Mr Aakash Patny and the assault on his honesty in our
       closing submissions, but that is the context in relation
       to which this keystrokes document would have been
       extremely relevant.  And then, if your Lordship looks at
       paragraph 58:
           "The explanation for the timing of the disclosure of
       this PEAK given in the 18th witness statement of
       Mr Parsons does little to improve the position or
       assuage any concerns; it reveals that Post Office waited
       2 months from discovering this PEAK on 29 March 2019 ...
       before disclosing it to the Claimants, just before the
       resumed hearing."
           59:
           "Further, despite the excuse given for this 2 month
       delay being that 'For the next couple of months my firm
       continued to investigate these bugs and a number of
       further documents relating to these bugs came to light',
       in fact, on 24 June 2019 at 17.42 ..."
           In the evening:
           "... [Wombles] provided yet further disclosure in
       relation to this bug and email chain.  In response to
       a request for an explanation as to why this document had
       not been disclosed before, [Wombles] said that the
       document had been provided to it on 10 May 2019 was
       intended to be disclosed on 31 May ..."
           I think that should be March.  May:
           "... was intended to be disclosed on 31 May 2019,
       but due to an oversight was not disclosed on that date
       [in May]."
           So there are examples in relation to that, but
       there's also, my Lord, the other anterior feature of
       Post Office's approach which is we were not able to
       request documents which related to the Dalmellington bug
       because the tenor of Post Office's letter of response
       was such as to suggest that there had been three bugs,
       which were the ones that Second Sight had identified,
       and there obviously must be a possibility of other bugs.
           In circumstances where, between the letter of claim
       and the letter of response, there was the email saying
       "stop investigating the Dalmellington bug", that is
       a deliberate decision to stop investigating that bug at
       that stage.  And we respectfully submit that the only
       available inference is it was a deliberate decision not
       to mention the Dalmellington bug in the letter of
       response.
           We respectfully say that that is reaching the higher
       echelons of being less than forthcoming.  Similarly, the
       death of a thousand cuts in relation to remote access.
       Given that we know from the Paula Vennells email that
       she specifically made an enquiry as to what the position
       was, the way that evidence emerged is extremely
       unsatisfactory, particularly because Mr Parker's first
       round was to say Mr Roll's account was misleading;
       positively to say that Mr Roll's account of remote
       access was misleading, when (a) it wasn't, and (b) he
       was right.
           So, my Lord, with that general introduction can
       I turn now to the approach in relation to fact evidence.
       One of the points that the defendants/Post Office takes
       against the claimants is to complain about the claimants
       calling fact evidence from a handful of SPMs, and that
       begins in their closings at {A/6/299} at paragraph 918.
           We say it is a bad point to say the least.  Briefly,
       contrary to Post Office's approach before the Common
       Issues trial, Post Office did not make any application
       to strike out that witness evidence.  Secondly, at the
       pre-trial review my learned friend referred to his
       anxiety on Post Office's part about that, which we can
       see.  The relevant part of the transcript is
       {C8.14/3/13} at letter B.  We see at letter B my learned
       friend:
           "I can tell your Lordship that a huge amount of
       anxious thought went into that question.  It was in the
       aftermath of your Lordship’s strike-out judgment.  The
       reply that came from Freeths was, 'In the light of the
       strike-out judgment we are not changing anything, we are
       not changing course"
           That's his suggestion:
           "Given the anxiety, frankly, the fifth on this on
       the part of Post Office --"
   MR DE GARR ROBINSON:  My recollection is that I said
       "fearful".
   MR JUSTICE FRASER:  Fearful rather than what, sorry?
   MR DE GARR ROBINSON:  "... fifth on this on the part of
       Post Office --"
   MR JUSTICE FRASER:  It should say:
           "Given the anxiety, frankly, the --
   MR GREEN:  The fearfulness.
   MR JUSTICE FRASER:  Right.  Thank you very much.
   MR GREEN:  Then your Lordship then explained to my learned
       friend and the court at D:
           "What I said ... in that judgment, I thought which
       was obviously reserved and drafted, I applied the test
       set down most usefully by Mann J about striking out
       evidence of fact and what approach one takes to
       relevance.  You have 12 witnesses of fact for, let’s
       call it, round two of Horizon.  Mr Green has umpteen
       witnesses of fact.  Most of the witness statements
       actually are relatively narrow in compass.  There is
       obviously more fact than one would necessarily expect
       with the phrase 'limited evidence of fact', but I think
       between you, you are agreed that it can be dealt with in
       a reasonable number of days, and the only real issue
       appears to be, given you each have an expert, how
       Mr Henderson’s evidence is to be treated if it is to be
       treated at all, that is really what it comes down to.
       You say he is an expert by the back door."
   MR JUSTICE FRASER:  The focus at the pre-trial review
       I think originally was about Professor McLachlan and
       Mr Henderson.
   MR GREEN:  Originally.
   MR JUSTICE FRASER:  You said you weren't going to call
       Professor McLachlan and I gave a ruling on
       Mr Henderson's incorporation of the Second Sight report.
   MR GREEN:  Precisely.  My Lord, the short point is that we
       ended up with nine of the Post Office's witnesses of
       fact giving evidence.
   MR JUSTICE FRASER:  Is that including Mr Membery?
   MR GREEN:  Excluding Mr Membery.
   MR JUSTICE FRASER:  It is really ten, then.
   MR GREEN:  It is really ten, but nine actually giving live
       evidence, plus Mr Membery.  And then Mr Roll and
       Mr Henderson giving evidence, which was much narrower in
       compass than he would have liked to have given, as must
       have been apparent to the court.  Plus five SPMs.
           So Post Office sought to rely on ten witnesses of
       fact and the claimants sought to rely on seven plus
       Mr Singh, in respect of whom there was a notice to
       admit, which I will just show your Lordship later.  So
       less.
   MR JUSTICE FRASER:  But the question about evidence is not
       a question of counting up how many witnesses are on each
       side.
   MR GREEN:  Your Lordship is quite right, but I just wanted
       to clarify.  It is not a counting exercise, but those
       are the numbers.  I will come to the substantive points.
           In response to the complaint by Post Office about
       this, just imagine what the trial would have looked like
       if we had not had the facts of those individual SPM
       cases to provide factual grist to the mill of
       determining what the systems were and how they worked in
       practice.
           So the only way ARQ data came out was through the
       individual cases of individual SPMs.  Failed recoveries
       was focused upon specifically, because of SPM evidence,
       Ms Van Den Bogerd's response in her responsive witness
       statement.  It is important to identify that Post Office
       hadn't addressed failed recoveries outside the context
       of specific SPM evidence.
           The claimants then had to prove their account to
       contradict suggestions by Post Office of user error
       being causative of discrepancies, which was demonstrated
       to be wrong.  There was a late amendment to Mrs Van Den
       Bogerd's second witness statement in relation to
       Angela Burke where she had directly sought to suggest
       that Angela Burke was at fault, which was wrong.  There
       was no amendment in relation to Mr Tank's evidence in
       Angela Van Den Bogerd's witness statement although it
       was ultimately accepted that there wasn't user error
       causative of the discrepancy in relation to the receipts
       in Mr Tank's case.
           Then the Post Office refused the claimants' notice
       to admit specifically on the basis of causation of
       discrepancies when correctly following the appropriate
       course in relation to Mr Singh.
           So if I can just take your Lordship very briefly to
       that.  {H/187/1} is the letter enclosing a notice to
       admit, which is mentioned at the bottom.  It is
       explained at the bottom there:
           "As you will see, we firstly invite an admission
       that it is possible that a phantom transaction similar
       to that described by Mr Setpal Singh at paragraph 6 of
       his witness statement dated 28 September 2018 occurred
       at the Reddish Post Office in or around the summer
       of 2003."
           It is a very limited admission because Ms Van Den
       Bogerd's submission, as we see over the page, was that
       there was insufficient documentary evidence available to
       determine whether or not that was the case {H/187/2}.
       And that was one admission that was sought on the basis
       of what she herself had said in her witness statement.
           Then at the bottom of the page, the second admission
       that was sought was to invite Post Office to agree, to
       admit that it was:
           "... aware of occasions where Horizon froze or would
       stop working or screens would go black as a result of a
       system crash, and discrepancies in accounts did
       sometimes arise after SPMs followed, or attempted to
       follow the recovery process."
           There are two alternatives there.  Your Lordship
       just briefly will see {H/188/1}.  That is the actual
       notice to admit, and paragraph 2 deals with that.
           Then if we go to {H/200/1}:
           "The second alleged fact is drafted in a tendentious
       manner and, as drafted, is not true (or even supported
       by the evidence that you cite in your letter).
       Specifically, there is no evidence cited that
       discrepancies arose after system crashes where the SPM
       did in fact follow the recovery processes properly, as
       opposed to merely attempting to follow those processes."
           So they refused to admit something that the court
       can now see is true, and Angela Burke's case is
       a perfectly good example of exactly that.
           See also Mr Tank.  So seeing in reality what event
       logs actually looked like for specific transactions,
       what transaction logs looked like for specific
       transactions was necessary, and there was -- how else
       were we going to do it?
           Again, Post Office would have had a trial in which
       it was able to say what would happen or could happen and
       what it would normally do and where the claimants would
       be unable to effectively analyse or challenge or unpick
       those general assertions which were almost exclusively
       if not wholly exclusively self-serving.
           Another feature of the one-way street approach to
       determining the outcome of this trial, my Lord, is in
       relation to so-called unchallenged evidence, and this is
       quite a big point in the closing submissions and quite
       heavy reliance is placed on it, and it has quite a long
       history.  And your Lordship has repeatedly made clear
       that a point of that type would be given short shrift.
           My learned friend raised it at the PTR and it was
       made perfectly clear what the position was.  It was
       raised at the PTR, I do not think we need to go it but
       I will give the court the references at {C8.14/3/14} at
       D to E and {C8.14/3/15} at E to H.
           That led to the court's observations at
       {C8.14/3/17} --
   MR JUSTICE FRASER:  Maybe we should go there.
   MR GREEN:  Shall we go to that part.  {C8.14/3/17}, top of
       the page, 17, your Lordship to me:
           "Mr Green, I am going to make certain observations
       to you, which really are for the purposes of both of
       you, and that you might find most useful now that you
       have stood up.  In a way, it is possibly, I suppose, a
       misunderstanding as to the way time-limited trials work.
       I know this is a QB case but it is being tried in this
       building using many of the trial management procedures
       that we use in this building, not only in the TCC but
       the other specialist courts.  In any time-limited trial
       any party would get pretty short shrift if they tried to
       make a formal point if a particular subject had not been
       challenged within the time available.  Therefore, it
       occurs to me that at least part of the Post Office's
       concern arises out of a misapprehension of your
       technical ability to do that.  Are you aware of your
       technical inability to manage such an objective?"
           It might originally have been an objection.  So it
       was absolutely clear, and yet what we then find in the
       defendants'/Post Office's closings at {A/6/78} -- I'm
       only going to give your Lordship examples, but just to
       explore the point generally.  We have at paragraph 176:
           "Nine PEAKs, limited to two categories, across
       17 years does not suggest that the final response codes
       were regularly applied incorrectly."
   MR JUSTICE FRASER:  Where are you looking?
   MR GREEN:  At paragraph 176, my Lord.
   MR JUSTICE FRASER:  Of the Post Office's closings?
   MR GREEN:  Indeed, at page 78.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  So that is the point in relation to the nine
       PEAKs.
           Then at paragraph 177, the very next paragraph
       {A/6/79}, it says this was:
           "... limited to only two codes used across the PEAKs
       and categorised by Mr Parker, namely ... 70 and 68."
           It is actually not correct.  It also included 62,
       but let's leave that by the by for a moment.
           Not only is it generally wrong to take that
       approach, but there was, we respectfully say,
       a divergence of approach between the claimants and
       Post Office during the trial.
           The claimants sought, where they could, not just to
       give an example of a point but to try to approach points
       in a way that the court could fairly regard as
       representative.  And that was the basis upon which bugs
       1 to 10 were cross-examined on rather than cherrypicking
       favourite bugs.  It is the basis upon which later today
       I'm going to invite your Lordship to look at 11 to 15.
       So I'm not cherrypicking 17 or 21.
           Similarly, in relation to the PEAKs that we dealt
       with with Mr Parker and the closure codes, those PEAKs
       were PEAKs that were already in play in the trial bundle
       for the most part.  I'm not aware of any that we
       specifically uploaded to demonstrate the absurdness of
       the closure codes.  And we saw them because we were
       looking at PEAKs that were already in play and they were
       good examples.  But not only that, my Lord, that
       I specifically said at {Day12/53:23} in the transcript
       that I was not going to be able to go through all of the
       examples and specifically explained that I was going to
       look at the big categories where there were large
       numbers of PEAKs for which that code had been adopted in
       the table that Mr Parker was referring to.
           So he showed in the table there were thousands of
       PEAKs in some categories and we chose to look at the
       closure codes where there were the largest number of
       closures being affected and where he had not included
       those closure codes as having any content in software
       errors that Mr Roll might have been working on.  That
       piece ended at {Day12/86:13} and line 18 with
       your Lordship saying:
           "I don't think you are going to have time to do any
       more of these:
           "MR GREEN: I'm not going to do any more of those, my
       Lord, I'm cutting it there because -- not least because
       the witness accepts that he didn't go through them
       before he gave his witness statement."
           So there were two points there: (a) I went as far as
       I could to try and give a representative impression of
       how this had been done; and (b) because it became
       absolutely clear that Mr Parker had not gone through
       them himself before and also the extent to which he had
       used the definitions in the underlying document which
       had been put to Mr Roll was seriously in doubt, and he
       positively said at one point in his evidence, which we
       addressed in our closings, that he actually deliberately
       adopted his own definition in one of the categories.
           So for those reasons we didn't take that any further
       than necessary.
   MR JUSTICE FRASER:  But Mr de Garr Robinson is entitled to
       submit, isn't he, that it wasn't a representative
       impression?  The fact it is a time limited trial doesn't
       stop him making a submission.
   MR GREEN:  Your Lordship is absolutely right that the fact
       that -- he can say it is not representative and put
       forward submissions to make that point good.  That's
       always available.  Your Lordship is absolutely right.
   MR JUSTICE FRASER:  But isn't that what he and his team are
       doing in paragraph 177?  {A/6/79}
           The time limited trial point is that the party is
       not permitted to submit that a point is accepted or has
       not been challenged, and hence certain conclusions can
       be drawn.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  But that's rather different, isn't it,
       from saying it is not a representative exercise?
   MR GREEN:  Well, my Lord, your Lordship is absolutely right.
       But because no counter exercise is advanced to make that
       point good, and because of the way it plays out through
       the rest of the submissions, it appears to us that the
       substance of the point there --
   MR JUSTICE FRASER:  I understand.
   MR GREEN:  -- is that.  And if we look at {A/6/88}, the
       entire heading, your Lordship will see, is evidence that
       was not challenged.
           When we go over the page {A/6/89} to the conclusion
       at paragraph 208, it is just a bare assertion that large
       parts of Mr Parker's evidence was not challenged.
       Having read all that, we revisited what the substantive
       point seemed to be in other places.
   MR JUSTICE FRASER:  Understood.
   MR GREEN:  And that's what we wished to draw the court's
       attention to.
   MR JUSTICE FRASER:  We are probably going to need a break at
       some point.
   MR GREEN:  My Lord, I have two small points to finish this
       off and give the transcript writers a break.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  The evidence said not to have been challenged
       includes his evidence about the APPSUP role at 205.9
       {A/6/89}:
           "This includes his evidence that he cannot recall
       any instance in which the APPSUP role has been used to
       change transaction data, although he cannot state
       unequivocally that it has not happened.
           We didn't cross-examine further on that because his
       evidence carries so little weight in relation to that
       that it is effectively worthless.
           His paragraph 15 of his witness statement in which
       the belated discovery of the APPSUP role is reflected,
       which in itself is bizarre and speaks volumes, this is
       at {E2/13/4}, reads as follows:
           "APPSUP is used by SSC for updates to and
       maintenance of the BRDB that would not involve changing
       transaction data.  I have not examined the privileged
       user logs, but based on my experience my expectation is
       that these uses of APPSUP or at least the vast majority,
       are for support work that does not involve changes to
       transaction data.  I cannot recall any cases in which it
       has been used to change transaction data, but I cannot
       state unequivocally that there are no circumstances in
       which it has ever happened."
           Given the fact that he didn't know it had happened
       at all, it was absolutely pointless to challenge
       a witness of that sort in a time limited trial on the
       point.
           So it's not just the bare not challenged point, it's
       ignoring the obvious context in which particular
       evidence was not challenged.
           My Lord, would that be a convenient moment?
   MR JUSTICE FRASER:  I think so, and we will have ten minutes
       I think for the shorthand writers.  Thank you very much.
   (11.56 am)
                         (A short break)
   (12.05 pm)
   MR GREEN:  My Lord, can I now deal briefly with the approach
       to some of the fact witnesses that Post Office called.
       In relation to Mr Godeseth at {A/6/63}, which is page 63
       of Post Office's written closings.
   MR JUSTICE FRASER:  Go on.
   MR GREEN:  Post Office's paragraph deals with Mr Godeseth's
       evidence there, and what is said there is, in line 3,
       some of his evidence was unsatisfactory:
           "With the benefit of hindsight, Post Office would
       not have asked Mr Godeseth to cover several matters that
       were addressed in his first two witness statements -
       although it is right to point out that if Post Office
       had only called first-hand evidence, the trial would
       have been wholly unworkable."
           The obvious answer to that is to call Mr Jenkins,
       who was relied on repeatedly by a number of witnesses.
