Thursday 14 February 2019

So where are we now?

Tony de Garr Robinson (pic: One Essex Court)
Today's pre-trial review was a matter of crossing the tees and dotting the ayes before the Horizon trial, which begins three weeks on Monday.

As the "unbelievably clever and super charming" Anthony de Garr Robinson QC (above) will be leading the Post Office's defence in the Horizon trial, he was in court today. David Cavender QC (who acted for the Post Office in the Common Issues trial) will be back for the third trial this November (see below for more info on that).

In today's pre-trial review:

- The Post Office suffered a comprehensive defeat in its attempt to stop the judge paying too much attention to Ian Henderson's evidence in the forthcoming Horizon trial.

- We got some more clarity on how the Horizon trial will proceed.

Let's deal with the first point first.

Mr de Garr Robinson expended a considerable amount of energy on trying to persuade the judge, Mr Justice Fraser, that accepting the six page witness statement submitted by Ian Henderson, a director of the forensic accounting firm Second Sight, was somehow not fair on the Post Office.

Wary of making a formal strike-out request after the Post Office was defeated in a pre-trial ruling before the Common Issues trial (read the ruling here, it's pretty comprehensive), Mr de Garr Robinson said he was instead seeking some kind of assurance from the judge that the Post Office would be protected from any adverse consequences which might come from interpreting what Mr Henderson has written as expert evidence as opposed to factual evidence (each party is only allowed one expert each in this trial, and there is a practice direction which excludes any other kind of expert witness evidence).

He developed his point to say that although Mr Henderson only provided a six page written statement, in it he makes reference to at least one Second Sight report written about Horizon (read more on Second Sight's reports here).

The conclusions reached by Second Sight are hotly disputed by the Post Office and Mr de Garr Robinson was at pains to point that out to the judge. He suggested that any weight given to Second Sight's reports by the court should only come after a thorough investigation into Second Sight's methodology, which was certainly possible, but time-consuming, expensive and not what the Horizon trial was about.

Good for the Goose

He also said that if he were to challenge Mr Henderson's statement under cross-examination, Mr Henderson would introduce other themes, reports, expertise etc and in order to have the tools to properly counter and question anything Mr Henderson says, a huge amount of work would need to be done, which would take Post Office outside the scope of the purpose of the Horizon trial.

The judge asked if the Post Office felt that Mr Henderson's witness statement amounted to expert evidence effectively admitted by the back door. Mr de Garr Robinson said he did, and said it was therefore specifically prohibited by practice direction.

The judge asked Patrick Green, QC for the claimants if he had anything to say.  Mr Green did. He noted “what is good for the goose is apparently not good for the gander” and pointed out that a witness statement by a Post Office employee relied very heavily on conversations with Gareth Jenkins, the Fujitsu IT expert who acted for the Post Office in the trial of Seema Misra [read this for more on the Misra trial].

There was a bit more to-ing and fro-ing and then the judge made his ruling, which was that Mr Henderson's witness statement should stand in its entirety and that during the trial the Post Office could cross-examine him on it for a maximum of one hour.

Another thing which came out of these exchanges was that Gareth Jenkins from Fujitsu is not being called to be cross-examined, and neither is Professor Charles MacLachlan (the latter was appointed an independent IT expert for Mrs Misra).

It's odd that Mr Jenkins is not going to be cross-examined. Two months before he was acting for the Post Office in the Misra trial (which, don't forget, led to Mrs Misra being sent to prison whilst pregnant, solely on the basis of Horizon "evidence") he took part in a meeting about a serious Horizon error which had been affecting several Post Offices for months. The existence of this error had deliberately been kept secret from the affected Subpostmasters, even though it would be potentially leaving them out of pocket. As far as I am aware Mr Jenkins did not disclose the existence of this error to the jury, or to Professor MacLachlan. Perhaps he decided it wasn't relevant. Because he is not being cross-examined, I suspect we'll never know.

Scheduling the Horizon trial

The second part of the morning was taken up with a discussion on scheduling. Both parties pleaded for more time to cross-examine the witnesses and experts, which the judge cheerily refused.

During this discussion it was revealed that the independent IT expert appointed by the claimants, Jason Coyne, has discovered 22 Horizon errors. These must have some kind of material impact or they wouldn't be part of his report. It'll be interesting to know more about them when that report is released to the court.

The way the trial will proceed is as follows:

11 March - opening arguments from the claimants and defence
12 - 14 March - cross-examination of the claimants' witnesses by the Post Office QC
18 - 21 March - cross-examination of 12 Post Office witnesses by the claimants' QC
1 - 5 April - cross examination of the expert witnesses (2.5 days each)
10 and 11 April - closing arguments

You'll notice the court is not sitting w/c 25 March - this was first floated by the judge at the case management conference on Tuesday. It is now definite. Apparently Britain is potentially leaving the EU that week, and HM Courts and Judiciary (including Mr Justice Fraser) need to be on standby for who knows what kind of legal shenanigans.

