Tuesday, July 2, 2019

Horizon trial final day: the lights go out

Antony de Garr Robinson QC (l) arriving at court
this morning with fellow barrister Owain Draper
As we have reached the end of the road with the Horizon trial this is not going to be a straight report of what happened today. Anthony de Garr Robinson, QC for the Post Office, did a sterling job of making the Post Office's case, which largely remains the same as it was at the beginning of the trial.

The Post Office agrees Horizon is not perfect. It has bugs, errors and defects, but, according to the Post Office, the likelihood of a claimant Subpostmaster being held responsible for an error caused by a bug is statistically tiny. And in the absence of any other proof, they see no reason to abandon that position.

It is up to the claimants to provide proof and it is a question I have asked before - where is the smoking gun? During the first part of the Horizon trial the claimants produced something which looked like a smoking gun and I reported it. During his cross-examination of the claimants' IT expert Mr de Garr Robinson contested the claimants' position on this specific point. The judge will decide who is right on that instance with all the information before him. Still. One example...

Robustyness

During his closing argument today Mr de Garr Robinson suggested the judge was being led by the claimants into a category error. I think this whole trial has been a category error. There are 550+ claimants. Most apparently believe Horizon is the source of their woes - so why wasn't the Horizon trial an in-depth examination of each of the branch terminals/accounts/data in each of their cases?

That way you get a definitive answer as to whether Horizon was to blame. In the event we had a debate over whether Horizon is/was "robust" or "relatively robust" (which has, as predicted, become a semantic debate over the meaning of "robust") and a bad-tempered discussion about disclosure.

I hesitate to pass comment about the nature and effect of the bugs which were found in the disclosed documents - I haven't studied the reports of the independent IT experts in detail and I haven't read all of the closing statements (the Post Office's is longer than the first trial judgment) - but Jason Coyne, the claimants' IT expert agreed that relative to systems of a similar function and size, Horizon is robust. This is what Mr Coyne said under cross-examination:

Anthony de Garr Robinson: So when you say the Horizon system is relatively robust, you are saying that in the overwhelming majority of cases where conditions are both normal and adverse it works reliably, yes?
Jason Coyne: Yes, the vast majority of all the transactions that flow through the Horizon system will work successfully.
AdGR: And although there are occasions when it doesn't, those represent only a tiny proportion of the work that it does, correct?
JC: Yes, it will be a small fraction of the work that it does, yes.
AdGR: Even within that tiny proportion, a large majority of the problems thrown up are picked up and corrected by the various systems in place that are designed to do precisely that?
JC: Certainly many of the ones that go wrong for one reason or another appear to be picked up. There are examples where they don't appear to have been picked up and examples which appear to have an impact.
AdGR: That is a very important opinion, isn't it, in the context of this case? 
JC: Yes.

If the elephant in the room is what happened in the individual cases brought by the claimants, why not examine them?

I listed the Horizon Issues in a separate blog post. That is what this trial will be decided on. Cross-reference them against the transcripts and the documents I have been able to winkle out of this process (many published on this blog) and you too can play at being a High Court judge. 

I suspect the resultant ruling will be nothing like the first trial with regard to who it favours. But then I thought there was no way Boris Johnson would be elected Mayor of London. 

Justice delayed. Again.

The Post Office's attempt to get the judge sacked in the middle of the Horizon trial has thrown a spanner into the scheduling of the litigation. November's trial is now off as both parties agree they cannot possibly be ready in time. They also hinted in court today there is a natural window opening up in autumn for potential mediation. 

The second trial judgment should arrive around October and in the same month the Court of Appeal has indicated it intends to make a ruling on whether or not it will accept the Post Office's application to appeal the first trial judgment.

If both go against the Post Office they would have a massive incentive to attempt to settle. Even if the Horizon judgment is little more than equivocal, if the Common Issues judgment is upheld in its existing form it will be interesting.

If mediation comes to nought or fails to happen the third trial will take place on 2 March 2020. I understand it will be on issues of limitation, concealment and quantam.

What are they, then?

Well...

Limitation - there is a six year time bar in the civil courts, and the first claim in this litigation went in in 2016. This means that pretty much every claimant in this litigation whose substantive problems with the Post Office arose before 2010 will have to have a good reason for not suing them sooner. Which brings us neatly to...

Concealment - if the claimants can prove that information was kept from them which could or would have helped them in suing the Post Office, they may not be time-barred.

Quantam - part of the third trial will be a discussion/argument about the value of any damages the claimants might get should the judge rule in their favour.

Interestingly, the lead claimants in the third trial will be Naushad Abdulla, Pam Stubbs, Liz Stockdale and Alan Bates, partly because their cases were examined so closely in the first trial - both sides now have a significant amount of information on them. Starting from scratch with four other claimants would take yet more time and money.

There is still a fourth trial in the offing - where the judge will possibly decide on whether the Post Office has breached its contractual obligations to a representative group of claimants. That might take place in June 2020, which means the first substantial damages (if any are to be awarded) may not appear until October 2020, which, of course the Post Office could appeal, taking us into 2021. Only then might the terminally lethargic Criminal Cases Review Commission decide to send some or all of the cases it has under consideration to the Appeal Court, possibly taking us into 2022.

I know of at least one claimant who has already died waiting for an opportunity to clear his name. I suspect there will be a few more over the next three years. I'll go back to what I said in January: unless this starts playing out in the court of public opinion, it will drag on until someone runs out of money. And the Post Office is too big to fail.

Today's transcript is here.
The Post Office closing statement is here.
The claimants' closing submission is here.

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