Tuesday 12 November 2019

What Bates v Post Office did next: Court of Appeal

The Royal Courts of Justice, home of the Court of Appeal
This is a proper court building. I turned up early with the specific intention of staking out a place in Court 63 near a plug point in order to make sure I could bang out some tweets, when I just happened to bump into a Senior Litigation Lawyer I know. He too was heading to Court 63.

We exchanged pleasantries and got through the x-ray machine without too much difficulty, but because we were chatting, and because I was subconsciously thinking, "this chap is on home territory", I let him take the lead.

Several minutes later, after encountering interminable flights of stairs, walking along basement corridors into dead ends and having navigate the RCJ's famous Bear Garden (disappointing lack of bears or garden) twice, we eventually worked out that we needed to be in the West End of the East Wing, not wherever we were. So we began walking (at some pace now, given we didn't want to arrive after the judge) back out through a courtyard, up some more steps into another entirely wrong part of the building before we gave up and started again.

"I thought you would know where to go!" I said to the Senior Litigation Lawyer as we semi-ran towards the court.
"I live in Leeds!" he replied.

We eventually found the right place - one of the pokey "modern" courtrooms at the back end of the estate. I staked out a good position on the press bench, found a power source (yay!) and was settled with my laptop set to speed-tweet mode before the judge arrived.

Meet the team

The legal team representing the Post Office at this appeal hearing are a new bunch. Helen Davies QC from Brick Court Chambers led the barristers, and the solicitors are Herbert Smith Freehills. Behind the HSF team were the Post Office's WBD team of solicitors including Andy Parsons. Alan Bates for the JFSA was present, as was Angela van den Bogerd, a Post Office director.

Everyone was robed, with wigs (the Bates v Post Office litigation at the Rolls Building is conducted in suits), and the court was packed. And getting stuffier and stuffier. Some barristers, who have to expend quite a bit of brain power during a hearing, looked worried. The heroic QC for the respondent Subpostmasters, Patrick Green, took an executive decision to open a window close to where I was sitting. Everyone relaxed.

Lord Justice Coulson entered and announced he wasn't going to talk much ("which is a good thing") as he had a sore throat.

So what happened? Well... the Post Office are not seeking to persuade Coulson LJ that their application to appeal significant chunks of the first trial judgment is correct, just that it has reasonable grounds of success. It's a low-ish bar. Lord Coulson can cherry pick what he will or won't allow, accept all grounds or chuck it out.

Today's oral hearing follows a skeleton argument and Grounds of Appeal submitted by the Post Office back in September, to which the Subpostmasters replied with a Statement of Objection. Thanks to both parties' commitment to open justice, you can read them all here.

The Post Office's latest QC is very good, as they all are, but within seconds (and despite saying he wasn’t going to talk much), the judge interrupted Ms Davies' introduction to tell her: "You can take it that I have read this stuff, some of it twice, some of it three times." She moved on.

The Post Office's case is that the judge has erred in his interpretation of case law in a number of areas, particularly with regard to good faith elements of relational contracts, the termination clauses within the Subpostmaster contracts, the areas of the Subpostmaster contract which are too onerous or unusual to be lawful, whether the Subpostmaster contract is governed by the Unfair Contract Terms Act (UCTA) and the obligations on a Subpostmaster as an agent of the Post Office.

These are all crucial areas to the Post Office, because if they are found in breach of contract as interpreted by Judge Fraser in a future "breach" trial, they will be liable for gazillions.

When it comes to termination Ms Davies spelt it out. She told Lord Justice Coulson that the Post Office has received particulars relating to the Heads of Loss/Quantum/Further Issues trial which is due to take place in March. She said that Lead Claimant Naushad Abdulla is claiming that if he had not been summarily terminated by the Post Office he would expect to be in post until 2043, and wished to claim against them for loss of future earnings. Ms Davies made no comment as to whether this was likely, but her point stood. If Fraser J's interpretation of the termination clause in the Subpostmaster contract was correct, then the way in which the Post Office terminated Mr Abdulla's contract would likely be found in breach, costing it lots and lots of money. Multiplied by a large chunk of the claimants in a similar situation. Hence the hundreds of millions of pounds being bandied around.

Although Coulson LJ didn't say so, that's not his problem.

The judge, throughout Ms Davies' evidence, sought to restrict her submissions to the specific Grounds of Appeal she was meant to be talking about, and I got the sense this was for two reasons.