       But let's leave that aside for a moment.
           Just analysing what is said by Post Office there.
       The contention that with the benefit of hindsight they
       would not have asked him to deal with several matters
       that were addressed is amplified at paragraph 146 on
       page {A/6/67}:
           "In Mr Godeseth's cross-examination, some of the
       points he made on the basis of information provided by
       others were shown to require correction or at least
       clarification.  This took Post Office by surprise.  With
       the benefit of hindsight, Post Office accepts that there
       are points on which, if it wished to adduce any evidence
       at all, it should have ensured that witness statements
       were prepared for the individuals who were the sources
       of the relevant information."
           It is not clear why that is accepted in particular
       in relation to Mr Godeseth rather than across the piece
       on every occasion when that problem arose, but let's
       just focus on this for the moment.
           The Post Office didn't need hindsight to realise
       that calling witnesses who don't actually know the
       subject matter is wide open to error and will cause
       difficulties for the experts, the other party and the
       court, because the assumption when someone gives
       a statement of truth that they believe something to be
       true is at least likely to be that there is some
       foundation for that belief.  The difficulty for the
       claimants was flagged at the pre-trial review in the
       context of responding to complaints about Mr Henderson's
       evidence.  I won't take your Lordship to it but it is at
       {C8.14/3/20}, which is me making the submission that
       I effectively have to challenge someone who is not even
       there in relation to Mr Jenkins who appeared to be the
       source of much of the evidence.
           So the difficulty of a number of Post Office's
       witnesses giving evidence about things they didn't know
       about, which they got from others, was flagged up at the
       PTR at {C8.14/3/20}.
           Mr Coyne had himself identified difficulties with
       Mr Godeseth's evidence in Coyne 2, which is at
       {D2/4.1/98} at paragraphs 4.3(a) and (b).  If we can get
       that up, that will be helpful.
           It is 4.3(a) and (b), specifically referring to
       speaking with Mr Jenkins and so forth and not referring
       to supportive documents.  Post Office should not have
       been surprised about the errors revealed in
       cross-examination because those errors were errors that
       the claimants were able to identify in relation to his
       approach to the bugs and treatment of them, which were
       apparent on the face of such documents as were
       disclosed.
           The number of errors were identified in Mr Coyne's
       second report, but not subsequently corrected.  You can
       refer to Mr Coyne's second report; we don't need to
       bring it up, but paragraph 3.30, {D2/4.1/21}.
       Particularly with regard to the number of branches
       affected in the receipts and payments mismatch which we
       find on page 24 of the report and the number of
       occurrences at Callendar Square.
           Your Lordship will remember that even in
       January 2017 the Post Office was asserting that the
       Callendar Square bug affected only one branch.  We now
       know that not to be the case.
           The suggestion that Post Office were surprised is
       resurrected further at paragraph 144.3, which is at
       {A/6/66}:
           " ... so far as Post Office was aware, the relevant
       parts of Godeseth 2 were most unlikely to be
       controversial.  For example, the Misra trial was a
       matter of public record, the four bugs were covered by
       contemporaneous documentation and Post Office had no
       reason to doubt Fujitsu's account of the documents it
       held."
           It is extremely surprising that it is said there
       that his evidence of the bugs was most likely to be
       uncontroversial.  The impact and affect of bugs was
       always going to be hotly contested and, indeed,
       I actually made that submission expressly about
       Mr Godeseth's second witness statement at the PTR at
       {C8.14/3/18} between pages 18 and 19.
           The second line on the right-hand side of the foot
       of page 18:
           "If your Lordship then looks at what then follows,
       there is a treatment of the individual known bugs that
       Mr Coyne is reporting, so Callendar Square, these are
       actually front and centre main --"
   MR JUSTICE FRASER:  Where are you?  At the very bottom.
   MR GREEN:  Three lines up from the bottom.  Go over the page
       {C8.14/3/19}.  Something has gone wrong there.  I will
       just read it out:
           "... main fighting ground for the Horizon trial, so
       Callendar Square is immediately below, and you then get
       some of the bugs, later on, payment mismatches ...
       dealing in this section ..."
           There's absolutely no doubt that the evidence about
       bugs is going to be central to the testing of the
       evidence in this trial.
           Mr Coyne in his second report raised multiple issues
       with Mr Godeseth's second witness statement and whether
       it captured the full extent of the bugs.  And that was
       paragraph 4.3(d) on page {C8.14/98} and the further
       points that follow at 4.4 over the page.  And as to the
       language that Fujitsu's account of the documents it
       held, which is Post Office's language in its closing
       submissions.
   MR JUSTICE FRASER:  Which language are you talking about?
   MR GREEN:  In Post Office's explanation of having no reason
       to doubt Fujitsu's account of documents which it held.
           Many of the documents were effectively created by
       Fujitsu for Post Office, if they weren't Post Office
       documents themselves.  So, for example, the receipts and
       PEAK payments mismatch documents is a note of a meeting
       attended by Mr Andy Wynn of Post Office.
           So it is not simply a matter of Fujitsu's account of
       documents that helped.  And in any event the documents
       when taking a witness statement from anyone, the proper
       approach is to say: what's the source of that?  Is there
       a document that supports that and, if so, should it be
       exhibited?  And that didn't happen, and that's part of
       what went wrong, although not all of what went wrong.
           So there are two things in combination.  There is
       calling witnesses who aren't properly placed and it
       hasn't been made sure that they are properly placed to
       give the evidence that they are giving.  And secondly,
       the fact that very frequently no documentary support was
       cited for general propositions of what would or could or
       should have been happening is why (a) it was difficult
       for the claimants to unpick it, and we had to go through
       the documents ourselves and find them, but (b) it must
       have contributed to any misapprehension, if there was
       such, by Post Office about whether Mr Godeseth was
       properly placed to give the evidence at all.
           Had the witness statements been done in the usual
       way by seeking to identify what the basis for things
       that are being said is and exhibiting the relevant
       documents, it would have become apparent much sooner,
       even if it wasn't fully apparent from all the
       observations made by Mr Coyne and others, that
       Mr Godeseth's evidence was very unsatisfactory in that
       respect.
           As to Mr Jenkins, the explanation for him not being
       called is provided at paragraph 138, and that's at
       {A/6/64}, page 64 of the Post Office's closing.
           Paragraph 138 says:
           "Post Office wanted to provide a simple and
       uncontroversial overview of Horizon and its relevant
       features."
           My Lord, just pausing there.  That is exactly the
       problem we faced in the Common Issues trial, that there
       was this wish to present a general overview that seemed
       extremely rosy and which, when unpicked, fell apart.
           That was also the difference reflected in the
       approach of the two experts.  Dr Worden provided this
       top down overview-based look at the Horizon system, in
       part largely relying on Mr Godeseth, as we will come to
       in a minute, and Mr Parker's evidence and others.
       Whereas Mr Coyne was trying from a very early stage to
       actually understand how any errors were recorded, were
       they recorded, obtain the documents and analyse them for
       the purposes of answering the Horizon questions.  In
       that respect -- we will come to it in a bit more
       detail -- we say the criticisms made of Mr Coyne are
       extremely unfair.
           Just focusing on the explanation from Mr Jenkins not
       being called, which we find at paragraph 138, it says
       Post Office says there that:
           "It recognised that it was not possible for one
       person to have a complete understanding of all the
       corners of the Horizon system ..."
           Pausing there, Mr Jenkins appears to have had nearly
       a complete knowledge from what we have heard:
           " ... but, on the basis that there would not be room
       in the timetable for multiple witnesses, it took the
       view that this overview should be provided by one
       person."
           Just pausing there.  That isn't even what happened.
       It wasn't only Mr Godeseth who referred to Mr Jenkins.
       And Mr Jenkins could certainly have collected
       information from other team members who other witnesses
       collected information from.  But they then go on to say:
           "Two possible candidates were Torstein Godeseth and
       Gareth Jenkins.  Taking into account the involvement
       that Mr Jenkins had had in a number of criminal
       prosecutions that are currently being looked at by the
       criminal Cases Review Commission (eg the Misra case),
       Post Office asked Mr Godeseth to do so."
           Well, we respectfully say it is a slightly
       surprising approach because we see it further amplified
       at 144.1 on page {A/6/66}.  It says:
           "... Post Office was concerned that the Horizon
       Issues trial could become an investigation of
       [Mr Jenkins'] role in this and other criminal cases."
           My Lord, two points arise on that.  Firstly, those
       cases are stayed in the GLO, the criminal cases.
   MR JUSTICE FRASER:  This court is not concerned with and has
       no jurisdiction in respect of any of the criminal cases.
   MR GREEN:  Precisely.  There is absolutely no prospect of
       either of us seeking to do that or of your Lordship
       allowing it.  So we don't accept that is a good reason
       at all.  Mr Jenkins clearly had the firsthand knowledge
       and the court wouldn't have allowed the sort of
       investigation of which Post Office was fearful in this
       respect.  But it does suggest a defensiveness which is
       not completely isolated in these proceedings.
   MR JUSTICE FRASER:  I don't have the reference immediately
       to hand but I seem to recall one of the witnesses said
       that Mr Jenkins had retired, hadn't he, or am I wrong
       about that?
   MR GREEN:  He has retired, but he had been consulted.  He
       provided comments --
   MR JUSTICE FRASER:  I know the extent to which witnesses
       have relied on him etc, but I just wanted to check
       I wasn't imagining that.
   MR GREEN:  Your Lordship is absolutely right.  Of course,
       that's not actually the reason relied on.  And then
       there has then been correspondence about his
       availability, which I will very briefly touch on.
       {H/184/1}, {H/201/1} and {H/203/1} are effectively the
       three letters.
           {H/184/1}, if we start with that.  A very short
       letter:
           "We note that Mr Jenkins is the author of many
       important contemporaneous documents, and that both of
       Mr Godeseth's witness statements give hearsay evidence
       on the basis of conversations he has apparently had with
       Mr Jenkins.
           "Is Mr Jenkins available during the trial period?"
           {H/201/1} is the Wombles response of
       12th February 2019, and the second line of that says:
           "The information that you have sought regarding
       Mr Jenkins is clearly privileged."
           Then they say it would have been open to us to
       approach Mr Jenkins or apply to call him, which is
       correct.
           Then they add there if we were going to make
       an application out of time, we should bear in mind that:
           "... he acted as our clients' [Post Office's] expert
       witness in relation to a number of criminal prosecutions
       ... being looked at by the [CCRC]," as a suggestion to
       us that we should not seek to contact him, it appeared
       to be.
           Then at {H/203/1} the letter from Freeths:
           "We note your response to our letter regarding the
       reason for not calling Mr Jenkins and why he is not
       available to give evidence during the trial: you have
       declined to give any or even to tell us whether he is
       available during the trial.
           "You have cited that the explanation for him not
       himself giving evidence is privileged."
           So our just simple question, "Is he available?", was
       not: we don't know, or anything of that sort, it is that
       it is privileged.  So we assumed that he must be part of
       the shadow expert team.
           We have now been informed apparently he is not.
   MR JUSTICE FRASER:  He is not what?
   MR GREEN:  Part of the shadow experts team that the
       Post Office is entitled to use on the case and has been
       using and included in their budget.
           So we enquired whether he was in fact part of that
       team and the answer is no.  We hadn't appreciated that.
   MR JUSTICE FRASER:  I don't think he -- I think the item of
       cost was originally included in the budget and was then
       withdrawn.  I do not think it is correct to say it is
       included in the budget.
   MR GREEN:  No, my Lord, it was originally included and then
       disallowed.
   MR JUSTICE FRASER:  Well, no, it was not disallowed.  It was
       withdrawn because it was --
   MR GREEN:  We objected to it and it was not included in the
       approved budget.  That's absolutely correct.
           My Lord, can I move on to the issue taken with
       cross-examining witnesses by reference to documents,
       because this is something in respect of which
       Post Office complains that it is unfair to cross-examine
       witnesses by taking them to documents.
           The criticism is levelled at us for doing this at
       paragraph 850, which is {A/6/277}.  Paragraph 850 makes
       the point three lines up from the bottom on the
       right-hand side:
           "She was, however, taken in cross-examination to
       many documents which she had not seen before -
       a recurring theme of Cs' cross-examination.  It is
       submit that such an exercise is of very limited
       utility."
           Pausing there.  We say it is not an unusual way to
       cross-examine to put contemporaneous documents that have
       been disclosed as relevant to a witness whose evidence
       appears to suggest that they are aware of at least the
       general area in which those documents arise.  We say
       that's actually common.  Questions like that have been
       put up and down the country every second of the working
       day across all courts and tribunals.  So it is not
       an unusual approach to take witnesses to contemporaneous
       documents.
           But the complaint that's made is that Ms Van Den
       Bogerd was taken to many documents which she had not
       seen before.  Now, that is a prisoner to how many
       documents she has chosen to look at, because if
       a witness has not looked at, on the face of it, relevant
       contemporaneous documents at all then every document
       will fall into the category of document to which
       Post Office appears to complain that she was taken.  And
       if we take an example, Mrs Van Den Bogerd's witness
       statement speculated about the potential cause of
       a spike in declared losses on the introduction of
       Horizon Online.  Paragraph 183 at {E2/5/42}.
           This was effectively SPMs tidying up their accounts.
       That speculation was challenged in cross-examination on
       the footing that the claimants would expect a senior
       witness giving evidence on an issue of that type to
       review the available documentary record before
       speculating in that way and providing the court with
       a witness statement signed and verified with a statement
       of truth.
           Mrs Van Den Bogerd specifically said she had not
       done this in answer to one of your Lordship's questions
       which we find at {Day5/167:22} onwards.  At 167, line 22
       your Lordship says:
           "MR JUSTICE FRASER:  Understood.  And then the
       second point is when you were preparing your witness
       statement and in particular the paragraphs at 180 to
       183 --
           "Answer:  Yes.
           "MR JUSTICE FRASER:  -- did you do any investigation
       in respect of what might have been happening that you
       didn't know at the time in 2000 --
           "Answer:  Not back to 2000, no.
           "MR JUSTICE FRASER:  -- or in 2010 when the change
       was from Legacy Horizon to Horizon Online?
           "Answer:  So in 2010 I was in a different role and
       had broader responsibility and I knew what -- what we
       did, again we replicated a similar approach to make sure
       we supported branches at the time, but as for any detail
       of Information, I didn't research into that, no."
           So that was an example of one of the matters on
       which Mrs Van Den Bogerd was challenged by reference to
       contemporaneous documents.  She hadn't seen them, but
       that is not a proper or legitimate criticism of the
       claimants' side, we respectfully submit, and might
       fairly be thought to go the other way.
           In moving on to rewriting the fact evidence in the
       closing submissions, which is the next theme, some of
       these aspects are quite surprising.  One example is the
       problem management procedure.
           The defendants' closing addressed the problem
       management procedure albeit in the context of
       Mr Godeseth's evidence being unsatisfactory, and used
       that as an excuse to try and rewrite the evidence which
       the court has actually heard.
           We see that at page 68 of the defendants' closing
       {A/6/68} at paragraph 147.4, where it says:
           "In paragraph 63, he [Mr Godeseth] appeared to be
       saying that Fujitsu’s Post Office Account Customer
       Service Problem Management Procedure document 223 was
       not implemented following Mr Salawu's departure as
       Horizon Head Lead Service Delivery manager, when in fact
       it was merely section 1.4 of that document that was not
       implemented."
           Well, that came as news to the claimants, my Lord,
       not least because of the way the issue arose and because
       of how it was cross-examined on and not re-examined on.
   MR JUSTICE FRASER:  Does that last part of the sentence come
       from evidence or is that --
   MR GREEN:  No, that's new.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  So it arose because Mr Coyne was proceeding on
       the basis that there was a proper problem management
       system in place, and therefore there should be documents
       available that would collate bugs and errors and show
       lots of information, so we could get disclosure.  We
       thought that would be very helpful, and we can see that
       from Mr Coyne's first report at {D2/1/97} at
       paragraph 5.158 and 5.159:
           " ... is the POL monitor that tracks the number of
       records arising directly as a result of managed change
       activities."
           You can see the problem management procedure
       footnoted at footnote 150 at the bottom of the page:
           "No disclosed logs have been found in respect of
       these problem records that are listed as being reported
       monthly."
           5.159:
           "Requests have been made in relation to making such
       Management Information reports.  At the time of writing,
       these have not been made available for analysis."
           So Mr Coyne's assumption, which is actually shared
       by Dr Worden, was that the problem management procedure
       document was in force and therefore there should be
       a repository of documents, which we have not been aware
       of at that stage, which would be very helpful because
       they would show what was going on.
           Then in response to that, with the looming
       possibility of disclosure, we get Mr Godeseth's second
       witness statement served saying in fact it was not
       implemented, and we find that at paragraph 63,
       {E2/7/16}.  In paragraph 63 we get the conversation with
       Mr Bansal.
           And then four lines up from the bottom:
           "I understand from Steve that Saheed Salawu's
       replacement did not wish to implement the changes and
       therefore the records referred to by Mr Coyne ... of his
       report do not exist, as we continued to follow the
       previous existing reporting methodology."
           That is referring back up to the situation before
       the new procedure, which was to achieve the same,
       problem management seeks to establish the root cause of
       incidents and then start actions to improve or correct
       the situation.
           So your Lordship may remember the cross-examination
       obviously that followed what we heralded in our written
       openings at paragraph 6(4) at {A/1/6} where we made
       clear our understanding was that this had not been
       brought in and that Mr Godeseth suggested this followed
       the departure of the Horizon lead service delivery
       manager.
   MR JUSTICE FRASER:  Where are you looking now?
   MR GREEN:  This is paragraph 6(4).
