Friday 22 November 2019

Subpostmasters' stunning victory confirmed by Court of Appeal

Today Lord Justice Coulson closed the door on the Post Office's last attempt to wriggle out of its contractual responsibilities to its Subpostmasters describing its attitude as not that far removed from "a mid-Victorian factory-owner." Lord Coulson delivered a withering rejection of all 26 of the Post Office's purported Grounds of Appeal of the Common Issues trial judgment, complaining as he went:
"The Post Office ascribed various findings or conclusions to the judge which, on analysis, form no part of his judgment. As the judge himself noted when refusing permission to appeal even when concerned with findings that he did make, the Post Office takes such findings “either wholly out of context, mis-stated, or otherwise not correctly summarised.”"
Sir Peter Fraser's 15 March judgment against the Post Office was a landmark in this case, but whilst it was open to appeal, there was doubt the Post Office would have to be bound by it.

In just under 10,000 words Lord Coulson puts that doubt to bed. He dismisses every argument the Post Office puts forward, concluding:
"the trial and the subsequent judgment were manifestly ‘the first and last night of the show’. No judge will ever know more about this case generally, and the Common Issues specifically, than Fraser J."
The implications of this decision for the Post Office are costly. It is going to have to spend a lot of money changing its business practices, and more importantly, its culture.

Shortly after Lord Coulson's decision dropped, a serving Subpostmaster emailed me with an impressive piece of invective against the Post Office, railing that: "the sheer scale of their audacious disregard for their trading partners, the law and common decency means they must be held to account.”

The testimony from Subpostmasters down the years and the evidence uncovered during this litigation shows that behind the brand, truly shocking abuses were going on. Many of them came out in evidence and cross-examination during the first trial. Until Sir Peter's judgment came through, the Post Office refused to accept that, over an 18 year period, it had done anything wrong.

Today Lord Coulson said:
"The Post Office describes itself as ‘the nation’s most trusted brand’. Yet this application is founded on the premise that the nation’s most trusted brand was not obliged to treat their Subpostmasters with good faith and instead entitled to treat them in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory-owner."
The Post Office replied:
"We remain focused on the work we are doing to improve the ways in which we work with postmasters, which is of the utmost importance.  We have taken determined action at every level of the business to provide better support to the people operating the UK’s 11,500 Post Office branches."
It doesn't have much choice.  Despite engaging in what the Bates v Post Office managing judge Sir Peter Fraser called "extremely aggressive" and "attritional" litigation tactics - trying to get Sir Peter sacked, taking forever to disclose anything, ramping up costs and trying to mislead in court - the Post Office has so far lost everything in this litigation hands down.

Will there be mass disciplining of those responsible for its failures over 20 years? Will there be an internal inquiry? Will some new hands-across-the-water body be set up to try to work out how the hell it is going to maintain a functioning relationship with its Subpostmasters in the future?

Alan Bates, founder of the Justice for Subpostmaster's Alliance, and lead litigant in this case, said today the Post Office has "wasted good public money in defending the indefensible and it is about time that someone at a very senior level steps in to control this storm that Post Office finds itself in.”

No wonder the Post Office is desperate to settle. The claimants are now barreling towards a series of trials which will start to spell out exactly how much the Post Office is in for if it is found to be in breach of 550+ contracts.

Ron Warmington, whose company uncovered serious failings with the Post Office's practices way back in 2013, reacted to Lord Coulson's decision by saying:
"This is profound. The Post Office's entire business model will now have to be re-generated. Indeed, that’s what we, at Second Sight, told them more than six years ago!  They should have offered serious compensation all those years ago. Now it looks set to cost far more than the Post Office's net worth."
To any casual observer it has been patently obvious that the Post Office's practices in ruining and prosecuting so many Subpostmasters on the flimsiest evidence looked shaky. But it kept doing it despite a growing furore that went public 10 years ago and culminated in a BBC Panorama investigation in 2015. The Post Office kept threatening media outlets if they reported the story, and it tried to make sure that what one journalist called "one of the most widespread miscarriages of justice in the UK this century" stayed out of the news. Bearing in mind how little media attention there has been on this story - it worked.

James (now Lord) Arbuthnot, was the backbench MP for North East Hampshire who campaigned hard to get this story wider attention and who put pressure on the Post Office to deal properly with the evidence they seemed to be ignoring or failing to deal with. Today he said:
"If the Post Office nursed any delusion that its behaviour had been acceptable, ethical or even legal, that ought now to be shattered.  Their treatment of the Subpostmasters has been disgraceful from the beginning, but they have justified it to themselves by telling themselves they are protecting public money.  It is now clear that they have been doing quite the opposite. They are running up vast legal bills defending the utterly indefensible.  They must now stop doing that and must start negotiating in good faith - if they have it in them."
Let's see who's listening. Of course, this litigation could well have a sting in its tail - the judgment for the Horizon trial, in which Sir Peter Fraser conducted a deep dive into the guts of that infamous computer system, has been promised before 4 Dec. Sir Peter might decide Horizon is "robust", which you can bet the Post Office will seize on, as it has every right to do.

There are also the first two mediation dates coming up next week. Who knows what the Post Office will be prepared to do to settle the case? Who knows what the claimants will accept?

There are plenty more twists to come, but today the claimants took one more very big stride towards victory, and they have every right to be jubilant.

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