Wednesday, April 3, 2019

Bates v Post Office: recusal write-up


I was told the CWU would be demo-ing outside the High Court's Rolls Building in support of the JFSA and claimant Subpostmasters from 9.30am. What I didn't realise is that they'd be done by 10am. I rocked up (phrase of the day - see below) at 10.05am to find a few CWU members lurking outside, but no placards.

Thankfully, efficient people took photographs and forwarded them on.

There was a definite buzz around, both inside and outside the Rolls Building. Court 26 was the fullest I've seen it. At least a dozen claimants were in attendance, including Seema Misra, Jo Hamilton, Sue Knight, Lee Castleton and Pam Stubbs.

Ron Warmington from Second Sight was also there, as were many of the CWU reps who had been stationed outside early doors (including National Organiser Andy Furey and Postmaster Mark Baker - the latter singled out by the judge in the Common Issues trial judgment for his "redoubtable" Freedom of Information campaigning).

Mark "redoubtable" Baker
On the hack front, Karl Flinders from Computer Weekly put in a shift, as did Jane Croft from the Financial Times. It was great to see Joshua Rozenburg wander in, too. He is a legend in legal journalism and I remember watching him on telly as a kid. When he came over to say hello I didn't tell him that, but I wanted to.

The court was so full a couple of claimant supporters arrived late and saw the only chairs available were on the solicitors' benches. Not knowing any better they plonked themselves down and became the only members of the public to have their own personal court documentation screen. The solicitors were either too polite or worried about disrupting proceedings to tell the visitors to push off, so they stayed there.

After lunch the same supporters came back and sat in exactly the same spot without anyone batting an eyelid.

So what did everyone witness today? Why were we there?

It is possible to ask a judge to recuse (sack) him or herself of grounds of apparent or actual bias. The Post Office believes that J Fraser, in his Common Issues trial judgment has displayed apparent bias against the Post Office.

It is an objective test. A recusal application will succeed "if a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased"

The "fair-minded and informed observer" took on almost mythical proportions as the day progressed. It is s/he who will tell the judge if he is biased. Unfortunately s/he doesn't exist.

It was a day of two halves, Brian. In the morning, Lord Grabiner QC for the Post Office took the judge to pieces by isolating specific parts of his judgment and pointing out that any reasonable person could not impute anything other than apparent bias. In the afternoon, Patrick Green QC for the claimants built the context around those specific parts of J Fraser's judgment and argued his comments were entirely justified.

In fact you could almost draw parallels with the Brexit situation.

Post Office: How could we possibly lose? You've done it all wrong!
Claimants: You lost. Get over it.

I'll delve into what was said in a moment. First, the headlines:

1. The Post Office will appeal the common issues trial judgment.
2. The decision to apply for the recusal was made at Post Office board level.
3. The judge has reserved his decision on recusal until Tuesday 9 April at 2pm at the earliest.
4. If the recusal is successful the Post Office wants the Horizon trial to be stayed and restarted.

Off the ropes and playing cards

Bearing in mind we are three years and £20m into this litigation, if the Post Office is successful, we will almost be back where we started. Which is, of course, exactly what the Post Office wants - a big reset to regain the initiative, and a ramping up of the costs to make everything as expensive as possible. That way the claimants will hopefully run out of money and throw in the towel.

In litigation, no one said you had to play nice.

To be fair, the Post Office is bossing things right now. It has successfully seized the initiative from the claimants after the Common Issues trial judgment. Anyone who reads even a few hundred words of that judgment can see the pasting the Post Office got. Factually, legally, reputationally and culturally the Post Office was massively exposed by the judge's findings.

For an organisation which is obsessed with its public image and shrouded by a cult of "excessive secrecy", this must have been a shock. On 15 March, when the judgment was handed down, the Post Office was not just on the ropes, it was floored. Yet within a week it was back. Off the canvas and swinging like a champion.

A recusal application is still a massive call, though. To switch metaphors, aiming to sack a senior judge because you don't like some of the things he's said is the legal equivalent of going all in on a pair of tens. You have to be feeling lucky.

But as every gambler knows, it isn't just about the cards, it's about the player.

Enter Lord Grabiner.
Big Dog

On the evidence of today, m'learned friend could stroll into any long-running, hotly-contested™ litigation and own it. He has a presence and charisma which might persuade a casual observer that everything which happened in the litigation before he got involved didn't really matter.

This is a man who presumably doesn't take instruction unless he is being paid several thousand pounds an hour, or knows he's going to win. Or both.