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  The bottom two lines, the departure, this was not
       brought in.  Three lines up from the right-hand side.
       Mr Godeseth suggests and refers to those paragraphs.
           No whiff of disagreement from Post Office at this
       stage, in fact until closing submissions.  Evidence at
       trial was Mr Godeseth was cross-examined on
       paragraph 63.  I will give your Lordship the reference
       without going there.  {Day7/157:4} to line 21.  We also
       put to Mr Parker the problem management system wasn't
       brought in.  We did that at {Day12/53:4}.
   MR JUSTICE FRASER:  What did Mr Parker say?
   MR GREEN:  He didn't suggest it had been brought in either.
   MR JUSTICE FRASER:  Let's go to --
   MR GREEN:  Let's go to {Day12/53:4}, if we may.
           We can see it says "proper management", but we can
       see later on it is clearly problem management:
           "... just as an aside -- the proper", it says proper
       on the transcript, "wasn't brought in either.  We
       covered that with Mr Godeseth, you were here for that?
           "Answer:  Yes.
           "Question:  So there was no problem management
       system brought in notwithstanding it was internally
       recommended, and so all you're left with is this system
       of looking at the codes and seeing how they have been
       categorised on closure."
           Absolutely no demur at all.  It has been there in
       Mr Godeseth's evidence, not a scintilla of disagreement
       from anyone, no re-examination at that point of
       Mr Godeseth or Mr Parker.
           We also put it to Dr Worden on {Day19/166:15} to
       line 16 on that footing.  About halfway down the page.
       I'm not sure that's quite right.  Can we just check that
       reference.  I will come back to you on that.
   MR JUSTICE FRASER:  That doesn't appear to be the right
       reference.
   MR GREEN:  It is not the right reference.
   MR JUSTICE FRASER:  You say you put it to Dr Worden?
   MR GREEN:  Put it to Dr Worden as well.  Again, no
       re-examination on that.
           So we have an unusual situation, we respectfully
       submit, to say the least that we filed our written
       closing submissions on the basis of the evidence that
       was actually heard and was tested because with
       Mr Godeseth we said "Well, how come there are all these
       extra versions of this if it wasn't introduced?"
       Because it looked weird to us.  We challenged it,
       apparently it was not introduced.  And we filed our
       written closing submissions, and we learn then for the
       first time from Post Office that actually it was brought
       in.  It was only an individual paragraph that wasn't.
           We respectfully say obviously that's completely
       unsatisfactory, but also if it is true it is again less
       than forthcoming and showing a striking lack of candour
       about what documents might be available.
           My Lord, just to give another example of a sort of
       rewrite which sort of bleeds into the attacks on the
       documents where they are unfavourable to Post Office.
       So we have this strange part, which I have already shown
       your Lordship, where they say if internal Post Office
       documents say Horizon was problematic, the authors have
       got it wrong.  And that's part of this theme.
           If we look at the document recording the visit to
       Mr Bates' branch, it is at {F/99.1/1}.  It was
       a document put to both Mrs Van Den Bogerd and Dr Worden.
       If I can just give the references {Day5/168:14} and
       {Day18/123:12}.
           If we look at {F/99.1/1}, the point about that
       document was that the visit being made, the
       Post Office -- it should be, I think, F/99 --
   MR JUSTICE FRASER:  You said 99.1.
   MR GREEN:  That may have been my error, my Lord.
   MR JUSTICE FRASER:  Is it {F/99/1}?
   MR GREEN:  I think it may be {F/99/1}.  I will just make the
       point and we will check the reference on that.
           It is {F/99.1/1}, I think.  The short point,
       my Lord, is this is the one where Mr Bates is visited,
       and the officer visiting says "I couldn't get a correct
       read on the cash account because Horizon intermittently
       adds the cash from the previous day".
   MR JUSTICE FRASER:  This is the audit report, isn't it?
   MR GREEN:  Exactly.  So the Post Office auditor -- two of my
       Opus screens have gone down -- but at {F/99.1/1}.  We
       seem to be able to see it on our screens.
   MR JUSTICE FRASER:  Which page are you going to?
   MR GREEN:  It is {F/99.1/4}.
   MR JUSTICE FRASER:  Page 4.  Yes.  I have got it on my own
       separate screen.
   MR GREEN:  I'm most grateful.  The short point is that it is
       striking that someone attending to do an audit of the
       correct cash totals -- thank you very much; if we could
       slide to page 4 of that, I think -- is unable -- if we
       go towards the bottom, "Comments", just above "National
       Savings":
           "A correct assessment of cash holdings could not be
       made because the Horizon system intermittently adds the
       previous days cash holdings to the daily declaration."
           There was no attempt to re-examine Mrs Van Den
       Bogerd or Dr Worden about that, but what is now said is
       that this is actually a designed function in Horizon in
       the closing submissions that Post Office has filed at
       {A/6/279}, paragraph 856 about carrying forward balances
       from a previous day.  And we respectfully submit (a)
       that's completely new, and (b) it just doesn't chime
       with the reality of an auditor who well knows how
       Horizon should operate encountering that difficulty in
       Mr Bates's branch when he goes to get a cash reading.
           The word "intermittently adding" is extremely
       difficult to reconcile with simply carrying a value
       forward from the day before.
           My Lord, just to give your Lordship the correct
       reference to the problem management being put to
       Dr Worden, that was at {Day19/176:13} to line 17.
       I apologise for that mistake.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  Then moving forward to --
   MR JUSTICE FRASER:  Just before you move on though, isn't
       the point it was not re-examined upon, doesn't that fall
       within the same basket of it is a time-limited trial,
       one doesn't have time to re-examine on everything?
   MR GREEN:  My Lord, absolutely right, but if there's going
       to be a --
   MR JUSTICE FRASER:  Positive explanation.
   MR GREEN:  Positive case suddenly introduced for the first
       time, it is quite nice to have a passing mention in
       re-examination.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  Take, for example, keystrokes where the position
       is absolutely bizarre because you get Mrs Van Den Bogerd
       accepting initially that there were keystrokes
       available.  Then you get the sheepish re-examination
       that maybe they are not, and then you get the reference
       to Mrs Mather whose witness statement expressly said
       that keystrokes were available and then in chief is
       invited to say what she meant by the word "keystrokes".
       She means or transactions and sales data.
           Then the hammer drops later on when we get
       disclosure of a whole load of keystrokes which were
       available from Fujitsu.  I mean, it is against that
       background that there is some concern about introducing
       completely new explanations without any foundation in
       the evidence.
           My Lord, can I just deal with a couple of
       documentary examples.  First of all, the phantom
       transaction PEAK and the Romec engineer.
           That was quite surprising to say the least.  What
       effectively was said, as your Lordship may remember, is
       that the Romec engineer's view of having actually
       observed phantom transactions happening was not
       reliable.  That was how it was put to Mr Coyne.  And
       that PEAK is {F/97/1}, and the reference to the Romec
       engineer advising that he has witnessed further phantom
       transactions whilst on site is on page {F/97/5} of that
       PEAK.
           It is right your Lordship should be reminded, if
       I may, that it wasn't only that Romec had seen it,
       because we know that Mr Carroll had also seen it.  So
       when we look at page {F/97/7} of that PEAK, in the
       bottom yellow box:
           "I now have pressing evidence to suggest that
       unwanted peripheral input is occurring, the likely
       source being the screen.  This has been seen at Old
       Iselworth (OI) and Wawne (W) with OI being the best
       site; when the PM has been asked to leave the screen on
       overnight I have observed system activity corresponding
       to screen presses happening with no corresponding
       evidence of either routine system activity or human
       interference, the way forward now is to correlate this
       with the Microtouch supplied monitoring software and to
       this end Wendy is arranging for installation of Kit at
       OI on Friday, we can then, provided the PM agrees, leave
       screens on over the weekend and record what happens.
       Once these results have been analysed I feel sure that
       we will be in a position to move forwards at OI. all
       other cases should be considered on their individual
       merits but you must appreciate that this is a fairly
       intensive analytical activity and I cannot hope to
       provide answers on all cases in the short term."
           So it was not just Romec who had reached that view,
       but what's relied on by Post Office when they say a host
       of possible explanations at page 475 of their closing
       submissions, paragraphs 10 to 11, is Mr Carroll's view,
       effectively, that we find on page 9 of the PEAK {F/97/9}
       where, in closing this down, Mr Carroll says:
           "Phantom [transactions] have not been proven in
       certifications which preclude user error.  In all cases
       where these have occurred a user error related cause can
       be attributed to the phenomenon."
           Three things going on.  First, rather overlooking
       what Pat Carroll had previously said about it.  Secondly
       seeking to elevate the slightly bizarre way of
       determining how this should be treated, as user error or
       not, to a finding that it was in fact user error, and
       Mr Coyne being challenged on the footing that he agreed
       he was he was not in a position to say that Mr Carroll
       was wrong, which Mr Coyne very fairly accepted: well,
       I can't say he is wrong that it couldn't preclude user
       error.
           But we respectfully say that is a pretty astonishing
       way of dealing with the PEAK which is pretty
       unsatisfactory, to say that actually Mr Carroll and the
       Romec engineer plainly got it wrong.
           The Helen Rose report goes a step further, if that's
       possible.  The treatment of that is, we say, absolutely
       extraordinary.  The Helen Rose report is at page 1082
       and includes --
   MR JUSTICE FRASER:  Of?
   MR GREEN:  Sorry, {F/1082/1}, and on page {F/1082/2} of that
       document under "Reviewing the data", it says:
           "On looking at the credence data, it clearly
       indicates that the reversal was completed by JAR001
       (postmaster) at 10:37 ... and was reversal indicator 1
       (existing reversal) and settled to cash.  An existing
       reversal is where the session number/Automated Payment
       number has to be entered to reverse the item."
           So the point about this was the initial view was
       an assumption that there had been a reversal by the SPM.
       And the Helen Rose report then, as your Lordship will
       remember from dealing with this document on several
       occasions, goes through to identify that that actually
       had not been the case.
           Mr Coyne flagged this up at {D2/4.1/113} in his
       second report.  He says:
           "Credence data, most commonly used by Post Office
       for their investigations, is either wrong or does not
       provide sufficient information to complete the full
       picture ..."
           This is an example of one of his concerns.  On what
       was presented in the Helen Rose report, that seems to be
       correct.  But Mr Coyne's account of the Helen Rose
       report was made subject to very extensive
       cross-examination, pressing him to accept that
       Helen Rose had in fact misinterpreted the underlying
       data and put 2 and 2 together to make 5.  That's what
       was put.  In fact, my learned friend said put 2 and 2
       together to make 4 and then changed it to 5, but the
       point is it was being suggested that she had got it
       wrong, not right.  That's at {Day15/38:15} to
       {Day15/39:24}.
           What's effectively being put to Mr Coyne there is
       that Helen Rose has got it wrong.  And just pausing
       there, Mr Coyne's interpretation of what appears on the
       face of the report was totally reasonable and, we say,
       right, and Post Office not only runs the, we say,
       extraordinary misinterpretation point in their closing
       submissions at paragraph 529 on page 194, but also used
       that as a basis to subject Mr Coyne to very heavy
       criticism for his evidence.  There are pages and pages
       of criticism on that footing on an extremely strained
       interpretation of a document which appears to say the
       opposite to what Helen Rose actually said.
           Bear in mind, my Lord, this was a document about
       which, for example, Angela Van Den Bogerd's evidence was
       initially completely wrong.  So it is actually the
       Post Office's treatment of the Helen Rose report which
       is properly the subject of criticism, and it is bizarre
       that it is Post Office's case that it is Helen Rose's
       fault that she misinterpreted the data, given that she
       was a security fraud analyst who was evidently involved
       in prosecutions.
           My Lord, I have touched on the internet documents
       critical of the Post Office and we identified a number
       in opening.  We put them to Dr Worden and addressed them
       again in closing by reference to what the documents
       actually say; for example, paragraph 614 at {A/5/213}.
   MR JUSTICE FRASER:  This is your closing, yes?
   MR GREEN:  This is our closing.  It is to that that
       Post Office give their response.  It is a section in our
       closing that begins at paragraph 614 on page 213.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  It is that section to which Post Office are
       responding with reference to which I took your Lordship
       out of order to at the beginning, where they say
       {A/6/134}:
           "The Post Office documents were not drafted with the
       benefit of the vast amount of work that has been carried
       out by the experts for this trial.  If the authors
       considered that Horizon was not a good system, they were
       wrong (although that is not even a fair summary of what
       the documents say)."
           We say that is an absolutely astonishing submission,
       particularly where Dr Worden hadn't read any of them and
       the contention is that he is in a better position, for
       example, than Mr Rob Houghton, who is Post Office's
       chief information officer who presented to the board on
       Post Office's IT strategy in January 2017, which is one
       of the documents which we see at {F/1611/87}.
           Then, just to make the one-way street point good,
       that is to be contrasted with the, as it turned out,
       wholly misplaced reliance on the ISAE service audits in
       relation to change management and remote access, which
       we have addressed separately why those audits (a)
       weren't addressed to the same point as the 2011 audit,
       and secondly, why they plainly didn't pick up what we've
       seen about remote access in the APPSUP role in the
       APPSUP PEAK.
           But what they say about that, and this is part of
       Post Office's cross-examination of Mr Coyne, was to say
       to Mr Coyne -- we can look at it at {Day16/174:11} to
       line 15.  The tee-up is that unhelpful documents to
       Post Office, even if drafted by Post Office, even if
       drafted by their own IT chief information officer and
       presented to the board, they are wrong and the experts,
       including Dr Worden, who had never read any of them, are
       right.  Leave aside the fact that Dr Worden accepted
       they were irreconcilable with his views.
           Then when something is thought, albeit wrongly, to
       be in Post Office's favour, what you get is the
       cross-examination at page 174, lines 11 to 15:
           "Question:  Mr Coyne, would you agree with me that
       in principle the best people to judge whether action is
       being taken to address recommendations made by auditors
       is the auditors themselves rather than you, would you
       agree with that?
           "Answer:  Yes.
           "Question:  Let's look to see what the auditors say
       in later years."
           So effectively where the documents are in
       Post Office's favour you take them on their face and the
       authors are right, even if they are the wrong documents
       and so forth, contradicted by the PEAK at the time, well
       known to Fujitsu.  But when the documents are against
       Post Office, the authors, even if they are Post Office's
       own employees charged with those specific roles,
       internal experts, they are apparently wrong.  And we
       respectfully say even by the standards of Post Office
       conduct in this litigation, that is a bizarre approach
       to urge upon this court to deal with the relevant
       contemporaneous documents.
           My Lord, that's a natural break.  Would it be
       convenient to rise a couple of minutes early?
   MR JUSTICE FRASER:  I think it would.  Thank you very much.
           2 o'clock.
   (1.00 pm)
                     (The short adjournment)
   (2.00 pm)
   MR JUSTICE FRASER:  Mr Green.
   MR GREEN:  My Lord, can I just pick up one brief observation
       in relation to disclosure.
           The Post Office made various criticisms in their
       closing submissions relating to claimants' disclosure,
       and the short point is that the claimants were directed
       to disclose the documents they relied on and any known
       adverse documents, which is what they in fact did.  And
       that order is from the fourth CMC order, paragraph 5,
       which is at {C7/18/2}.
           We needn't go to it.  There is correspondence where
       Post Office has sought to press the claimants in
       relation to those issues in the light of evidence given
       at trial.  And the relevant -- I'm not going to take
       your Lordship to the correspondence, but just in case,
       so your Lordship has the picture in case something is
       made of it, they are letters of 15th March, 17th March,
       14th May and 29th May of this year, and they are to be
       found respectively at {H/242.6/1}, 15th March; {H/255/1}
       is 27th March --
   MR JUSTICE FRASER:  You said 27th March?
   MR GREEN:  27th March.
   MR JUSTICE FRASER:  I thought you said 17th March.
   MR GREEN:  If I did I misspoke, I'm sorry.  27th March.
       {H/280/1} is 14th May and {H/303/1} is 29th May.
   MR JUSTICE FRASER:  Those are letters in both directions,
       are they?
   MR GREEN:  Toing and froing in relation to that.  It is of
       course open to a party to make submissions in relation
       to how document have been disclosed, as, indeed,
       Post Office seeks to do going back that.  A bit more
       resistant to the stream going the other way, as
       your Lordship has already seen.
           Just very briefly in relation to that, the adoption
       of model C disclosure by the court, including in
       particular the obligation to disclose known adverse
       documents, does not make a party's explanation for the
       emergence at a late stage of documents irrelevant or
       immune to scrutiny from the court, nor is an approach by
       the claimants to seek at successive hearings to improve
       on the position in relation to documents, some of which
       they have been seeking since 2016, an answer by way of
       saying, well, you never sought specific disclosure.
       Neither of those are answers in relation to a fair
       appraisal being made of how Post Office documents have
       come to be disclosed as late as they have.
           That's a very brief response in relation to that
       point, my Lord.  We just don't accept that for a moment,
       particularly when the evidence, for example the
       mis-keying, flies in the face of the most extraordinary
       changes of evidence before the court.  Perfectly
       legitimate for the court to want to know how that
       document came to be disclosed when it did.
           So with that brief footnote in relation to
       disclosure I just wanted to make a very few brief
       submissions in relation to the treatment of Mr Coyne,
       who your Lordship has obviously appreciated has been
       heavily criticised, we respectfully say very unfairly.
           His approach was correctly to try and see if there
       was evidence of any relevant bugs, to try and identify
       what remote access evidence there was, to identify
       relevant lines of enquiry, which we see in his early
       requests as long ago as April 2018, as we flagged up in
       our closing submissions, and to seek documents in the
       RFIs that they did in the summer of 2018.