Anything not limited to the Grounds of Appeal was off limits, as those were the grounds on which the appeal application was admitted. Also, much as the Post Office might want one, any appeal is not going to be a retrial, and by accepting wider submissions as part of the application, there was a danger Coulson could end up being asked to make a decision on the Common Issues trial he would be less qualified to make than Sir Peter Fraser.

At one point he even told Ms Davies, that "no one" would ever know more about the Subpostmaster contract than Fraser J - the point being that whilst the decisions of the Court of Appeal supersede the High Court and the judges at the Court of Appeal are more senior than High Court judges, the sheer amount of work that Fraser had put into studying the Subpostmaster contract could not be lightly dismissed or repeated.

Everything's Gone Green

It was this element which Patrick Green, QC for the Subpostmasters, latched onto with his opening remarks. Speaking after Ms Davies had been on her feet for two hours, he told Lord Coulson "not only does the judge [ie Fraser] deserve credit for the work put into the judgment, but he also deserves credit for getting it right."

What followed was a slow demolition of Ms Davies arguments, using specific examples from the first trial which sought to explain to Lord Coulson that Fraser J was looking at everything in the round to inform his decisions. Not just case law, but witness evidence, arguments presented by the legal team and his own knowledge and experience.

Mr Green raised the issue of the contractual obligations of the Subpostmaster, pointing out the judge was given six lever arch files of double-sided printing which was the sum total of the rules and contracts the Subpostmaster signs up to on taking over a Post Office. Mr Green said that in court none of the Post Office witnesses could answer any of his questions as to what was in these documents and how they were implemented. He raised the example of the Book of Rules, which according to the paperwork, the Subpostmaster is bound by. The Book of Rules ceased to be used by the Post Office some 20 years previously and when the claimants lawyers had asked for it, no one at the Post Office could find one. Mr Green used this as an example of the real contractual environment the Subpostmasters were working in on a day to day basis.

"The judge" said Mr Green, "heard gallons of evidence about the run-up to the making of these contracts.  He also heard evidence from which he could understand the contractual context, how things actually worked in practice, and there was also some evidence that you could characterise as post-contractual: what happened? "

This continued in a similar vein until 3.30pm, when Ms Davies was able to reply to Mr Green. At one point she mentioned that Fraser looked at lots of issues outside the straight up Common Issues which were being decided in the first trial.

Lord Coulson interrupted her pointing out this complaint was raised in the Post Office's recusal application.

"Sorry, my Lord, forgive me...?" asked Ms Davies, who was not present during the recusal application.

"It was a point that was taken that the judge should not have dealt with those points." explained Lord Coulson. "He should not have descended into the detail in relation to the terms because that was for the breach trial."

"Clearly" muttered Lord Coulson, "that was piffle."

Whilst much of Ms Davies' reply to Mr Green's objections were very technical, she did score a couple of hits. In some ways it would be extraordinary if Fraser J hadn't made some mistakes in his epic 180,000 word first trial judgment. Whether or not they are egregious enough to allow any appeal is for Lord Coulson to decide.


And he is going to decide soon. The mediation I first mentioned back in October is definitely going to happen. Both parties are going to sit down in a room to go through a confidential discussion process on the 27th and 28th of November.

What is said in that room will probably never be repeated by either party. If initial talks are successful, I expect the mediation will continue next year alongside preparations for the March 2020 trial.

I was told that there are no pre-mediation discussions about anything other than logistics. It's a blank sheet of paper and a chance for each side to speak candidly to each other outside legal protocols.

From what we have heard from the claimants, the Post Office is going to have to sit down with millions of pounds in front of it on the table. It will also presumably have be open to solutions which deal with the criminalised cohort of Subpostmasters AND demands for some kind of public apology.

If all three of the above are not part of any deal, the claimants will likely reverse out of the room and head straight back to Court 26 of the Rolls Building, and this litigation will continue.

Lord Coulson asked if it would be helpful if the parties got his decision on the appeal application before the mediation started, suggesting "it may have some materiality to the mediation."

Ms Davies wryly agreed, saying that "can't be ruled out."

So Coulson LJ told the court unless they heard otherwise he would deliver his decision on the Post Office's application to appeal on or before 22 November, giving the parties sight of it before they get down to mediation.

I suspect Fraser J will also be looking to hand down the Horizon trial judgment before mediation begins.

Neither judge is bound to do this as mediation is an entirely separate process to the courts, but given both the appeal application decision and the Horizon trial judgment will have a massive bearing on the chances of either party succeeding in this litigation, knowing what they contain will necessarily inform their approach.

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