And so the slow, brutal dissection of J Fraser's judgment was borne by the court as Lord Grabiner went to work, picking out phrases for their invective, irrelevance and potential bearing on future trials. eg:
"the expression "extraordinarily
 serious behaviour" is a strong expression.  It is an
 eye-catching expression.  And in the context of this
 debate, there was no warrant for it and, in my submission, it is extremely prejudicial and certainly
 wasn't necessary for the purposes of the Common Issues.
"
and
"your Lordship makes a very general statement
 about Post Office's house-style of giving evidence. That shows that from now on you are likely to disbelieve
 Post Office's evidence because it comes from
 Post Office.  In my submission that is how it would be
 viewed by an objective observer."
In fact, Lord Grabiner was so assured that towards the end of his allotted time he stopped making arguments and just read out sections of the judgment, adding:
"Well, I mean, your Lordship can imagine what I would be saying about that, but my submission is that the passage speaks for itself.
"
It was quite something to behold.

Caveata Mantra

The coup de grace was the trap Lord Grabiner laid for the judge at the beginning of the day. Lord Grabiner would read out sections of J Fraser's judgment, selectively omitting comments such as: "I make it quite clear that I do not speculate... nor is it possible to know what the outcome
 of the trial of the Horizon Issues will be later this
 year."

J Fraser would mention that Lord Grabiner had omitted his qualifying statements and caveats and Lord Grabiner would acknowledge this, but add he was coming to it later.

Eventually he did. These qualifiers were a "mantra" said Lord Grabiner, which were fooling no one:
"It...  would not
 convince the observer that your Lordship had not
 pre-judged the issues which still fall to be tried by
 your Lordship.
.. The real question is whether in the eyes of the
 reasonable observer that is a real possibility that
 your Lordship has prejudged matters which are still due to be tried by you... Lord Justice Bingham says: "In most cases we think the answer, one way or the other, will be obvious, but if in any case there is real ground for doubt that doubt should be resolved in favour of recusal." Your Lordship's use of what I have called, I hope not disrespectfully, the mantra, demonstrates your
 understanding that you should not have made findings for
 example about Horizon or breaches of contract or
 breaches of duty.
 Our case is that your Lordship nevertheless went
 ahead and made those findings."
You can read the transcript here and my unrolled live tweets here. It must be hard to hear one's professional integrity being taken apart in such an eloquent and public way. But the judge took it on the chin. And after lunch, he turned to Patrick Green QC for the claimants.

Green machine

Mr Green went in all guns blazing, hooting:
"this is an application without merit
 and without foundation... it wholly ignores the proper role of context.... it appears to proceed on
 a misapprehension as to the correct approach to analysing apparent bias [and] it proceeds
 specifically on a misapprehension as to the proper judicial assessment of the proceedings."
He went on to address the mythical "fair-minded and informed observer":
"The informed observer is
 someone who is presumed to actually have been at the trial and know what happened, not commenting on it from afar and not island-hopping between different findings and observations to make assertions about those without
 having regard to the judgment as a whole."
Really? Said the judge. Yuh-huh, said Mr Green:
"the informed observer test is (a) an
 objective one and (b) an informed one. So the informed
 observer knows about the trial as it was presented to your Lordship.
 In one case, there is even a point about knowing
 things that perhaps even weren't in the public domain
 about the trial. So "informed" I would underline in relation to the approach of the informed observer test.
"
And he was off. The main two points he made were that the Post Office was not once saying that any of the judge's findings were wrong, just that they were irrelevant. His second point was that in the context of the trial, the proceedings preceding the trial and litigation as a whole... actually they really were very relevant.

Mr Green said in the context of someone who has been through all the pre-trial shenanigans, and the framing of the way proceedings happened, the judge was justified in what he wrote in his the Common Issues trial judgment. Yet according to Mr Green, the judge was not just expected to take into account what was happening in his courtroom, he was, by case law, required to make findings on it.

Rock on

Mr Green continued:
"In fact, there is an irony in that Post Office's
 position was effectively to seek a trial that was
 one-sided, when it didn't get it, to then complain on the footing of apparent bias about that and then to invite the court effectively to consider the recusal
 application as if the trial had been one-sided, which it
 plainly wasn't."
At one stage, when discussing the admissability of written witness statements which may or may not have been written by a witness he got a bit carried away:

"when I started and certainly when my
 noble and my learned friend Lord Grabiner started, we
 didn't have [written witness statements]. You rocked up in court, the witness
 stood up and you found out what they said and then you cross-examined them without knowing what they were going
 to say.
MR JUSTICE FRASER:  I am not sure "rocking up" is right.

MR GREEN:  I might have put that a bit lightly.

MR JUSTICE FRASER:  You might have rocked up. I am not sure
 that is the correct way of putting it, in all
 seriousness. Evidence-in-chief was given orally.