           His attempt to be careful and try and work out what
       has happened and what there was and was not evidence of,
       including what there was not strong evidence of, which
       is the wording of paragraph 1.15 on which he was
       extensively cross-examined, that was not only the right
       approach, but a helpful approach and one that was framed
       by reference to the Horizon Issues as they were actually
       ordered by the court.
           There is a criticism of him in relation to the
       Helen Rose report to which I have already averted, but
       we respectfully invite the court to contrast that with
       the defendants'/Post Office's treatment of the evidence
       of Mrs Van Den Bogerd in relation to Helen Rose, which
       turned out to be wrong, which Post Office, at
       paragraph 852 {A/6/278} of their closings explained that
       her evidence was to give early notice of Post Office's
       case but now effectively overtaken by more detailed
       consideration in the expert evidence.
           That is an attempt (a) to gloss over the fact that
       the evidence was wrong, but (b) it stands in stark
       contrast to the pages, ten pages of criticism,
       critiquing Mr Coyne's account of the Helen Rose report
       that we find between paragraph 521 at {A/6/192} and 552
       at {A/6/202}.
           The reality is that Mrs Van Den Bogerd
       misrepresented, whether unwittingly or by not taking
       care, what the Helen Rose report said and what her
       evidence said was wrong, as she accepted.
           We see that evidence at {Day5/90:1}.  So, again, we
       have got a sort of one-way street where Mr Coyne
       actually gets the Helen Rose report right and is
       criticised; Mrs Van Den Bogerd gets it wrong and accepts
       it is wrong, and that's just clarification and overtaken
       by more detailed consideration, all in circumstances
       where the premise of the criticism of Mr Coyne is that
       Helen Rose, Post Office's own investigator, as
       I submitted before lunch, completely misinterpreted the
       data before her.
           That is one example, my Lord, of a fairly wholesale
       attempt to discredit Mr Coyne by suggesting, we say
       unfairly, that his essential endeavour was to throw mud
       at Horizon in the expectation that at least some of it
       would stick.  And those words are taken from
       paragraph 267 at {A/6/103}, bottom four lines:
           "His essential endeavour was to throw mud at Horizon
       in the expectation that at least some of it would stick,
       and not to worry too much or at all about giving the
       other side of the picture or even presenting a fair view
       of the documents to which he referred."
           That's both a surprising submission and an unfair
       one.  And where, for example, Mr Coyne said that the
       position on transaction corrections might make the
       position better or worse, that was put to Dr Worden.  He
       is being scrupulously fair there and Dr Worden accepted
       that he was.  So it flies in the face of concessions
       made by Dr Worden and it also flies in the face of the
       way in which Mr Coyne gave his evidence.
           That's obviously a matter for the court, but we
       respectfully submit that Mr Coyne was conscientiously
       trying to answer questions that he was asked, not always
       in circumstances where he was very comfortable with the
       premise that he was being boxed into for those
       questions.  But he sought to try and answer them fairly,
       and a fair reading of his evidence would have regard to
       the joint statements, the fact that 1.15 was necessarily
       a compromise between two experts who differed on the
       definition of lasting, amongst other things, who agreed,
       as we see at joint 3, paragraph 4.1, which is {D1/4/7}
       that Issue 4 fed back into Issue 1, and when the joint
       statement is read as a whole rather than saying
       an isolated paragraph and inviting an expert who has
       taken a completely different approach to grind very
       finely those aspects of his analysis which are
       sufficient to show strong evidence of the type of bugs
       that was being considered.
           I mention that feature of 1.15 because it was
       particularly telling for Mr Coyne who was very careful
       in his answers to stop at the point at which there was
       no evidence going further.
           So when the question was put to him, where he felt
       he couldn't go further because he didn't have the
       evidence one way or the other, he would stop at that
       point.  He would not go on to draw what Dr Worden in
       some places called weak inferences about various things,
       or other inferences, or proceed on assumptions.
   MR JUSTICE FRASER:  You said 1.15 a couple of times, I
       think.
   MR GREEN:  Yes, 1.15, my Lord, which was the bit that my
       learned friend cross-examined him about in joint 2.
   MR JUSTICE FRASER:  In joint 2.  I thought you said joint 4.
   MR GREEN:  I'm sorry.  The Issue 4 point is paragraph 4.1 of
       joint 3.
   MR JUSTICE FRASER:  Of joint 3.
   MR GREEN:  I should have made clear that the 1.15 point is
       the one that my learned friend cross-examined on fairly
       extensively, which is in --
   MR JUSTICE FRASER:  Joint 2.
   MR GREEN:  Joint 2.  That's at page 29.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  Your Lordship will remember that the 1.9 on the
       previous page is the experts' differing view on branch
       impact.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  So we respectfully say it is a little artificial
       and unfair where the experts try to reach a bracket
       where there is more than one variable in their
       difference of view and reach that compromise at 1.15, to
       subject it to the sort of drafting scrutiny that
       Parliamentary statute might bear, and that the fair way
       to approach it is in the light of the joint statement
       read as a whole in the context of the approaches of the
       two experts.
           Parenthetically, my Lord, when my learned friend
       revisited the 40 bugs analysis with Mr Coyne on
       {Day15/165:17}, our submission about the layered
       assumptions and confinements on the basis of which he
       was cross-examined on 1.15 become clear when you look at
       his answer at 165.17.  He makes clear that he still
       regards the position he described in his report as
       correct.
           Turning to Dr Worden.  Your Lordship has our
       submissions on the statistical analysis and so forth.
       And we are obviously not going to repeat those, but
       there are a couple of points we would like briefly to
       pick up on.
           The Post Office submits at {A/6/99} at paragraph 249
       of their closing that Dr Worden did not confine his
       efforts to looking only for problems or only for
       evidence of Horizon working well.
           We respectfully say that's not correct.  Not only
       was there no consideration of documents pointing in the
       other direction to any significant extent, but if we
       look at joint 1 at {D1/1/10}, Dr Worden, in the top box,
       penultimate paragraph, explains what he is going to do.
           He says:
           "In my report I shall survey the evidence I have
       found that Fujitsu paid sufficient attention to the
       dimensions of robustness, and that they did so
       successfully.  I shall also address evidence from
       Mr Coyne implying that Horizon fell short of its
       robustness objectives."
           What's missing from that summary is an enquiry by
       him in the same vein as Mr Coyne.  So not only was that
       his approach, but he actually telegraphed it in that
       description of what he proposed to do.  And that's
       vividly found in the approach in his report.
           Secondly, at paragraph 251 the Post Office goes on
       to say he did not inappropriately prefer the evidence of
       the Post Office witnesses.  {A/6/99}
           That's just not right.  He did so.  It was put to
       him, and we have got {Day18/56:5} to line 7.  He was
       cross-examined specifically about where he had said in
       his report he had established that something had
       happened based on the evidence of Post Office witnesses,
       and he accepted at that place in the transcript,
       {Day18/56:5} to 7 -- I think that piece begins at
       page 53, line 3 -- that he shouldn't have done that.
           So this is not even an available submission, let
       alone one which, in our respectful submission, should be
       referred by the court.  The fact that his report is
       replete with references to on the basis that the
       defendants' evidence is right, underscores that that was
       a running theme.  And the fact that when Mr Parker was
       saying Mr Roll was wrong, Dr Worden was happy to rely on
       that, but when Mr Parker in his second witness statement
       then agreed with Mr Roll, Dr Worden said he was confused
       and that's why he couldn't agree with it but took
       absolutely no steps whatsoever to seek any clarification
       that would have alleviated any genuine confusion.
           So we respectfully say that that is not correct to
       say he did not inappropriately prefer the evidence of
       Post Office witnesses.  He did and he admitted doing so.
           Finally, in relation to Dr Worden, at paragraph 316
       of the Post Office's closings, which is {A/6/120}, the
       Post Office says:
           "Dr Worden stated in cross-examination that he had
       been 'told' to send his report direct to the Court ..."
           Pausing there.  It was actually in a question from
       your Lordship that he explained that.  Then Post Office
       says:
           "... but that word could give the wrong impression."
           Pausing there.  Post Office's closing submissions
       are replete with footnotes everywhere, but that word
       "told" is not footnoted.  So it is worth your Lordship
       having a reference to the relevant part of the
       transcript, which is {Day20/189:12}.
           If we look at line 12, your Lordship asked:
           "Have you ever served one of your expert reports
       directly on the court before?
           "Answer:  I have never done that myself before.
       I had it done to me."
           Your Lordship says:
           "But you have never done it before?"
           Then Dr Worden then volunteers:
           "Answer:  A kind of late report, no.  I mean the
       issue of serving direct on the court rather than through
       lawyers, I don't recall how that happened in the past.
       I suspect it was all done through lawyers."
           Then your Lordship at line 21:
           "But in this case everyone knows you sent an email
       to my clerk?"
           Then line 23 Dr Worden then says:
           "Answer:  I did, yes."
               Then he volunteers:
           "That's what I was advised to do, that was how I was
       advised to do it."
           Your Lordship:
           "You were advised to do it?"
           "Answer:  By Post Office lawyers, yes."
           So the word that is quoted, "told", is not the word
       that was used.  The word that was used was "advised" and
       it was volunteered by Dr Worden.  Your Lordship didn't
       ask who told him to do it; he volunteered that answer.
       And at the end of that exchange your Lordship turned to
       both counsel and said: are there any follow-up questions
       from that exchange?"  And there were none from either me
       or my learned friend.
           Now, that account is not identical to the accounts
       given to the court by Post Office lawyers, especially in
       Mr Parsons' 17th witness statement at {C11/22/1}, which
       made no mention of any advice given to Dr Worden and at
       least --
   MR JUSTICE FRASER:  Where are we going now?
   MR GREEN:  {C11/22/1}.
   MR JUSTICE FRASER:  Page?
   MR GREEN:  If we go forward to page {C11/22/6} and if we
       look at paragraph 22:
           "His covering email to the court provided that:
           "The further work ... was done at his own
       instigation and not prompted by Post Office or its
       lawyers."
           22.2:
           "In Dr Worden's opinion, this work led to a material
       change in his opinions and that he believed he was
       obliged to inform the Court ..."
           22.3:
           "A draft version of the report was provided to
       Mr Coyne ..."
           And so forth.
           Then it deals with Dr Worden's email to the court.
       That does not make clear what we find in the transcript
       at 190, lines 9 to 10, which is where he tells
       your Lordship that he had been given advice on the
       content of the email that was going to be sent as
       a covering email.
           So we are now faced with a situation in which
       Post Office's closing submissions at 316 say that the
       word "told" could give the wrong impression {A/6/120}.
       And in our submission, if Post Office are saying that
       Dr Worden's evidence is misleading, they should disclose
       all communications with Dr Worden on that issue, which,
       in the circumstances, either are not privileged, or if
       they are privileged, that privilege has been waived by
       saying that it could give a misleading impression.
           And if Post Office has any resistance to that
       course, they should be put to their election to withdraw
       the suggestion in that paragraph that Dr Worden's
       evidence gives a misleading impression, or waive any
       privilege there might be in relation to their dealings
       with Dr Worden on those two points.
           My Lord, I'm now turning to a new topic which is
       bugs, and I mentioned this morning that we obviously
       covered the ground with Dr Worden on bugs 1 to 10 in
       cross-examination to try and give a sufficient number of
       bugs and a grouping of bugs that was not arbitrary or
       cherry-picked to try and give the court a reasonably
       representative sample by which to judge the reliability
       of the analysis urged on the court by Dr Worden.
           We explained those in our closing submissions at
       paragraph 535 onwards.  However, in Post Office's
       closing submissions, notwithstanding that there are
       really only three bugs touched on in cross-examination
       where they had four days, there is now an analysis,
       detailed submissions on every one of the 29 bugs in the
       bugs table, and that's in their closing submissions at
       appendix 2 and it runs from page 400 to page 537.
           {A/6/400}
           Given the time since receiving that document and the
       time available today, I hope your Lordship will forgive
       me for taking the next five bugs, 11 to 15, and
       identifying whether or not Post Office submissions in
       this new insight are reliable at all.
           I respectfully invite your Lordship to note as we go
       through two features.  The submission that is made where
       there is a document I will show your Lordship frequently
       is simply not borne out, particularly where a gloss is
       put onto things to suggest user error when, as we saw
       with the Romec PEAK before Pat Carroll's final sign-off,
       cannot preclude user error.  It is very different from
       reaching a conclusion that it was.
           We will show your Lordship why that's also
       a particularly unreliable conclusion for other reasons.
       So what use they make when there are documents, and the
       second point is where we just have assertions not
       footnoted and not tethered to evidence the court
       actually has before it.  And those are the two
       particular features.
           Now, in Post Office's treatment of the bugs, they
       are sorted out into different categories, and I will
       just get your Lordship's eye on it, if I may. {A/6/400}
       is the beginning of this 137-page appendix of the 29
       bugs.
           Where they break down is that the submission now is
       that eight are not bugs at all.  That's paragraph 3.1 on
       page 400.  So eight are said to be not bugs at all.
       Three had no branch impact.  Nine had, or potentially
       had only transient impact, and nine caused or had the
       potential to cause lasting impact but were resolved by
       Post Office and Fujitsu.
           They then list: paragraph 4 are the ones that are
       not bugs at all; paragraph 5, no impact; paragraph 6,
       transient impact; paragraph 7, lasting.  {A/6/401}
           My Lord, can I just identify even at that stage that
       Post Office has listed nine bugs having a transient
       impact.
   MR JUSTICE FRASER:  They are the ones in paragraph 6,
       I think.
   MR GREEN:  Exactly.  And nine bugs in paragraph 7.
           So pausing there, on a correct construction of
       Issue 1 there are 18 bugs meeting the definition of
       Issue 1 even on the Post Office analysis in its closing
       submissions here.
           I'm going to take your Lordship, if I may, just
       briefly through bugs 11 to 15.  I have to deal with bugs
       11 to 12.  Bugs 13 and 14 were accepted by Dr Worden,
       but bug 13 Post Office has changed its mind on.  So I'm
       going to have to deal briefly with 13.
   MR JUSTICE FRASER:  Which ones are you dealing with?
   MR GREEN:  So 11 and 12 weren't agreed by Dr Worden anyway.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  13 I still have to deal with because although it
       was agreed by Dr Worden, it is not anymore by
       Post Office.
   MR JUSTICE FRASER:  13?
   MR GREEN:  Then 14 was accepted by Dr Worden and is still
       accepted, so I won't trouble your Lordship with that,
       but 15 is still in dispute.  So it is 11, 12, 13,
       because of the change of position, and 15.
           So on number 11, so this is one said to have no
       branch impact, we see that at {A/6/401}, paragraph 6.
       And Post Office describe the relevant PEAK --
   MR JUSTICE FRASER:  This is Girobank, yes?
   MR GREEN:  Sorry?
   MR JUSTICE FRASER:  Girobank?
   MR GREEN:  My Lord, yes.  Girobank discrepancies, exactly.
   MR JUSTICE FRASER:  Okay.
   MR GREEN:  At page 452, paragraph 9, {A/6/452} your Lordship
       will see the Issue 1 heading under which Post Office
       analyses what happens as follows.
           Paragraph 10 identifies the main PEAK for Girobank
       noticing there was a £505.72 discrepancy, and says at
       (1):
           "This was a known issue dealt with by KEL
       MWright531p. This KEL is now deleted and irretrievable,
       but details about it can be gleaned from its associated
       Peaks."
           Then 10(2):
           "The issue arose when a giro transaction was entered
       and then reversed, with the reversal being entered after
       the report cut-off time."
           So reversal was not included in the following day's
       report.
           Paragraph 10(3), rather importantly:
           "This led to an error notice being issued on the
       mistaken basis that the branch had a discrepancy."
           So pausing there, Post Office actually themselves
       set this out that the way this arose was because
       an error notice was issued on a mistaken basis in
       relation to the original 505.72 because of the fact that
       the post-cut-off time problem meant the following day's
       report didn't capture the reversal.
           Paragraph 10(4) says:
           "The fact that the reversal, performed after the
       daily cut-off, did not show on that day's report
       reflects the intended operation of Horizon.
       Subpostmasters were instructed that if a reversal is
       carried out to giro transactions after cut-off, a manual
       summary will need to be produced for Girobank.  Issue 1
       is therefore not a 'bug'."
           Now, obviously how well they were instructed to do
       that and all that sort of thing, whether they were at
       all and in what terms, is at large.  But the suggestion
       there is the way that the system worked in this respect,
       creating this mistaken footing for an error notice, is
       not a bug, a defect or error in the data because that's
       the full definition in Issue 1.  And we respectfully
       disagree with that.  But that's what's said.  So not
       a bug, conflating all three into one.
           Then paragraph 10(5):
           "Rather, Issue 1 relates to reporting.  The
       underlying data is correct and the branch's accounts
       would have been correct at the end of the trading
       period, once the reversal had been recognised (at the
       time of this Peak, the trading period was weekly).
       Mr Coyne appeared to accept this in cross-examination.
       In this particular case, the only possible impact would
       be if the branch had accepted the error notice received
       because of the reporting issue."
           Now, if we just move forward if we may now to
       Issue 2, which is at paragraph 17 on {A/6/455}.  This is
       what's described as the secondary problem initially by
       Mr Coyne.
           At paragraph 17 your Lordship will see:
           "Issue 2 was that an £81 giro deposit was included
       on two consecutive daily reports. This is because the
       transaction was entered onto Horizon in a precise (and
       very small) window of time between two system calls
       being undertaken, resulting in a duplication.  The
       overall branch position would still have been correct,
       but the daily reports to Girobank may have been wrong.