Among the last things the judge mentioned this morning was me, by name, which woke me up a bit. The judge indicated that his order during the common issues trial that I receive daily transcripts of each day of the trial's proceedings should continue during the Horizon trial. Which is quite the thing.

The next 12 months

So after Tuesday's case management conference and today's pre-trial review, this is where we are now:

28 Feb or first week in March Common Issues trial judgment due.
11 March - Horizon trial starts
11 April - Horizon trial ends
Sometime in May - Horizon trial judgment due
23 July - case management conference for Breach/Concealment trial (also known as "Round 3")
18 Sep - case management conference for Breach/Concealment trial
17 October - pre-trial review for Breach/Concealment trial
4 November - Breach/Concealment trial

The Breach/Concealment trial is scheduled to last four weeks. The cases of claimants Naushad Abdulla and Pam Stubbs will be tried. Both Naushad Abdulla and Pam Stubbs were lead claimants in the first trial, so you can read their witness statements and oral evidence here.

Issues of limitation, concealment and breach will be tried. On Tuesday in court pleadings, disclosure and evidence were discussed. The general agreement appeared to be that key moments around specific incidents which have already been identified in each claimant's case will be gone over in detail, and the Post Office will be required to disclose all the documentation relating to each of these specific incidents so they can be tried fully.

The judgment in this trial could arrive just before Christmas 2019, but bearing in mind the speed at which things are happening now - it's more likely going to be Jan or Feb 2020.

Only after that will the judge decide how relatable his findings are to the remainder of the claimants.

Whatever the relatability of those findings to the wider GLO cohort, we will get concrete findings for or against Mrs Stubbs and Mr Abdulla. If the judge finds in (either of) their favour, there will be damages.

If you want to have a read of today's live tweets, they're here. All errors my own, including calling Mr Coyne "Mr Coin" throughout. Happy Valentine's Day.

Horizon Trial pre-trial review live tweets

Here are the live tweets I sent out during this morning's pre-trial review. You can read a beautifully-formatted version on thread reader here and you can read the original thread on twitter here. Or just read down...

All tweets are paraphrases and summaries of what is being discussed. Nothing I tweet is said verbatim unless it is in “direct quotes”.

Mr Patrick Green QC will be representing the claimant Subpostmasters. Mr Anthony de Garr Robinson QC repping the Post Office.

Follow this thread for all the “action”.*
* I am not expecting much action.

Judge is sitting. They are discussing the witness statement of one of my followers @forensicgod and his meeting with Gareth Jenkins, the Fujitsu employee who was the expert witness for the Post Office in Seema Misra’s trial.

PO counsel has apparently objected to something in @forensicgod’s (Ian Henderson) statement.

PO QC says it is not seeking to exclude all his evidence. It is just trying to limit it to “proper” facts.

Also PO QC keen to keep Professor Charles McLachlan out of the picture (he was Seema Misra’s expert witness in her trial).

JFSA QC confirms the prof will not be called

So PO have successfully blocked Professor Charles McLachlan and they are trying to limit @forensicgod’s on the basis of practice directions which try to keep proceedings manageable.

CPR 35.1 is the practice direction which limits expert evidence.

PO QC says @forensicgod’s evidence falls well outside of this general prohibition.
JFSA QC relying on case law to keep @forensicgod’s in the trial. Judge is going to have to make a ruling on it.

Going back to @forensicgod’s statement on his knowledge of Horizon and the manner in which Second Sight was terminated by the PO, his confidentiality agreement and the way docs were provided to him by the PO. PO QC call the latter three issues “blissfully irrelevant."

PO QC not happy about @forensicgod’s description of receiving data from the PO. Saying his “concerns” are not even a conclusion.

PO QC says Second Sight’s reports are hotly contested and if they were to be incorporated into this trial work would have to be done on whether those reports were done properly. By referring to and relying on those reports in his witness statement @forensicgod is...

… introducing huge areas which “is not what the Horizon issues trial is for."
PO QC says this matters a great deal. They are angling for the opportunity to cross-examine @forensicgod, which he currently isn’t scheduled to do on a time-limited basis.

But also saying that if they do that - then @forensicgod will introduce a load of other arguments and justifications which would extend the document bundle significantly. So even if they did get to xe @forensicgod it wouldn’t be fair on them.

PO QC repeats that this is not what the trial is about. PO QC now repeating judge’s words back to him from a CMC on 22 Feb when he told the court exactly what the Horizon trial was to be all about.

Evidence of fact kept to a minimum and the court was to rely on expert evidence.

J asks how many PO witnesses of fact there are going to be.
PO QC says about 12.
J The only real issues is how to treat Mr Henderson (@forensicgod) - you say he’s an expert by the back door.
PO QC: My lord we do.

It’s a very odd process that seeks to exclude experts. But hey. That’s the law.

PO seem to be saying that @forensicgod is making claims as an expert, but they have no oppo to challenge them. But that it would be bad to challenge them because it would create a whole load more work and court time. So it would be better if it weren’t admitted.