MR GREEN:  Yes, evidence-in-chief was given orally.  What
 I was trying to convey, albeit rather slightly clumsily,
 was you didn't pore over somebody's evidence for weeks
 in advance of arriving at court and listening to what they were going to say."

Knuckles rapped.

Mr Green ended on a roll, giving the Post Office both barrels:
"They have adopted internally inconsistent positions in relation to the relevance of evidence and essentially tried to ride two horses going off in completely different directions, and your Lordship has had to try and manage the consequence of that, and clarify it, where possible, on credibility, still leaving an extremely unsatisfactory position, make findings in the light of the litigation as it was presented before court, and then be accused of apparent bias for having done so."
I have spoken to a number of senior people since the hearing finished, some of whom were legally qualified. They broadly agreed there is a minuscule chance the judge will recuse himself and an even smaller chance the Court of Appeal will make the decision for him.

I'm not so sure. Grabiner was good.

***************************

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Bates v Post Office recusal hearing transcript

This recusal hearing was heard today in Court 26 of the High Court's Rolls Building.

It was the busiest I have seen the court since this litigation started. Claimants Jo Hamilton, Seema Misra, Sue Knight, Pam Stubbs and Lee Castleton were present, alongside many more who are not yet publicly known.

Also in attendance was Ron Warmington, Managing Director of Second Sight, several representatives of the Communications Workers Union, Jane Croft from the Financial Times, Karl Flinders from Computer Weekly and legendary legal journalist, Joshua Rozenburg.

The only people to speak all day were Justice Fraser, Patrick Green QC and Lord Grabiner QC. Here is the transcript:

                                        Wednesday, 3 April 2019
   (10.30 am)
                           Housekeeping
   LORD GRABINER:  My Lord, on this application I appear for
       the Post Office, and I think your Lordship will be
       familiar with all the characters in the story.  I am
       with my learned friends Mr Cavender and Mr Cohen, and my
       learned friends Mr Green, Ms Donnelly, Mr Warwick,
       Mr Miletic and Ms MacKenzie appear for the claimants.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  Your Lordship will have seen our skeleton
       argument and a draft of the order that we seek.  We
       invite your Lordship to recuse your Lordship as managing
       judge of this litigation and in association with that
       application we also seek an order that the Horizon trial
       currently being heard by your Lordship should be stayed
       or adjourned, as the case may be.  And for the avoidance
       of doubt, we do not say that if this application
       succeeds, the Common Issues trial will have to be
       re-run.
   MR JUSTICE FRASER:  The Common Issues trial?
   LORD GRABINER:  Precisely.  So if we are successful, we do
       not say that that trial will be have to be re-run, which
       I think is one of the concerns expressed by the other
       side.  We do propose to appeal against your Lordship's
       judgment, and the view we take is that the matters we
       complain about can be rectified on appeal without the
       need for a retrial.
           Can I turn, then, to apparent bias.
   MR JUSTICE FRASER:  Yes, just before you do, Lord Grabiner,
       in terms of logistics, we usually have a break sometime
       round about a quarter to 12 for five or ten minutes just
       for the shorthand writers, which I know you will know is
       entirely conventional.
   LORD GRABINER:  Indeed.
   MR JUSTICE FRASER:  Although the application is set down for
       the whole day, if you could aim to finish your
       submissions some time between 12.30 and 1 o'clock, or
       1.30 at the latest.
                   Application by LORD GRABINER
   LORD GRABINER:  Yes, my Lord.
           I can deal first of all with the law very shortly by
       reference to four cases.  And I am not going to trouble
       your Lordship to turn them all up, but give you
       a reference because there are short quotes I can deal
       with.
           The first is the well-known legal test stated by
       Lord Hope in Porter v Magill, and the reference for the
       transcript is {B9.5/8/1} and it is just in
       paragraph 105, where Lord Hope says the test is, and
       I quote:
           "Whether the fair-minded and informed observer,
       having considered the facts, would conclude that there
       was a real possibility that the Tribunal was biased."
           So it is an objective test.
           The second case is the case of Otkritie v Urumov,
       and that is in bundle 9.5, tab 25, {B9.5/25/1} and it is
       at paragraph 1 of the judgment of Lord Justice Longmore,
       to the effect that bias includes conveying the
       impression of having prejudged any issue which remains
       to be decided.  And Lord Justice Longmore's observation
       is this, and I quote:
           "The concept of bias extends further to any real
       possibility that a judge would approach a case with
       a closed mind or indeed with anything other than an
       objective view; a real possibility, in other words, that
       he might in some way have prejudged the case."
           The third case I want to show your Lordship, because
       you may not be familiar with it, and there are passages
       in it that I want to draw to the court's attention, and
       that is the case of Mengiste.  It is in your Lordship's
       bundle {B9.5/23/1}.
   MR JUSTICE FRASER:  I think it is tab 24, isn't it?
   LORD GRABINER:  It is certainly tab 24 for me.
   MR JUSTICE FRASER:  It is tab 24 for me as well.
   LORD GRABINER:  Very good.  I wasn't sure if the electronics
       had caught up.
   MR JUSTICE FRASER:  Tab 24 for me is the costs law report
       version, is that the one that you have?
   LORD GRABINER:  Yes.  That case, we say, is instructive.
       I can just tell your Lordship something about it first,
       it will save going through the headnote.  There
       Mr Justice Peter Smith had criticised the evidence of an
       Ethiopian law expert witness.  He is improbably called
       Mr Jones in the case, but that was to protect him
       against possible repercussions in Ethiopia, so Mr Jones
       is just a nom de plume.
           In his judgment, he went on to criticise the
       solicitors for the party who had relied on Mr Jones on
       the basis that the solicitors had failed to educate the
       expert as to his proper functions and duties.
       Encouraged by what the judge had said, the other side
       applied for a wasted costs order against the solicitors.
           The judge granted permission for that application to
       proceed, that was stage 1, but he refused to recuse
       himself from the substantive hearing, stage 2.  The
       Court of Appeal held that the judge should have recused
       himself because of his concluded views as to the
       behaviour of the solicitors, as expressed in his
       judgment.
           If your Lordship would be kind enough to go
       paragraph 59 of the judgment of Lady Justice Arden.
   MR JUSTICE FRASER:  Give me one second, my chair seems to be
       broken, so I'm just swapping it for this one.  (Pause)
   LORD GRABINER:  Paragraph 59, my Lord, the Lady Justice says
       that she has reached the clear conclusion that this was
       an exceptional case and that there was apparent bias
       stemming from the facts of the case which meant that the
       judge should have recused himself.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  Then under various headings, the
       cross-heading is "No necessity to make the findings"
       and, and I want to emphasise the words:
           "The judge's criticisms were not, in my judgment,
       necessary to enable the judge to evaluate Mr Jones'
       evidence."
           And a few lines below that:
           "The question why his reports contained inadmissible
       material or he performed poorly as a witness, which
       I accept were likely to increase costs, were primarily
       relevant when it came to costs.  As it seems to me, the
       judge in making criticisms against the solicitors over
       their explanation to Mr Jones about his duties was
       concerned to warn off an application for a wasted costs
       order against Mr Jones."
           And that was to anticipate an application that had
       not yet been made, and your Lordship might want to
       glance at the balance of that paragraph, but I am not
       going to read it out.  And then the next cross-heading
       is "Criticisms expressed in absolute terms," and
       your Lordship might like to read that paragraph through.
           Then the other cross-heading is "Repetition, further
       criticism and concern to meet criticisms of the judge's
       conduct."
           And the learned Lord Justice says:
           "While I might not have reached the same conclusion
       if a criticism had been made in absolute terms on
       a single occasion, here the judge accepted that there
       were six criticisms of the appellant's solicitors in the
       stay judgment."
           And I wasn't going read the balance of that, but if