       If they were (ie if the same transaction was included on
       two consecutive daily reports), it is expected that this
       would have been spotted and a TC would not have been
       issued to the branch."
           So pausing there, that is a pretty astonishing
       example of the one-way street.
           So we have got the fact of an error notice being
       mistakenly issued as the premise upon which the £81
       problem is discovered.  You have got the assertion that
       this whole thing is not a bug when that plainly is
       a bug.  In fact, we say both are bugs or defects or
       errors in the data, and obviously so.  Post Office says
       neither of them are and does it effectively on opposite
       footings for 1 and 2.
           We say that is strikingly a one-way approach to
       resolving that issue.  It is then helpful to look at the
       underlying PEAK, which is at {F/25/1}.
           If we begin on page 1.  In the top light green box
       there is a reference:
           "04/05/00, 13:44 system error - giro bank said there
       is a discrepancy on the giro figures."
           Come down a bit, username "1ha001":
           "Girobank have been in touch to say that there is
       software problem as the figures are not correct.  Daily
       figures when totalled are more than the cash account
       giro figures."
           Then if we go down to the words just below the
       "daily figures 85990.88."
   MR JUSTICE FRASER:  Sorry, where are you now?
   MR GREEN:  Halfway down the box, my Lord.
   MR JUSTICE FRASER:  The same box?
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  "Daily figures 85990.88."
   MR GREEN:  Exactly, and if we come down below that:
           "The pm has checked all dockets and all reversals
       that may have been done and cannot find anything.
       Therefore he would like this investigated further as an
       error notice has now been provided and he does not want
       this to happen again."
           So this is the postmaster or postmistress
       challenging the error notice having tried to check
       everything and not being able to find any justification
       for the error notice.
           Then if we go to the bottom box, just underneath "F)
       Response":
           "This difference (£505.72) between the Cash Account
       and the Daily reports is explained [in the MWright KEL].
       There was a giro for this amount that was entered on the
       13th Apr then reversed AFTER cutoff then re-entered
       again and reversed again. The Daily report would have
       shown the original £505.72 but the daily reports never
       show reversals.
           "It would be nice to close the call as known error,
       however while investigating the message store I have
       identified another problem ... there is a Giro Deposit
       for £81 (1-17240) that is being calculated in TWO
       consecutive cutoffs (18th AND 19th April).  I have
       attached the full message store as evidence, however the
       error happens in message ..."
           Then there is a typed number.
           If we go over the page, please, {F/25/2}, in the top
       box, in the second paragraph, three lines down on the
       right:
           "There are two separate calls --"
   MR JUSTICE FRASER:  Where are you looking now?
   MR GREEN:  The top box, my Lord.  In the second paragraph in
       the top box which begins "after further investigation".
   MR JUSTICE FRASER:  Yes, I have that.
   MR GREEN:  On the right-hand side, three lines down.
   MR JUSTICE FRASER:  I see, yes.
   MR GREEN:  "There are two separate calls to find the latest
       messages, and this gives a very small window of
       opportunity for another transaction to have been
       registered (The £81 giro was entered at EXACTLY the same
       time as the TideMark was generated).  The chance of
       having a transaction entered at the same time... "
   MR JUSTICE FRASER:  No, not entered at the same time,
       entered at the time.
   MR GREEN:  I'm sorry:
           "... entered at the time between the two calls AND
       causes the SEQ number to be greater than the tidemark is
       very small but real."
           We then see in the next box it is passed to EPOS FP
       to correct the problem caused.
   MR JUSTICE FRASER:  By the difference between the mark and
       sequence attribute.
   MR GREEN:  Exactly, and there is a fix that should address
       all cut-off reporting, not just Girobank reports.
           So we can see there that at times it requires a code
       fix.
           It is not limited to Girobank, the problem, and it
       is a small but real problem which has been uncovered
       effectively by accident.
           If one looks back at Post Office's closing at
       paragraph 17 on page {A/6/455}, it effectively
       acknowledges that there is a discrepancy caused.  It
       says it is expected that it be spotted before TC is
       issued.  But there's actually no evidential foundation
       for this, particularly in circumstances where what we do
       learn from the PEAK is that an error notice had been
       issued by mistake in relation to the sum of over £500
       through which the £81 mistake was discovered.
           So it doesn't say it, and what evidence it does
       provide tends to be, if anything, pointing in the
       opposite direction to the assumption the court is
       invited to make about a process which falls outside the
       system as defined in the Horizon Issues.
           Post Office's submissions in relation to this at
       paragraph 39 {A/6/460} in their conclusion on page 460
       effectively involve a criticism of Mr Coyne in this
       respect.
           They say:
           "That analysis is incorrect.  None of the Peaks
       referred to by Mr Coyne demonstrate a direct financial
       impact on branches; in most cases this is because the
       issue affects reporting whilst the underlying data
       remains unaffected."
           And so what they are doing is they are confining
       their data for the purpose of Issue 1 to what's actually
       in the branch count on the face of Horizon without
       really grappling with the word discrepancy of course, or
       shortfall, which implies a comparison between one thing
       and something else.
           So it is wrong as a matter of principle and, we say,
       and characterisation and fact.
           My Lord, can I turn now to bug 12, please.  That
       starts at page {A/6/461}.  It is the counter replacement
       causing one-sided transaction and this is said to be
       a bug with transient but not lasting impact.
           Your Lordship has our submissions that that's more
       than sufficient for Issue 1 and that Dr Worden's
       approach to permanence is wrong.  Post Office's closing
       submissions at paragraph 3 under the nature of the issue
       refer to the PEAK PC0058528, which is a replacement of
       a counter's hard drive, and that replacement caused two
       messages relating to an OBCS transaction to be
       overwritten, resulting in a receipts and payments
       mismatch.  A transaction with a value of 167.12 was not
       added to the cash account.  So there is a discrepancy of
       £167.12 on Post Office's own description.
           Then paragraphs 4 to 10 set out technical detail
       which is not referred to {A/6/462}.  There is no
       reference to where that's found in the evidence.  And
       paragraph 11 confirms the discrepancy of £167 and says
       it would have been flagged to the SPM.  So this is
       rather like the would have evidence we had in Common
       Issues.  It invites an assumption of a uniform
       favourable practice in Post Office's favour performed
       faultlessly.
           Then at paragraph 13 {F/6/463}:
           "Information of the overwritten messages was passed
       to MSU who created a BIMS report for Post Office and an
       error notice would have been issued to hold the branch
       harmless thereafter."
           Against that background it is worth looking at the
       PEAK at {F/77.1/1}, Mr Miletic rightly reminds me.
       That's the reference to the discrepancy of £167.12 we
       see on page 1.  If we go over to page {F/77.1/2},
       please, in the third box down underneath "F} Response",
       halfway down in the third box:
           "This is a single counter outlet,n and the counter
       was replaed on 22nd and two messages were overwritten.
       KEL JBallantyne5328R.  The messages retrieved from the
       mirror disc show that a transaction for product number
       184 value £167.12 was overwritten.  I have attached the
       two sets of messages as evidence."
           Then if we go over the page {F/77.1/3} we can see at
       the top of that KEL, top of the page, the PEAK:
           "Like the other cases this is a single counter
       office which had its hard drive replaced due to problems
       with it."
           So we can tell there are other cases of this type.
       Then if we go to the KEL that's mentioned there, which
       is the Ballantyne 5328R KEL, which is at {F/421/1}, what
       we actually find in the KEL is underneath "Solution -
       ATOS" towards the bottom:
           "To find the overwritten transactions for
       reconciliation we need to look at the Ripostemirror
       messagestore."
           And we can see the number attribute prior to the
       rogue data in the third line.  So that is being done
       there, as we can see on the right-hand side.  Halfway
       down is to tidy up the counter and analyse the content
       of the messagestore:
           "For a multi-counter outlet (MCO) need to retrieve
       the messagestore from another counter, as well as the
       affected counter ... transaction numbers for the
       RiposteVersionString messages should reveal the original
       transactions.  When you have identified any missing
       transactions attach the details to the PinICL and route
       to MSU."
           So what is not there is a reference to the BIMS
       report there or error notices, or TC or an instruction
       to do that in the KEL itself.
   MR JUSTICE FRASER:  And where are you comparing that with?
   MR GREEN:  What is suggested at the closing submissions is
       paragraph 13 where they say:
           "An error notice would have been issued to hold the
       branch harmless thereafter."
   MR JUSTICE FRASER:  So your point is that hasn't come from
       the KEL?
   MR GREEN:  No.  If it is somewhere that our attention has
       not been directed to by the way it has been presented,
       there are plenty of other examples of points without
       foundations in the underlying documents.
   MR JUSTICE FRASER:  For example, in paragraph 14, the final
       line:
           "A further change was made to stop Riposte writing
       messages as it came online."
   MR GREEN:  I'm not quite sure where that is.  We haven't had
       a chance to search randomly.  It may be in one of the
       documents, but given the pressure of responding to
       545 pages.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  In that case, my Lord, it is right that the PEAK
       says a final BIMS should be issued, but a KEL which is
       passed across says pass to MSU.
   MR DE GARR ROBINSON:  Sorry, is my learned friend suggesting
       that those things two are inconsistent with each other?
   MR GREEN:  Well, they are different and whether or not the
       transaction corrections are actually issued is at large.
       What is suggested to Mr Coyne on {Day17/98:9}, if we
       have a look there -- if we look at line 9 on page 98.
   MR JUSTICE FRASER:  Where?
   MR GREEN:  You will see:
           "Question:  Here's what interests me, Mr Coyne.
       What you are saying is -- let me do it this way.
       I would suggest to you that on any fair and reasonable
       reading what this PEAK demonstrates is, first of all,
       that Fujitsu spotted that there was a failed recovery
       situation?
           "Answer:  Yes.
           "Question:  Very reliably.  One can reliably assume
       that's going to happen, yes?
           "Answer:  Yes.
           "Question:  Looked into the underlying circumstances
       at the branch at the time of the recovery.  Again one
       can reliably assume that's going to happen?
           "Answer:  Yes.
           "Question:  Then formed the view it was necessary to
       work out what had happened on the ground in order to
       know whether any discrepancy had been created or not,
       yes?
           "Answer:  Yes.
           "Question:  Then sent through a BIMS to Post Office
       to tell Post Office to reach out to the postmaster and
       ask what actually happened on the ground?
           "Answer:  Yes.
           "Question:  And I further suggest to you, Mr Coyne,
       that the reason why Fujitsu sent that BIMS and the
       reason why Post Office received that BIMS, they don't
       receive these documents in order to put them in a pile
       in some warehouse and never look at them, they receive
       them so that they can be acted upon?
           "Answer:  Yes.
           "Question:  And on any fair reading of the evidence,
       it would be extraordinary in this case to assume that
       having received that BIMS, Post Office would not have
       reached out to the postmaster, ascertain what had
       happened and sent a TC or not depending on the
       postmaster's answer."
           So that is the footing on which it is put to
       Mr Coyne.
           His answer at line 17:
           "Answer:  Yes, but this is quite clear, when you
       read the heading "Recovery Failures", that it is seeking
       to address Horizon Issue 4: to what extent has there
       been the potential for errors in the data recorded in
       Horizon?"
           So the point Mr Coyne is also making in relation to
       that is the need for a transaction correction creating
       the discrepancy in the first place.
           So where we end up in relation to this is the
       financial impact is admitted by Post Office and so it is
       sufficient in any event.  But it is clear the court can
       have no confidence in this not being a lasting
       discrepancy because although there is a reference to
       a BIMS being sent through, there is no evidence it was,
       and there is no evidence about what action Post Office
       took in relation to it.  And that all falls outside the
       system as defined in Horizon Issues, which is the reason
       that there wasn't disclosure in relation to the TCs
       beyond the overall numbers and so forth which we had.
           So, my Lord, I would now like to move to bug 13
       which is the one that is now said not to be a bug at
       all.  This is addressed at Post Office's closing
       submissions at {A/6/466}.
           Post Office dispute this is relevant to Issue 1
       because, as they set out at paragraph 2, it is not a bug
       at all, and it is curious for two reasons.  Firstly, it
       is in Dr Worden's list of 12 bugs which had a financial
       impact in joint 2 at paragraph 112, the reference for
       which -- we needn't go to it -- is {D1/2/27}.
           The second reason becomes apparent when we look at
       it more closely.  Post Office's submissions at
       paragraphs 528 on page 467 describe the initial issue in
       the PEAK, and essentially what happens is Post Office
       withdraws stock, namely a £5 saving stamp.  The SPM
       returns the stamp as required but does not rem them out.
       This leads to a £685 discrepancy which paragraph 6
       describes -- and this is rather important -- as "pure
       user error" {A/6/467}.
           It is said at paragraph 8 that:
           "The [SPM] elected to make good the shortfall and
       a credit transaction correction was subsequently issued
       for.£685 to rectify the issue."
           Then at paragraph 9:
           "However, a bug in Horizon ..."
           Bearing in mind that this is not a bug apparently:
           " ... caused the £685 of stamps to be subsequently
       reintroduced into the branch’s accounts on two
       occasions.  By this point, Horizon was showing that the
       branch was holding £1,370 of the stamps."
           So there's, at the very lowest, something of a
       tension in Post Office's analysis of whether this is a
       bug, error or defect as defined in Horizon Issue 1.
       They say not.  And that's the basis upon which they
       departed from Dr Worden's approach.
           Paragraph 10 is also important because there's
       another unrelated trading issue that was said to have
       likely caused the SPM not to notice the first instance
       of the withdrawn stock being introduced.
           That's obviously unhelpful for the countermeasures
       that Dr Worden relies on if there are any difficulties
       in accounts not being able to immediately identify, as
       Post Office acknowledges you may not be able to, the
       cause of Horizon system-generated problems.
           If one then looks at the actual PEAK itself, which
       is at {F/765/1}, it doesn't actually support the
       submission that is made that this was pure user error.
       And we see that at -- we start on page 1 of 765.  We can
       see under "user names" in that top box, go down just
       over halfway down:
           "User names - SK1001 and PCA001."
           It says under that:
           "This office physically held 137 £5 PO saving stamps
       ..."
           And this is really important:
           "... and did not rem them out before the date the
       rem out icon disappeared.  The office physically
       returned the stamps to Transaction Processing as advised
       and the office then did a Trading Period balance ..."
           So pausing there.  We do not get from the PEAK
       itself the fact that the SPM failed to do what they were
       advised to do in terms of failing to rem them out.  What
       we do get is that they returned the stamps to
       transaction processing as advised.
           We can see towards the bottom of that box, there are
       two two-line paragraphs:
           "I have spoken to Phil Herrett in Transaction
       Processing who has confirmed he is aware of about
       8 offices with similar issues with the stamps still
       showing on the stock."
           Gives an example:
           "Can this be investigated to see why the stock is
       still showing in the office, and if this keeps giving
       the office a loss of £685 every time they do a Trading
       Period balance."
           Then what we then find is over the page {F/765/2}:
           "This is an example of the problem described in KEL
       PothapragadaC4913L."
           Underneath that:
           "The change to prevent the withdrawn product being
       put back into stock has been rolled out across the
       estate so there should be no further new occurrences of
       this problem."
           We can see in the rest of the PEAK, if we go over to
       page {F/765/4}, just over halfway down in the yellow
       box:
           "I have spoken to Gareth Jenkins ref this, he is
       going to find some time to go through the issue with me
       this week."
           Then Mr Charlton, the penultimate green box, halfway
       down that:
           "... also checking to see how many other offices are
       affected by this issue as there may be some who have not
       reported the problem."
           Which we say is realistic.
           Then there is a workaround over the page at the top
       {F/765/5}.
   MR JUSTICE FRASER:  We are still in the PEAK, are we?
   MR GREEN:  We are still in the PEAK, my Lord, yes.  In the
       top yellow box:
           "To continue investigation into the root cause of
       this issue I need to request some information from the
       audit team ... continue monitoring the progress ..."
           If we go to the end, {F/765/6}, three yellow boxes
       down, the audit data that Mr Charlton had been supplied
       with was blank.  So he is trying to get another disk
       with the required data on it, and the closure,
       notwithstanding that had there is a fix rolled out to
       cover that, is:
           "Development [confirms] a refdata fix will be
       delivered to prevent any further occurrences of this
       problem.
           "As NBSC have a circumvention for the issue, a KEL
       covers the scenario and a fix is pending I am closing
       this call.
           "... Category 95 ...  Advice after investigation."
           Which does not capture the reference data error
       problem that was underlined in the system which was
       corrected by the fix.
   MR JUSTICE FRASER:  But that KEL is the PothapragadaC4913L,
       is it?
   MR GREEN:  That is the KEL being referred to, yes.
   MR JUSTICE FRASER:  Do you have a reference for that KEL?
   MR GREEN:  My Lord, I don't off the top of my head.
   MR JUSTICE FRASER:  I don't expect you --
   MR DE GARR ROBINSON:  It may be {F/678/1}.  I'm just going
       from the appendix.  If I have got that wrong let me
       apologise in advance.
   MR JUSTICE FRASER:  I'm looking at the appendix, but in
       paragraph 12 it mentions that KEL but it doesn't have a
       footnote, so ...
   MR DE GARR ROBINSON:  I'm looking at paragraph 121.2 on
       page 466 and there is a footnote to the
       PothapragadaC4913L.
   MR JUSTICE FRASER:  F/678, thank you very much.  Yes, thank
       you very much, Mr de Garr Robinson.
   MR GREEN:  My Lord, could I take your Lordship back, with
       that background, to what's said about this in the
       closing submissions at 466 and 467.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  It is {A/6/466}.  So we have got the contention
       that it is not a bug at all at paragraph 2, and over the
       page, {A/6/467} it says at paragraph 5:
           "Subpostmasters would have been instructed to rem
       out any excess stock ..."