PO QC insists, tho, that is is not a strikeout application. (PO QC is making this submission in full awareness of the last PO strikeout application which they lost comprehensively).

PO QC wants a ruling or direction which gives PO the protection its entitled to adverse consequences from accepting his evidence.

PO QC says admitting the evidence when it isn’t properly challenged creates a problem, but allowing that challenge would extend the trial and

give the PO a headache in having the tools to respond to whatever @forensicgod says. AND that they shouldn’t be doing this anyway because the work of Second Sight is NOT what the Horizon trial is all about.

JFSA QC responds “what is good for the goose is apparently not good for the gander”. There is a massive assymmetry in the information available to the claimants and to the PO.

JFSA QC taking J to a document in the bundle (Vol 2 of 5 Sec 5 Tab 7b, fact fans). Mr Godseth (?)’s second witness statement talking about Prof M and Gareth Jenkins again.

Witness statement refers to payments mismatch bug, callendar square bug, dalmellington bug…

J so you’re saying he’s being called as a witness of fact, when in fact he’s making expert witness points.

JFSA QC “its much worse than that” - goes on to quote how this PO witness...

… relies on conversations with Gareth Jenkins (who is also not being called in this trial).

Gareth Jenkins was the PO expert witness from Fujitsu at the Misra trial who was also present in internal PO meetings around the same time of the Misra trial discussing withholding information about Horizon bugs from Subpostmasters, as we discovered in the common issues trial.

Wonder why Jenkins is not being called in Horizon trial.

We are going to get a direction/ruling/order on @forensicgod’s witness statement, now.

Judge is summarizing the GLO before he gives the ruling for the written record.

H trial is about: Bugs errors defects in Horizon and how H does or does not work. There are 15 of these issues and claimants and PO are allowed to call one expert witness each.

He is now explaining the Second Sight investigation and its termination. Mr Henderson as a director of 2S has provided a short witness statement. His WS is somewhat short, but it does refer to reports by 2S. It summarises the position as he sees it involving his views...

… as he sees it on technical matters. No application was made by the PO to get his statement thrown out (which they tried to do in a wide-ranging way before the Common Issues trial). They are objecting that under CPR 35 this is introducing expert evidence by the back door.

They also object to his evidence on the basis that they don’t know what they can attack and that it would be a huge amount of work to prepare to do so.

Witnesses of fact in the TCC courts often have a huge amount of technical knowledge. Insofar as @forensicgod’s evidence seeks to rely on 2S’s reports as being correct I don’t need to consider that.

I am not going to allow this trial to be sidetracked into a satellite trial about the quality of 2S’s reports.

It doesn’t seem to me the concerns the PO has raised are either unusual or well-founded. J notes that PO has called witnesses of fact with vast amounts of expertise.

I don’t think it is helpful if I strike out or rule any of Mr H’s evidence as inadmissible. Nor am I going to tell the PO what they can or can’t challenge about it. That’s up to them.

Mr Henderson can be cross-examined, but I don’t expect that to last more than an hour.

That means @forensicgod’s witness statement is allowed to stand in its entirety.

We are now discussing timetabling of the Horizon trial.

It will definitely start on 11 March. Half a day each for opening submissions. Then the rest of the first week will be taken with the cross-examination of claimants witnesses.

The second week will be claimants’ xe of PO witnesses.

Third week the court will not sit cos Brexit.

Fourth week (commencing 1 April) will start the expert witness evidence.

PO QC wants to spend 4 days xe-ing Mr Coin - the claimants’ expert witness. Mr Coin has apparently uncovered 22 bugs in Horizon.

PO QC says that he could spend an hour xe-ing Mr Coin on each bug - that’s 22 hours.

J not having any of it. Says its very unusual for anyone in the TCC courts to be on the stand for more than a day. Your request is excessive.

JFSA QC on his feet. Says we’re going to have a lot of trouble getting through all 12 of the PO’s witnesses of fact.

J notes that a while back this trial would take 6 months. We’re not going back to that.
I know in an ideal world each of you would like a week each, but you’re...

… not going to get it.
JFSA QC we’re asking for three days.
J I know and you’re not going to get it.
JFSA QC - nothing further to add.

J okay - w/c 1 April we will sit 5 days and you will get 2.5 days each.
Anything you can’t put to the witnesses you can put in summary form in your closing argument. I am sure in 5 days of xe I will be very well informed and able to
to come to a conclusion.

J notes the IT experts for PO and JFSA are meeting this morning to agree a further joint statement. There’s no reason why they can’t meet again. They ought to be encouraged to agree as much as possible.

Final week will be closing submissions from the JFSA and the PO QCs.

Suspect the court will not be sitting on Mon 8 April and Tue 9 April to give the judge time to read the closing submissions.

Judge has just ordered that I get the transcripts of each day in court as they are distributed to the claimants and defence.

Which was nice.

Court has risen.

So that’s that. A wee battle over the admissibility of @forensicgod’s evidence which the Post Office lost, scheduling and timetabling discussions and we’re all set for 11 March.