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  That appears to be the foundation for the
       assertion that this was pure user error in paragraph 6.
           Then paragraph 9 openly recites that a bug in
       Horizon caused £685 of stamps to be subsequently
       reintroduced.
   MR JUSTICE FRASER:  Where are you looking now?
   MR GREEN:  Paragraph 9, my Lord.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  A bug in Horizon caused £685 to be subsequently
       reintroduced, which we respectfully say is just
       hopelessly irreconcilable with saying "this isn't
       a bug".
   MR JUSTICE FRASER:  I think I have got that point.
   MR GREEN:  I'm grateful.
   MR JUSTICE FRASER:  I think you did make that point a little
       earlier.
   MR GREEN:  I'm grateful.  Two layers --
   MR JUSTICE FRASER:  I do generally get points first time
       round.
   MR GREEN:  Noted.
           Bug 14 we don't need to deal with because that's
       agreed by Dr Worden and Post Office haven't changed
       their mind about it.  Bug 15 is phantom transactions
       which is picked up at 473.
   MR JUSTICE FRASER:  Do you want to have a break for the
       shorthand writers before you go on to bug 15?
   MR GREEN:  My Lord, I think I was asked to go a bit further
       last week before stopping.
   MR JUSTICE FRASER:  That's fine.
   MR GREEN:  If that's all right.
           We pick it up at 473 {A/6/473}, which is phantom
       transactions.  At paragraph 2:
           "Post Office submits that this is not a bug at all.
       Manifestations of this alleged bug are either design
       features of Horizon or user error."
           The footing for that, the key aspects of the
       Post Office analysis are paragraph 8 on page {A/6/474}
       where they criticise Mr Coyne for failing to refer to
       the other two PEAKs, both of which state the issues at
       Old Isleworth were attributable to user error.
           As your Lordship has already seen in relation to
       that PEAK that is the Romec one and Pat Carroll.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  That's a bold gloss to put on that PEAK and
       a pretty bold departure point for criticising Mr Coyne.
           Paragraph 11:
           "It is not possible from the PEAK to know what the
       Romec engineer saw.  Indeed there are a host of possible
       explanations ..."
           Then Post Office's closing submissions:
           "Mr Carroll ultimately determined that there was not
       a fault in Horizon."  {A/6/476}
           Which is the not so as to preclude user error point.
           Then 477, paragraph 16 contends that:
           "Mr Coyne gives a misleading impression of what the
       Peak actually says and ignores the later content of Peak
       PC0062561 and indeed the conclusions of the Peak.
       Mr Coyne fails to mention at all the conclusion to Peak
       PC0065021 that all reported cases are attributable to
       user error."
           So that is a premise for criticising Mr Coyne for
       not acknowledging that conclusion: that all reported
       cases are attributable to user error.
           I'm not going to take your Lordship back to the
       Romec/Pat Carroll PEAK, so I think we can take that
       reasonably hopefully as read, but that's {F/97/1}.
           That is where Pat Carroll on page 7 obviously has
       himself observed the problems overnight and Romec have
       separately observed the problems when visiting, and then
       it is closed in a way which we say is thoroughly
       unsatisfactory.
           Mrs Van Den Bogerd was cross-examined on this
       {Day5/40:3} to line 14.  She didn't seek to suggest in
       her evidence that the Romec engineer was likely to have
       been in error in some way, notwithstanding her
       experience of dealing with postmasters herself,
       subpostmasters herself in her previous roles.
           The Post Office says the user error was the
       conclusion in the other PEAKs, and so we need to look at
       {F/100.1/2} which is the conclusion which is PEAK
       0068327.
           On page 2 there, it says:
           "Following a significant amount of monitoring we
       have been unable to definitively link any
       equipment/environmental issues to any particular event.
       There have been incidents which showed a possible
       correlation between system activity and phantom
       [transactions], these pointed to a touch screen problem
       and as a result the screen was replaced with a resistive
       model.  As this produced no measurable improvement it
       has to be assumed that the problems were user related."
           So there's no definitive determination, and the
       basis that Pat Carroll says it has to be assumed
       problems were user related is the screen has been
       changed.
           Let's go to the other PEAK, which is at {F/88.2/2}
       and then perhaps take a break.
           If we look at page 2 of that PEAK we can see the
       bottom or penultimate green box, the large green box,
       17th August 2001, 9.13:
           "This outlet has reported continual phantom
       transaction problems causing us to exhaust every
       possible course of action in trying to solve them."
           We have, and then there is a list of what they have
       done.  Then below "holiday":
           "After all this the PM is still experiencing Phantom
       transactions but they are mainly on counter positon 1
       and this is always used by Robert Parker (PM).  I have
       asked Robert if I can spend some time at the outlet with
       him so I can be present when the phantoms occur but he
       is not keen for this to take place as he feels the
       outlet is too small and gets too heated as it is.
           "I spoke with HSH this morning and she advises that
       since power help was last archived, Mr Parker has logged
       34 calls to the helpdesk and a vast amount are advice
       and guidance.  My personal feeling is that Mr Parker
       could do with some further training and I feel that this
       should be our next course of action.  The only other
       option we have open to us is to change the ISDN line
       which is the old style, but myself and HSH feel that
       this is an expensive option to go down when it may be
       user error at fault."
           Then over the page {F/88.2/3}, the yellow box, third
       line:
           "From RNM," the regional network manager:
           "I spoke to training and Dev this afternoon and
       arranged 2 days training for next week, when I rang
       Mr Parker he told me that he did not need the extra
       training so I have now cancelled it.  He also told me
       that the phantom transactions have stopped.
           "PON to RNM: 'There seems to be no issues at this
       outlet if you are happy with the postmasters response.
           "Is there anything else that needs investigating at
       the outlet proven to be directly liked with phantom
       [transactions] ... as there are none recorded?  If not I
       would like your agreement to close down this problem as
       now resolved.  I would like to make you aware though
       that the postmaster does seem to be making quite a few
       calls still to the HSH helpdesk, mainly around simple
       things such as reversals.
           "RNM to PON: Thanks for making aware about the
       number of calls your still receiving, I don't think we
       will ever stop him from making these.  I see no reason
       why this call cannot not be closed.  As I said the
       Postmaster said he is no longer getting these
       transactions.  Calls have actually reduced in September,
       there are ... only 4.  I have agreed with PON that there
       is little else which can be done. The PM is not making
       errors with his work and the call volume has improved.
       I have agreed to close the problem."
           So what we get is it may be user error at fault and
       the problems stopped, and that's the point at which they
       decide to close it down.
           If we then go forward to the KEL that relates to
       these, which I can do in about one minute:
           It is {F/174/1}.  It is a one-page document:
           "Symptoms.
           "There have been several calls over the last few
       months where postmasters have reported phantom sales.
       Items appear by themselves for which the PM has not
       pressed an icon.  These may be individual items or
       several of the same item.  Sometimes when no one has
       been near the screen items may appear."
           Then under the "Problem", the last line of the
       problem:
           "A more recent case revealed that the cable between
       the screen and the base unit was the root cause."
           That rather undermines the reliability of
       a conclusion that Pat Carroll thought was the only
       available assumption, that once you change the screen
       and the problems continue, you have to assume it is user
       error.  Because it turned out, as we can see from the
       KEL, that in one of the cases it was the cable that was
       the problem.
           My Lord, that's the end of the piece in relation to
       that.  We respectfully say Post Office is putting
       a massive gloss on the underlying documents in asserting
       what they are asserting, and it is a thoroughly
       unreliable account of that bug.
   MR JUSTICE FRASER:  Thank you very much.  We will have
       10 minutes.
   (3.21 pm)
                         (A short break)
   (3.31 pm)
   MR GREEN:  My Lord, I now propose to take a particular
       example issue and just trace it through, if I may.
           I would like to start, please, with {F/908/1} which
       is an internal Fujitsu/Post Office document of
       22nd March 2012, which is a review of various computer
       weekly articles.  And this shows that it appears I think
       to have been authored by Fujitsu and this goes to the
       identification of issues certainly by this date which
       are still live in these proceedings.
           Your Lordship will see at the top, first paragraph:
           "A number of articles have been written by Computer
       Weekly relating to the Horizon System and the issues
       postmasters have had with deficits.  The main article
       was published in May 2009 and can be found in
       Appendix 1."
           There is a summary, it highlights seven case studies
       where they claim faults.
           If we go forward to page {F/908/3}, we can see that
       the second case study is that of Jo Hamilton, and we can
       see in the key points box on the right, second bullet
       point:
           "Postmasters claim faults with the technology are
       generating unexplained losses."
           Third bullet:
           "Post Office denies IT fault could cause accounting
       system to show incorrect balances."
           So this is the Computer Weekly article of
       11th May 2009, as we can see from the top.
           If we go over the page to {F/908/4}, we see a brief
       reference to Jo Hamilton's case being ultimately:
           "... signing her accounts even when she knew they
       were wrong, because, she says, calls to the Horizon
       helpline didn't stop the deficits occurring and she felt
       backed into a corner.  She was convicted of false
       accounting, but was spared a prison sentence after local
       villagers organised a collection to pay the debt."
           If we go forward to page {F/908/6}, the relevant
       case study is at the foot of page 6.  Her name appears,
       Jo Hamilton, at the bottom of page 6 and over the page
       to page 7.
           The specific point that I just want to trace through
       in the evidence is the idea of problems with sums
       doubling, because it was one of the things that was
       certainly known to Post Office to be an issue.
           As we see in Jo Hamilton's case {F/908/7}:
           "'One time it said I was down £2,000, so I rang the
       Horizon helpdesk.  The supervisor told me to do various
       things, and three minutes later I was £4,000 down.
       Whatever I did after that, I couldn't get it to come up
       any different,' she says."
           So that is the Computer Weekly report of what
       Jo Hamilton had said there.  So we know that doubling
       had been identified certainly as an issue, although it
       sounds very implausible when you first hear about it
       perhaps.
           If we then go forward to {F/930/1}.  I should
       mention that I think the correct date on that
       document --
   MR JUSTICE FRASER:  By that document, you mean 930?
   MR GREEN:  The first one is 2012 at 9.08.  It is in Opus
       I think as 2010, but it bears clearly a date of 2012.
           So if we go back to 17th May 2010, this is a pack
       that was prepared in advance of a meeting with
       James Arburthnot and Oliver Letwin, both MPs who had
       affected constituents, and it is a plan for what was
       going to be said.  And we can see the agenda on page
       {F/930/2}.
           There is a reference to "Review Jo Hamilton case" at
       6a, and over the page on page {F/930/3} "Introductions",
       third bullet point:
           "We understand you have raised some concerns, and
       are representing the concerns of subpostmasters in your
       areas.
           "We are open to feedback and we will provide you the
       information we have available, our aim is to be open and
       transparent."
           Then over the page {F/930/4} at item 3 "Horizon -
       background", second bullet point:
           "Although we recognise that Horizon is not perfect,
       no computer systems is, it has been audited by internal
       and external teams, it has also been tested in the
       courts and no evidence of problems found (of the nature
       suggested by the JFSA) ..."
           Third bullet point second line:
           "Both versions of Horizon were built on the same
       principles of reliability and integrity."
           Then if we come down to 6a {F/930/5} on the next
       page, there is a summary of the "Review Jo Hamilton
       case":
           "Cash holdings ...
           "Audit findings.
           "She was in personal financial difficulties.
           "She was provided an opportunity for an explanation.
           "She did plead guilty to fraud."
           It is described there.
           If we go over the page, it says {F/930/6}:
           "What are your thoughts on the meeting?  Do you have
       any areas of concern?
           "We are considering commissioning an independent
       audit as an assurance measure, but in light that there
       is no evidence that there is a problem, we need to
       determine if this is a good use of public money."
           Then if we go forward to page {F/930/8} at
       paragraph 2:
           "What is our view of Computer Weekly."
           They are obviously respected.
           Third paragraph:
           "As we have external and internal experts available
       we don't believe Computer Weekly can assist us in this
       specific case.  Although there is no evidence of
       problems with Horizon ..."
           This is in 2010:
           " ... Horizon, as an assurance exercise we are
       considering an audit of our processes, data, and IT
       systems.  If we do proceed with this audit, it is likely
       that we will use a professional audit organisation that
       are tried and tested in this area as we require
       organisation who have the reputation and the experience
       of defending audits against external scrutiny."
           Then in paragraph 3, the second paragraph:
           "In cases where an auditor has found evidence of
       fraud, the previous trial balance (which the
       sub-postmaster has approved) will be the baseline
       record."
           Then in paragraph 5 {F/930/9}:
           "Why are we considering Deloittes to perform the
       audit?"
           What's said there is:
           "KPMG are excluded as they are Fujitsu's auditor.
           "Ernst & Young are excluded as they are
       Post Office's auditor."
           So that was the view taken at the time, which gives
       further background to the Post Office reliance now on
       the ISAE service audits which conflict with the APPSUP
       PEAK.
           The audit at paragraph 6 is:
           "The audit envisioned is a thorough end-to-end
       review of processes, systems and data which not only
       could reveal potential improvements but could be used as
       an assurance for court future cases."
           Now, against that background there is an explanation
       in a little bit more detail in relation to Horizon on
       page {F/930/12}.  There is really one key reference
       there which is the third bullet point down in the
       "Summary", which is:
           "Each transaction is audited and protected to
       prevent change or tampering."
           Now, your Lordship may remember that Mr Dunks was
       cross-examined in relation to that point.  We find that
       cross-examination by Mr Miletic at {Day7/32:18}.
       Line 18 is the beginning of the section.  He recites
       what's said at paragraph 4 of Mr Dunks' witness
       statement, then the question at line 24:
           "I just want to be precise about the language there.
           "When you say 'audited transaction records', you are
       talking about transaction records generated from the
       audit store; what you're not talking about -- it's not
       the case that those records are actually audited prior
       to going into the audit archive, correct?"
           "Answer:  No, it is just the extraction data that
       I'm taking out."
           "Question:  Exactly.  And so ..."
           It goes on to page 33.
           We referred to that in closing at paragraph 219,
       my Lord, for your Lordship's note, page 92.  I needn't
       take you there.
           We then get on page {F/930/16}, back in the
       Post Office document, Jo Hamilton's case and the
       timeline.  And if we go on to the second page of that
       {F/930/17} we have the entry on 5th May, and the third
       bullet point:
           "SPM provides a pre-prepared written statement.  The
       statement states that the SPM did not receive adequate
       training and that the operation manuals provided were
       out of date.  Statement also makes reference to an error
       for £1,500 which is alleged to have doubled to £3,000
       when attempts were made to correct it."
           So whatever the precise amount, Post Office knew
       from -- it looks like 2006 but recognised and recorded
       it in 2010 in this document, that the issue of
       an apparent disputed discrepancy, having doubled when
       help was sought, was one that was being complained about
       on any view.
           Now, it may initially appear that that seems to be,
       without knowing about the case, somewhat implausible or
       surprising if Horizon is working as the explanation in
       the pack explained it should.
           If we go, please, now to {F/1333/1}, which is the
       Second Sight report.  Second report.  If we go, please,
       to page {F/1333/26} of that report, my Lord, not for the
       purposes of establishing the facts that are set out in
       it but for identifying that it is an issue that has been
       raised, we can see that under the helpline section at
       paragraph 12, which makes various complaints, people
       having difficulty contacting, script-based responses,
       instructions later countermanded and then being told
       don't worry, it will sort itself out, people not knowing
       how long they should wait for that to happen, how they
       are supposed to balance the books in an intervening
       period, and so forth.
           We can see at 12.4:
           "Many of the shortfalls suffered by Applicants to
       the Scheme have, on the balance of probabilities, been
       attributed to 'errors made at the counter' but that does
       not, in our view always mean that more extensive initial
       training would have eliminated all of those errors
       although it would obviously have helped."
           12.5:
           "What we have observed is that, in many instances,
       the biggest shortages seem to have arisen as a result of
       'errors made while trying to correct earlier errors'.
       We attribute this less to inadequate initial training
       than to inadequate subsequent support when branch staff,
       when they were attempting to correct errors that they
       had previously made, just made matters worse."
           Then if we go over the page, 12.6, {F/1333/27} we
       can see:
           "There have been numerous references to shortages
       doubling, trebling or even quadrupling as branch staff
       tried to correct, under instruction from the Helpline,
       errors that they had previously made."
           Then there is a reference to improved error
       repellency at the end of 12.7 and the extent to which
       transcripts are available, if at all, at 12.8, and so
       forth.
           Now, against that background it is interesting to
       identify the trouble that SPMs had with doubles.  If we
       start, if we may, at page {F/24/1}, which is PEAK
       0043811.  My Lord, I should say this is a slimmed down
       selection of the available doubling problems.
           If we look page {F/24/6} of that PEAK, if we may.
       The second green box up from the bottom, 16th May, 16.11
       exactly, the three lines up from the bottom halfway
       across:
           "The RNM," the regional network manager, "put
       £6,343.07 into the suspense account.  The discrepancy
       has now doubled and is showing as a £12,686.14 surplus."
           Over the page on page {F/24/8} there is a suggestion
       that this is another instance of a different PEAK where
       the data server trees have failed to build and now have
       been fixed hopefully.
           If we go forward now to {F/149/1}, we are now in
       2003.
   MR JUSTICE FRASER:  What date was that PEAK we were just
       looking at?
   MR GREEN:  I'm so sorry, I should have mentioned it,
       my Lord.
   MR JUSTICE FRASER:  2000?
   MR GREEN:  That's 2000.
   MR JUSTICE FRASER:  Where are we going now?
   MR GREEN:  25th April 2003 at {F/149/1}.  On the first page
       of that, the first substantive paragraph there, 24/04/03
       at 15.44:
           "Darren from NBSC states that the BM ..."
           I think it should be PM.
   MR JUSTICE FRASER:  I see, 24th April 2003.  15.44.
   MR GREEN:  That's it.  The target date on the PEAK at the
       top is 28th April 2003.
   MR JUSTICE FRASER:  That's rather what threw me.  Yes.
       Darren from NBSC.
   MR GREEN:  "... states that the PM," it should be, "is
       trying to reverse a Rem, but when this has been reversed
       it is doubling up on a balance snapshot."
           If we go over the page to page {F/149/2} and we come
       down to the word "contacted", about two-thirds of the
       way down the left-hand margin just below 25/04/03,
       09.15:
           "Contacted: Pm confirmed all previous information.
       Summarise.  PM was in SU 'Y' he remmed in £13910 and
       continued to trade in that SU in error, he should have
       been in 'I' SU, so he did reversals of all transactions
       in 'Y' including the REM IN and expected to see a zero,
       but his REM IN had DOUBLED to £27,820.
           "He went through all CA checks with NBSC and Horizon
       and a reversal was attempted but a message that a
       'reversal CANNOT be reversed' came up which indicated
       that a reversal WAS CORRECTLY done."
           So the system was reacting on the basis that you
       can't reverse something you have already reversed, but
       the effect of it was to double the figure to £27,820
       rather than put it back to zero.
           If we go forward to page {F/149/4}, the second last
       yellow box, 1st May 2003, 06.34, Walter Wright.:
           "Notes for testers:
           "As well as testing that the fix addresses the
       problem described in this PinICL, it should be verified
       that the fix for the original bug ...  Has not been
       undone.  Other desktop modes should also be checked to
       ensure that no regression has taken place."
           It appears that there was a fix developed for the
       original version of this bug, but nonetheless this has
       happened again and there is a further fix being dealt
       with.  We can see that appears to be right because on
       page {F/149/5} we can see in the top green box, four
       lines up from the bottom:
           "... call type L ... Category 46 - Product Error
       Fixed."
   MR JUSTICE FRASER:  That's also on 1st May, I think,
       isn't it?
   MR GREEN:  1st May 2003.
   MR JUSTICE FRASER:  They are both on 1st May, aren't they?
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  Okay.
   MR GREEN:  Then we move forward to January 2004 at
       {F/184/1}.
   MR JUSTICE FRASER:  Where are we going now?
   MR GREEN:  {F/184/1}, which is PEAK 0098230.
           This PEAK is opened on 13th January 2004 at
15:54:26  18       15:48:19.  If we go over the page {F/184/2}, in the top
       box six lines down, just under 13/01/2004 at 15.43:
           "Information: The RLM has been through the cash
       account with the PM and tried to adjust the figures but
       they keep doubling up."
           So this is not the postmaster or postmistress on
       their own.
   MR JUSTICE FRASER:  Does that say RLM?
   MR GREEN:  I think it is meant to be RNM, unless it was
       regional line manager at the time.  I can't remember
       when it changed.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  If we go down to the penultimate green box on the
       same page, 14th January 2004, 17.55.56, underneath
       halfway down:
           "This results in a discrepancy between the system
       cheque figure and the declared figure."
           We get:
           "Something has changed in the counter code recently
       (I think at COUNTER_EPOSS 20_3; released end Nov) which
       causes the discrepancy to be recorded wrongly; so the
       cheque discrepancy; instead of being cleared; is
       doubled; and the cash is also wrongly adjusted."
           When we go forward to page {F/184/3},
       15 January 2004 at 14.32.05, which is the large green
       box beginning just before halfway down the page, we can
       see there is a response.  Then just underneath where the
       second paragraph starts, just underneath "3rd December",
       does your Lordship have:
           "This is a nasty problem ..."?
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  "This is a nasty problem as; if cheques continue
       to be declared each week on the Declare Stock screen;
       the numbers keep doubling.  However there is a simple
       circumvention and; as they should not be declaring
       cheques in this way; it shouldn't have much impact.  But
       I think it should be looked at and resolved (any chance
       for S60??) - might be instances where it really does
       cause problems."
           Then if we go to {F/207/1}, this is a different bit
       of double trouble.  It is the Horizon KEL GC Simpson
       1049L.  We are in April 2004 to May 2004.
           Symptoms:
           "The PM balanced on Wednesday ... and noticed that
       all currencies on hand had doubled up."
   MR JUSTICE FRASER:  That is an 04 KEL, isn't it?
   MR GREEN:  This is an 04 KEL, my Lord, yes.  It is the 29th.
       It is raised on 29th April 2004 and updated on
       5th May 2004 by Mr Simpson.
   MR JUSTICE FRASER:  It is just for some reason it has
       "March 19" on the top right-hand corner.  That's just
       why I asked.  All right.  Yes.
   MR GREEN:  If we go to page {F/366/1} and we come down on
       {F/366/1} to the penultimate yellow box.  Cheryl Card.
       24th November 2006, 14.56.15, penultimate yellow box:
           "Problem appears to be related to smartpost products
       ... by 1pm Bulk/PrePaidBulk. Credit and Debit figures
       appear to have doubled - message for product 7967,
       SaleValue is 7.40 but Credit is 1480; message for
       product 8058, SaleValue is -7.40 but Debit is again
       1480.
           "Problem has occurred 3 times - see also," some
       related PEAKs.
           If we go over the page to {F/366/2}.  If we come
       down to the third green box, 29th November 2006.
   MR JUSTICE FRASER:  At 10.26?
   MR GREEN:  10.26, my Lord, yes:
           "In the 3 cases seen so far each riposte message has
       had the <Credit:> attribute written immediately before
       after the <Mode:SC>> with the value doubled."
           I'm not quite sure what that means:
           "Normally the credit attribute is seen at the end of
       the message.  We have not as yet been able to reproduce
       the fault, but will continue to try and reproduce the
       fault."
           So what they can see is what has been in fact
       written and it is not as it should be written but they
       can't reproduce the fault.
           Then we see the PEAK appears to be a duplicate.
       This is three yellow boxes up from the bottom.  It
       appears to be a duplicate of another PEAK.  If we go on
       to page {F/366/3}, that PEAK is then being used to
       progress the fault.  So there is an administrative
       response, closure code for that.
           Then if we go to {F/590/1} we are now in
       7th March 2010.  It is raised on 4th March 2010 with
       a target date of the 7th.  This is PEAK 0195561.  If we
       go to page {F/590/2} and we look at the penultimate
       yellow box, 5th March 2010 at 16.58.10.  Cheryl Card:
           "On 02/03/10 on counter 2 at 15.04, the clerk
       attempted a Transfer Out of 4,000.00 from stock unit BB
       to MS.  Due to a system problem the Transfer Out doubled
       up, so when the Transfer In was done on counter 1 ... it
       was for 8,000.00.  The branch now has a loss of
       4,000.00.
           "I phoned the PM and explained that the problem was
       under investigation.  The PM would like to have it
       sorted out before she rolls into the next TP, which is
       due on Wed 17th March."
           Then {F/590/3}, the third yellow box down in the
       middle of the page:
           "Advised PM to print a balance snapshot.  Ran the
       Transaction Correction tool."
   MR JUSTICE FRASER:  Sorry, where are you?
   MR GREEN:  Halfway down the page, my Lord.  The yellow box,
       11th March 2010, 15.22.14:
           "Advised PM to print a balance snapshot.  Ran the
       Transaction Correction tool."
           So this is the use of the transaction correction
       tool and it is then successfully repaired, as we can see
       at the bottom of page 3, penultimate box.
           Then there's a little bit of insight into the
       context in which those at SSC are working, which we find
       on page {F/590/5} onwards.
           18th March 2010, the penultimate green box.  Second
       paragraph:
           "As the fix is already released, I would like to
       request the priority of the issue to be downgraded to C
       as we are trying to investigate the root cause only.
       Please let me know your thoughts on this."
           Then two boxes below:
           "What is missing from this PEAK is the explanation
       of the events in terms of the requests, how they were
       ordered and when any was committed.  Only then can we
       qualify the priority.  The assumption is that we have a
       fix.  The facts are -
           "1: A settlement request to timed.
           "2: A retry of request timeout occurred.
           "3: According to the DB entries both later
       succeeded.
           "Now unlike other reconciliation Peaks this stands
       out because only one of the requests are specific to
       settlement.  They should have worked because there would
       have been a unique constraint violation on the journal
       entry of one of them and if we are not getting this then
       this is still an issue!"
           So he says he can't reduce the priority {F/590/6}.
       There is further investigation.  The request is failing
       in the large -- over the page, on page 6.  So there is
       still an issue is at the top.  Then:
           "We can't reduce the priority ..."
           Then the big yellow box says:
           "Yes, the second request is failing and the first
       request is committing ..."
   MR JUSTICE FRASER:  Where?
   MR GREEN:  In the large yellow box, 18th March, 14.26,
       my Lord.
           Then over the page {F/590/7}, if we look at the
       third yellow box down:
           "Timeouts were the underlying cause of the issue and
       that there were long delays waiting on the DB to process
       the 4 requests.  In this case two of the requests were
       committed and two correctly detected that the
       transaction had already succeeded.  There is an issue
       with the 2 commits because this shouldn't have
       happened."
           Then a bit further down:
           "We would like to find the root cause of the issue
       as to how the duplicate entry was committed in the db."
           There is further investigation, checking the
       relevant database tables on page {F/590/8}.  Then we go
       to page {F/590/9}.  That's the large yellow box at the
       bottom of the page, 22nd April 2010, 15.35.54:
           "I have gone through the counter logs, OSR logs and
       the DB dumps provided in the peak. Lets analyze this
       from the scratch.
           "Peak has been raised when a clerk attempted a
       Transfer Out of 4000.00 from stock unit BB to MS. Due to
       a system problem, the Transfer out doubled up, so when
       the Transfer In was done on counter 1 at 16:15, it was
       for 8,000.00.  The branch now has a loss of 4,000.00.
           "I checked the counter logs and analysed the
       request ..."
           Second line:
           "But note that in the BAL/OSR side this request was
       ignored by the time out monitor and continued to execute
       and hence updated the table."
           That seems to be the problem.
           About halfway down that box there is a two-line
       paragraph:
           "I have requested for the journal table dump, to
       check where duplicate JSN entries exists in the table.
       But from the DB dump, I couldn't find any duplicates."
           Then over the page {F/590/10}, top box, halfway
       down:
           "So, we can see that the insert time stamp is
       different for these 2 records and hence it might have
       entered from 2 different requests."
   MR JUSTICE FRASER:  Sorry, where are you looking?
   MR GREEN:  Halfway down the top box, the yellow box at the
       top.  Halfway down:
           "So, we can see that the insert time stamp is
       different for these 2 records and hence it might have
       entered from 2 different requests.
           "I have no doubt that one of the records was
       inserted by the request id ..."
           Then the number.  It was an original request:
           "But I am not sure how the second report was
       inserted.  But I have doubt on the retried request ...
       which didn't fail at the journal filter stage.
           "So, I would request you suggest on this, since
       there wasn't any evidence which shows that 2
       [transactions] has happened and updated the tables."
           So at the bottom of the page on page 10, Cheryl Card
       is not happy with the classification of duplicate call
       which appears to be because there was another similar
       PEAK which was not immediately spotted to be the same
       problem, and she says:
           "I'm sending this call back with Response Rejected.
           "Closing a call as 'Duplicate Call' results in
       a black mark against me.  It basically means that I
       should not have sent the call over since the same
       problem has already been sent over in a previous call.
           "... (duplicate transfer of 4,000 cash) may have
       been caused by the same underlying fault as PC0194893
       (banking reconciliation), however I could not have been
       reasonably expected to link the 2 calls and take the
       decision that it was not necessary to send PC0195561
       over for further investigation."
           So we can see from there that there was also another
       PEAK, the link to which was not initially appreciated,
       and there was some pressure on Cheryl Card not to
       identify as a distinct problem something that might be
       linked to something else.
           Then we look at, if we can move forward to
       23rd March 2010, which is at {F/596/1}.
   MR JUSTICE FRASER:  We are going into a different PEAK?
   MR GREEN:  A new PEAK which is PEAK 0196154.
           Summary:
           "... remmed in some currencies and the figures got
       doubled up."
           Then halfway down under the second lot of equals
       lines:
           "PM states he remmed in some currencies and the
       figures got doubled up on the system - previous call
       regarding this was closed.  POL state this is a system
       issue."
           Then over the page {F/596/2} we can see the problem
       with the sterling value of dollars.  I think it should
       be $2,000 with a value of £1,320 at the top, rather than
       200.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  Then 2,104 matches the pouch value and then there
       is the third paragraph.  It says:
           "Then got another slip printed showing a different
       session number ...
           "When she went to do her report to check the bureau
       stock ... her system showed as having a value of
       £4,208.84 in the bureau stock which is exactly double
       the original amount she scanned ..."
           Then there's a further analysis suggesting that the
       pouch, if we look at the penultimate green box, third
       paragraph, suggesting that it was accepted at the
       branch, accepted twice at the branch:
           "... due to a system problem when the clerk used the
       Prev button several times during the Delivery acceptance
       ... POL may have to issue a TC."
           There is another PEAK currently with development in
       relation to that problem.  So that is doubling in
       relation to currencies.
           Then at {F/630/1}, new PEAK, 019877, which is the
       Hucclecote fix PEAK that your Lordship may remember from
       the trial.  We see this at {F/630/2}.  This is where
       there is an additional office, which is the Hucclecote
       one which has had a problem in the yellow box at the
       both bottom:
           "NBSC has just advised that another office had
       a similar problem, although the discrepancy has now been
       sorted out.  Details of the site and problem are below
       for information ...
           "Office - Hucclecote SPSO ...
           "Office was dealing with the discrepancy in the
       office following the TP rollover, and selected settle
       centrally.  The office reports that nothing happened and
       they ended up doing this a further 2 times before they
       could proceed.  This has resulted in the office settling
       the loss centrally 3 times.  This showed as such as the
       total on the final balance.  The Trading Statement and
       suspense account seemed to be correct though.  On
       Monday, 19th April the office reported they showed a
       cash gain of double the original loss and after further
       investigation a suspense account was produced that
       showed 2 clear loss from local suspense entries.  We
       have now cleared this by clearing gain from local
       suspense, which should clear the gain in the office."
           Then it says {F/630/3} immediately under that, the
       first green box at the top:
           "The solution we thought we had for Hucclecote ...
       has not resolved the problem, but has actually doubled
       the discrepancy.  The original figures in suspense were
       clear loss from local suspense ... of £998.81 which was
       the original loss in for the branch and this shows
       twice.  We have entered a clear gain from local suspense
       but has doubled the discrepancy that was showing on AA
       su from £1,997.62 to £3,995.24."
           So that's one where they think they have fixed and
       what in fact happens is it has not been fixed at all.
       In fact, it has doubled the discrepancy.
           Then if we go forward to May 2017.
   MR JUSTICE FRASER:  Different PEAK now.
   MR GREEN:  My Lord, it is a different document entirely.  It
       is {F/1794.1/1}, which is the agenda for the Post Office
       operations board of 23rd May 2018.  The point 1 refers
       to the fact that 1794 was the redacted version and the
       version we are going to look at is the version with less
       redactions on.
   MR JUSTICE FRASER:  Fewer redactions.
   MR GREEN:  Fewer.
           If we look at page {F/1794.1/34} of that document.
       It says:
           "There has been 3 reported instances."
           This is SAP, GUI Bureau Value Issues.
           2018.
           "There has been 3 reported instances this week where
       the sterling value of remittances of bureau to branches
       has doubled when the delivery has been booked into the
       branch, For example, Aylesbury GPO were sent a bureau
       rem with a total value of £6.219,81, however when they
       booked it into branch it populated as £12,439.62"
           That passage was previously redacted but we can see
       it in 1794.1 finally, if we go to {F/1857/1} which is
       hot off the press.  This is a document very properly
       recently disclosed because it is recent and it is
       referring to the date of an incident on 21 June, 2019.
           It is surpassing the doubling problem with
       a tripling problem, namely the triplication of
       transaction acknowledgements into branches for Lottery
       transactions in the order of 2 and a half million
       pounds.
           "TAs for lottery TAs (Transaction Acknowledgements)
       for Lottery transactions taken on 20/6/2019 have been
       triplicated in branch causing discrepancies.
           "Accenture loaded the file 2 times in error, once
       correctly."
           That appears to be, my Lord, three times in total
       because we get a triplication of the sums involved.
   MR JUSTICE FRASER:  Two times an error, once correctly.
   MR GREEN:  Exactly.  It is believe this is due to the
       introduction of new RPOS system into pilot.
   MR JUSTICE FRASER:  What's RPOS?
   MR GREEN:  I think it is a new bit of script but I am not
       sure.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  "All Lottery branches are unable to reconcile
       their stock and cash. GL accounts in the Finance systems
       have triplicated data. If a technical fix is not in
       place then FSC will need to issue Transaction
       Corrections (TCs) to enable branches to balance.
           "If a technical fix is not in place and FSC do not
       issue TCs, then emergency suspense accounting will cause
       significant issues operationally for FSC to manage.
           "Communication sent to branches for the issues and
       timeframe to resolve:
           "ATOS/FUJITSU/ACCENTURE is engaged in finding the
       root cause and developing a fix. Conference call
       arranged to discuss and if a fix is not in place TCs
       will be issued from 25/06/19."
           Then there is a note which we have asked in
       correspondence for an explanation of because we only got
       this very recently.  Which says:
           "Please note:
           "Materiality - the threshold would be anything with
       a financial impact of over £50,000 and/or a major
       adverse reputational or regulatory reaction; the 'Daily
       Mail test'.  At this stage, it is more helpful to
       overreport than to miss the opportunity."
           We have enquired where that materiality filter is
       applied, whether it is prior to this report being made
       or whether it is who that gets sent onto.  But the short
       point, my Lord, is that there we have a picture of what
       Post Office explained it knew in both 2010 and 2012,
       where doubling was in issue in a very serious case,
       Jo Hamilton's case --
   MR DE GARR ROBINSON:  My Lord, is my learned friend seeking
       to -- inviting your Lordship to make findings about
       a criminal case that's before the CCRC?.
   MR GREEN:  I'm not.
   MR DE GARR ROBINSON:  Then why does my learned friend keep
       talking about Jo Hamilton?  I do find it striking that
       sometimes he appears to be addressing a jury rather than
       a judge.
   MR GREEN:  My Lord, it may be uncomfortable for the
       Post Office to be faced with documents that show they
       well knew that there was an issue about doubling, but it
       doesn't matter whose cases they arise in --
   MR JUSTICE FRASER:  What you have been doing in the last
       however many minutes, and I didn't stop you with the
       references to Jo Hamilton at the beginning, you used
       that as a springboard to take me chronologically through
       the sequence.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  I have already made clear I think on at
       least three or four occasions this court's position on
       the criminal cases.
   MR GREEN:  Of course my Lord.  My Lord, I'm absolutely not
       trying to invite your Lordship to make any finding
       whatsoever about merits one way or the other.  The only
       point I'm making is that this is a matter which
       Second Sight had identified had been raised by multiple
       SPOs in the Second Sight report and on any view was
       known to be an issue by Post Office from the documents
       we have seen.  That's the only point and it is not right
       for my learned friend to try to seek to distract from
       the stinging nature of the underlying documents by
       objecting.
   MR DE GARR ROBINSON:  My Lord, there are rules about the
       conduct of commercial litigation.
   MR JUSTICE FRASER:  There are.
   MR DE GARR ROBINSON:  One of those rules is that one doesn't
       say things incautiously that might have an impact on
       evaluations being done in another place in relation to
       different proceedings.
           Another one of those rules is not to conflate a
       whole series of issues, all of which are very different,
       bureau rems in, we have got other kinds of rems, we have
       got transfers between stock units, all sorts of
       different issues which my learned friend picks up
       randomly over a period of 20 years and seeks to promote
       them to your Lordship as a single problem which
       Post Office has known about for all that time.
           Your Lordship will have seen from the PEAKs that
       that's not the case.  There were individual instances of
       individual problems, as far as I can tell, some of these
       documents I have not seen before of course, which itself
       is extraordinary given the nature of this trial and that
       we are at the end of it.
           But my Lord what's happened is my learned friend is
       seeking to jumble things up and then create
       an impression.  If I may say so, he has given the game
       away in this particular exercise over the last 45
       minutes and I would invite him to stop.
   MR GREEN:  My Lord, doubtless my learned friend can amplify
       tomorrow.  What I was about to say was specifically to
       identify the fact that, on any view, Second Sight had
       known and we have seen the other documents.  This was
       an issue and what we see in the PEAKs is not only the
       situation where there is an attempted correction, where
       there's doubling, but we see a variety of different
       causes other.  I was not going to conflate them at all.
           I wanted the court to see we have found a wide range
       of strands of causes of doubling issues in the accounts
       of SPMs.  We don't want to conflate them.  We want to
       identify that, not only are there cases where a SPM --
       for example, the regional line manager puts it into
       suspense and it doubles, Hucclecote -- your Lordship has
       got the point.
   MR JUSTICE FRASER:  I have been following your analysis of
       the PEAKs very carefully.
   MR GREEN:  I'm most grateful, my Lord.
   MR JUSTICE FRASER:  I think Mr de Garr Robinson's point is
       that you are going rather wider than the confines of
       this trial by referencing, firstly, criminal cases over
       which I have made it clear I have no coverage and
       jurisdiction and they are not part of the Horizon trial.
   MR GREEN:  My Lord, I agree.
   MR JUSTICE FRASER:  And he has also suggested that you are
       giving a misleading impression by conflating different
       technical issues all into one single issue as though it
       started in 2000 and has run uninterrupted or unbroken
       through to 2019.
   MR GREEN:  Yes and I'm not seeking to do that.  What I'm
       seeking to do is identify by way of one problem which
       might be faced by SPMs without the insight that you get
       from the PEAKs, as to: they have a problem where
       a figure doubles in their accounts and they don't
       understand why.
           Not only is it correct that one of the problems
       Second Sight reported about the number of people
       complaining, which is when you seek help it doubles, not
       only do we find that, we also find a whole load of other
       reasons why figures might be doubling in their accounts.
   MR JUSTICE FRASER:  Understood.
   MR GREEN:  I don't want to conflate them at all.  The short
       point is, stepping well back from this, what we see as
       an overall picture in relation to the documents the
       court has was fairly reflected by Mr Coyne when he
       identified that of course the documents we have got are
       the ones that successfully got through, made it through
       to the third layer, a PEAK was created and is then
       ultimately followed through and so we have more
       documentation where more investigation was done, less in
       documentation where less investigation was done and we
       can also see examples in the documents where
       subpostmasters, even in the cases that do ultimately
       reach a PEAK, subpostmasters either at their or at
       intervention logs can be seen to be being bounced back
       to NBSC.
           My Lord, against that background we have answered
       the Horizon Issues as we have sought to do in a matter
       of a few words in our closing submissions.  We have done
       so, we respectfully submit, on a correct formulation of
       those issues without any glosses which would distract
       from the issues as they were properly formulated by the
       court and the way in which those issues fall to be
       answered by this court are totally unrecognisable from
       the positions that Post Office has taken in relation to
       them in a number of material respects, including into
       the course of this very trial.
           My Lord unless I have anything on which I can assist
       you further, those are my submissions.
   MR JUSTICE FRASER:  Well, I have some questions.  Just give
       me a second.
           Some of them are just minor sweep up points.  There
       have been various references to a figure for the
       claimants' accounting losses generally as about
       £18 million.
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  And that is mentioned in one of the
       expert statements.  I don't know what the origin of that
       figure is.
   MR GREEN:  My Lord it is totted up from the SOCIs, the
       schedules of claimant information, that were identified.
   MR JUSTICE FRASER:  All right.  If it is the arithmetic
       total of that then I don't need any references.
           You mentioned Mr Singh.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  What's your position on Mr Singh?
   MR GREEN:  The position that we didn't call Mr Singh --
   MR JUSTICE FRASER:  I am aware of that that is rather why
       I'm asking you.
   MR GREEN:  The position on the evidence is that he said he
       had this bizarre huge sum on a phantom transaction.
       Mrs Van Den Bogerd says this could have happened,
       I can't say it is possible or not possible.
   MR JUSTICE FRASER:  No, but you haven't called him as
       a witness?
   MR GREEN:  We have not called him as a witness.
   MR JUSTICE FRASER:  His evidence is not admitted?
   MR GREEN:  His evidence is not admitted?
   MR JUSTICE FRASER:  And you showed me the notice to admit.
   MR GREEN:  And we showed the notice to submit and the basis
       upon which it was refused.
   MR JUSTICE FRASER:  That was my understanding that you did
       not call him.
   MR GREEN:  We did not call him and his evidence is not
       before your Lordship.
   MR JUSTICE FRASER:  That's rather why I was asking the
       question.
           At the end of the oral evidence when I think the
       question of disclosure was being discussed, you stood up
       and from memory referred to a solicitor's letter which
       you said you thought was 5th August of last year.  But
       you weren't sure.  Now often when counsel says that they
       know jolly well it is 5th August and they are
       demonstrating their memory recall.
   MR GREEN:  I'm not sure I was on that occasion.
   MR JUSTICE FRASER:  But when I go to the H bundle and look
       for a letter of 5th August I can't find it.  I'm not
       saying you have to give me a reference for it, but if
       there is a reference for the document that you were
       referring to, I would just like to know what it is
       because it will save me some time.  The authorities
       bundle is an agreed bundle I think, yes?
   MR GREEN:  To which we haven't contributed.
   MR JUSTICE FRASER:  It is an agreed bundle of authorities?
   MR GREEN:  It is an agreed bundle.
   MR JUSTICE FRASER:  You have made various submissions about
       Mr Jenkins.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  And you have repeated them today or
       expanded on them today.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  I'm not inviting you to do this, I'm
       just drawing your attention, there is a lot of law or
       there's some law on how the court approaches matters if
       it is being invited to draw an adverse inference from
       someone's absence.  I'm proceeding on the basis I'm not
       invited to draw an adverse inference because none of the
       law relating to it is in the agreed authorities bundle.
   MR GREEN:  My Lord, the position in relations to that is
       reasonably well known but the only -- the way we have
       put it is that it is unhelpful not to have called
       Mr Jenkins and the reason for it doesn't seem
       satisfactory.
   MR JUSTICE FRASER:  I understand that.
   MR GREEN:  We have said throughout to Post Office and
       I think also to the court, that therefore the weight to
       be attached to what's been passed down is very low
       indeed.
   MR JUSTICE FRASER:  I understand that too.  That is a rather
       different point.
   MR GREEN:  We also respectfully submit that it feeds into
       the impression of Post Office being less than
       forthcoming about the true position in relation to --
   MR JUSTICE FRASER:  I understand that too.
   MR GREEN:  Beyond that we don't go further.
   MR JUSTICE FRASER:  That's also a different point.
           The next two points really are practical, pragmatic
       points, or the next one certainly is, for me which I am
       going to raise now because they also affect
       Mr de Garr Robinson's and his team's closing.
           I happen to take the view that appendix 2 is very,
       very useful.
   MR DE GARR ROBINSON:  Of?
   MR JUSTICE FRASER:  Of your closing submissions.  It
       collates a large amount of information in one place.  It
       is effectively a very useful narrative.  You have,
       however, made certain submissions this afternoon that
       some passages of it, you say, aren't reflected in the
       evidence.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  Now, that may or may not be right and
       I have no position on it one way or the other.  But in
       view of the number of bugs, the length of the appendix
       and the quantity of the documents, it is a nettle I have
       to grasp now about how it is going to be dealt with.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  Just to put Mr de Garr Robinson's mind
       at rest, I'm not going to ask for any sort of exercise
       that has to be done before tomorrow and I'm not going to
       ask for any exercise at all other than a purely
       referencing one; but it seems to me that for my purposes
       in writing the judgment I have to know which passages in
       there you say are effectively submission rather than
       evidence, so that the Post Office has an opportunity to
       direct my attention to wherever it is in the evidence if
       it is in the evidence or it might be a submission or it
       might be a point of basic computing knowledge which one
       is expected to have.
           So I would like the two of you, please, just to
       address your minds as to how you are going to go about
       that.  I envisage notification of paragraph numbers from
       you to the Post Office where you say that, for example,
       paragraph X on page Y, which isn't footnoted, is not
       anywhere in the evidence and that then gives the
       Post Office the opportunity simply to say the reference
       is here or it is a submission.
   MR GREEN:  My Lord, our approach, given that where there is
       a document it appears to be footnoted, where insertions
       are made for which no reference is given, we have not
       been able quickly to identify what the foundation for
       that is.
   MR JUSTICE FRASER:  Mr Green, I'm not requesting or ordering
       anything to be done particularly quickly.
   MR GREEN:  I'm grateful.
   MR JUSTICE FRASER:  It is simply -- and I want to make two
       points absolutely crystal clear; this judgment is not
       going to be out at any time in the next couple of weeks
       for obvious reasons and we are going to address
       housekeeping tomorrow.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  When I say housekeeping I mean in terms
       of the shape of the rest of 2019; not to conduct a CMC,
       just to discuss the point I mentioned to both of you two
       weeks ago, what are we going to do about the CMC in July
       and the one in September, is it sensible to have either
       and/or one of them, etc?
           But, as you were taking me through the bugs which
       you chose to address this afternoon, there were a number
       of paragraphs which you said in relation to those issues
       they are not in the evidence or we don't know where that
       information is from.
           If that, in respect of any particular paragraph, is
       the case, then it is very unsatisfactory for me to be
       left in a grey area where I don't know has it come from
       the evidence or is it a submission?  I just need to
       know.  It is very simple.  It is a mechanical task.  It
       won't be very complicated and it doesn't need doing any
       time in the next 7 days, but it does need doing.
   MR GREEN:  My Lord, yes.  I mean, I understand.  The basis
       on which we have approached --
   MR JUSTICE FRASER:  I know you have explained that.
   MR GREEN:  So we should identify --
   MR JUSTICE FRASER:  I think as a matter of fairness to both
       of you, you have to identify a paragraph that you say is
       not taken from the evidence if you say it is not taken
       froth evidence and then the Post Office has to have the
       opportunity simply to give me a reference or say it is
       a submission.  It is not massively complicated.
   MR GREEN:  If they have got sources in mind for things --
   MR JUSTICE FRASER:  Mr Green, I'm not saying --
   MR GREEN:  But anyway I appreciate your Lordship says it is
       a task that has to be done.
   MR JUSTICE FRASER:  It is a task that has to be done, it is
       not designed to impose an enormously expensive or
       onerous burden on the legal advisers and it doesn't
       necessarily have to be done, if I can put it this way,
       to the nth degree for every separate sentence in
       a paragraph that might have ten sentences.  But it does
       have to be done.  Because the only other way I'm going
       to be in a position to know: is that paragraph based on
       any evidence? is by going through the whole of the
       evidence myself, which I will be doing but I won't be
       doing separately in respect of each paragraph in
       appendix 2.
   MR GREEN:  I see.
   MR JUSTICE FRASER:  It is fairly straightforward.
   MR GREEN:  I understand.
   MR JUSTICE FRASER:  I don't imagine -- when you have had
       time to look at it, it might be more obvious that either
       there are a list of however long it is or a much shorter
       list, but it is not going to be -- and if the answer
       from the Post Office is: well, yes you need to look at
       this paragraph of Dr Worden 2 or you need to look at
       this witness statement of Mr X or Ms Y, that's the only
       response I need.
           I'm not asking for extra submissions.  I would just
       like to know because at the moment you are saying it is
       not based on the evidence.  So just have a talk between
       yourselves about the mechanics of that.
   MR GREEN:  I'm grateful.
   MR JUSTICE FRASER:  I think that's everything save for one
       point.  Mr de Garr Robinson, at the end of the afternoon
       when there was the exchange between counsel about what
       Mr Green was and wasn't doing in mentioning the criminal
       cases, you said that one of the rules in commercial
       litigation is that one doesn't say things incautiously
       that might have an impact on evaluations being done in
       proceedings elsewhere.
           By that do I take it to mean in relation to
       proceedings before the CCRC or are you talking about
       something else?
   MR DE GARR ROBINSON:  I had the CCRC in mind my Lord but
       I made the point advisedly as a wider application but my
       objection that I made to your Lordship was with respect
       to the CCRC.
   MR JUSTICE FRASER:  Because there are two issues and it is
       something that I just need to address now with you
       because of the way in which it has arisen in the last
       half an hour.
           Firstly, if there are any criminal proceedings
       currently underway as of today, then, obviously, there
       are potential jury issues in terms of any sort of
       publication of today's proceedings.  So that is a point
       which seems to me does have some potential concern
       because those sorts of proceedings could be influenced
       by anything that was reported about this case.
           I'm not sure the CCRC could because that's not
       a jury environment and I am sure they would be
       sufficiently trained to exclude from their
       considerations anything that was reported about this
       case rather than looking at the actual judgment itself.
       But because of the fact the point has been raised
       I wanted to raise it full square with you now.
   MR DE GARR ROBINSON:  I'm very much obliged to
       your Lordship, could I take instructions very briefly?
   MR JUSTICE FRASER:  I think so.
           (Pause).
   MR DE GARR ROBINSON:  I'm obliged to your Lordship for
       giving me that moment.  My Lord, there are no
       prosecutions being brought by Post Office as we speak.
           Post Office understands that there are
       investigations being made by the police and possibly
       other authorities which may lead to criminal
       prosecutions but my instructing solicitors and indeed
       a legal officer from the Post Office is not aware that
       those investigations have actually materialised into
       a prosecution yet.  That's not to say that they are
       certain there isn't one, but they are not aware of one.
   MR JUSTICE FRASER:  That is entirely understood.  My
       potential concern was, obviously, if there were
       a criminal trial underway this week, then we may well
       have to or would have needed to address whether or not
       it was necessary to take any sort of measures to prevent
       those Crown Court proceedings being potentially derailed
       and having to be started again as a result of anything
       that's happened in the last 40 minutes.  But on the
       basis of what you have said, I'm perfectly content and
       unless either of you have anything to say about that?
       No?  Thank you very much.
           Final point.  When I say we are going to address the
       shape of 2019 at the end of tomorrow, that's not
       intended to be an enormous exercise.  It is just a very
       straightforward pragmatic analysis of how long this
       judgment might take and the sequence of the litigation
       following on from that and it may be that it is a short
       point and it is decided we don't need the CMC in July,
       we just have the one in September or something like that
       but we can address that tomorrow when you have finished.
   MR DE GARR ROBINSON:  My Lord, yes.
   MR JUSTICE FRASER:  Anything else?
   MR GREEN:  My Lord, no.
   MR JUSTICE FRASER:  Thank you very much.  10.30 tomorrow.
   (4.42 pm)
         (The court adjourned until 10.30 am on Tuesday,
                         2nd July 2019)