       your Lordship would be kind enough to go to
       paragraph 63, about seven or eight lines down:
           "The second principle is that a judge who is doing
       no more than discharge his judicial function does not
       create an impression of bias, which is
       well-established."
   MR JUSTICE FRASER:  I'm sorry, I have reached 63, but ...
   LORD GRABINER:  63, you will see it is split into the first
       principle and then the second principle, about six lines
       down.
   MR JUSTICE FRASER:  I see, yes.
   LORD GRABINER:  "A judge who is doing no more than his
       discharge his judicial function does not create an
       impression of bias, which is well-established.  What
       occurs in that situation is adjudication, not unsought
       findings."
           And I emphasise those words, "unsought findings".
       And then about four or five lines below that:
           "Where there is an issue of apparent bias, the test
       in Porter v Magill must be fearlessly applied by this
       court and the fourth and fifth principles overlook the
       possibility that mere criticism expressed in absolute
       terms may of itself be extreme and unbalanced because
       the impression to even the fair-minded observer that the
       door has not been left open for whatever explanation the
       party or non-party, who has not yet had the chance of
       providing that explanation, may have to say."
           And I shall be submitting that your Lordship does
       express himself in the judgment in very firm terms.
           The fourth case, and it is probably helpful to --
       I have got a hard copy, old school bundle with me, but
       the fourth case perhaps we can also just briefly look
       at, and this is the final case, is Stubbs v The Queen
       {B9.5/29/1}.
   MR JUSTICE FRASER:  Yes, it is.  I too am using an old
       school bundle.
   LORD GRABINER:  Very wise.  But again, I don't know if
       your Lordship is familiar with this case, it is an
       appeal to the Privy Council in a murder trial from the
       Caribbean, and you can see in the sort of second line of
       the headnote:
           "In 2007 a second trial took place before
       a different judge and jury, in the course of which the
       judge made certain rulings relating to the admissibility
       of evidence and dock identification and ruled against
       the submission of no case to answer.  Then that trial
       was aborted."
           When there was in due course, I think, a third trial
       and the defendants were convicted, the Court of Appeal,
       on hearing that appeal:
           "It transpired that the judge who had sat in the
       second trial was a member of the Court of Appeal in the
       third trial and the Court of Appeal rejected the
       defendant's objection --"
           This is just above F:
           "-- that the participation of the same judge in the
       second trial and in the appeal would not give rise to a
       reasonable apprehension of bias, since the aborted trial
       had taken place some seven years earlier, the judge
       wouldn't be sitting alone, but in a panel of two other
       judges."
           So they seemed to think it didn't matter if one of
       the three infected the other two, but the Privy Council
       took a different view.  Just from the top of the
       headnote in the holding:
           "Whether fair-minded and informed observer having
       consider the facts would conclude that there was a real
       possibility that the Tribunal was biased, that the
       appearance of bias as a result of pre-determination or
       pre-judgment was a recognised ground for other recusal."
           If your Lordship would be kind enough to just flick
       to paragraph 16 in the judgment of Lord Lloyd-Jones in
       F, between F and G, a couple of lines below F:
           "The issue will only arise in all the circumstances
       where prior involvement is such as might suggest to
       a fair-minded and informed observer that the judge's
       mind is closed in some respect relevant to the decision
       which must now be made."
           Then after some citation of Locabail, which I will
       come back to later on, the learned judge says:
           "However, relevant factors are likely to include the
       nature of the previous and current issues, their
       proximity to each other and the terms in which the
       previous determinations were pronounced."
           And in paragraph 17:
           "It is not acceptable for a judge to form or to give
       the impression of having formed a concluded view on an
       issue prior to hearing full argument by all parties on
       the point."
           So that is all I wanted to show your Lordship for
       the moment, but judging from my learned friend's
       skeleton argument, the impression I have is that what
       I have just been showing your Lordship is not
       controversial.
           Then it is also necessary, we suggest, to bear mind
       the big picture.  The incomplete disclosure and evidence
       itself relates only to a tiny proportion of the claimant
       group.  There were six lead claimants in the
       Common Issues trial out of, I gather, about 550-odd
       claimants, and the 550-odd are themselves a small
       proportion of the many thousands of Subpostmasters
       currently serving, so there must also be some historic
       examples as well of people who are no longer acting as
       Subpostmasters, and we don't have any disclosure or
       evidence from any of that wider group.
   MR JUSTICE FRASER:  But there would never be disclosure of
       Subpostmasters who weren't claimants, would there?
   LORD GRABINER:  Well, in principle, that is quite correct,
       but there would be disclosure from those who were.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  And I suppose in theory, it might be
       possible for disclosure to be widened, notwithstanding
       the fact that the others are not parties as claimants.
       I don't know.
   MR JUSTICE FRASER:  In terms of third party disclosure?
   LORD GRABINER:  Yes, exactly.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  But it is a theoretical possibility,
       I readily accept.
   MR JUSTICE FRASER:  But you are entirely right, there were
       six lead claimants out of 557 claimants in the
       litigation.
   LORD GRABINER:  I am grateful.  Two points follow from that.
       First of all, the danger of reaching premature
       conclusions is magnified because the incomplete
       evidential picture for the lead claimants is itself part
       of a larger unexplored evidential canvass, in my
       submission.
           And secondly, the consequence of making that mistake
       would be great, given -- or could be great, given that
       this litigation extends far beyond the lead claimants'
       claims.
           Turning to this litigation.  Obviously your Lordship
       is very familiar with it and the various disputes
       between the parties, and I am not going to even attempt
       to rehearse the details.  The starting point of my
       submissions is the proper scope of what is called the
       Common Issues trial.  The Common Issues are set out in
       your Lordship's paragraph 45 of the judgment, very
       helpfully.
           And then paragraph 1 of the order of the
       27 October 2017, just for the transcript, that is
       {B9.3/2/1}, gave an accurate and convenient precis of
       the Common Issues, and paragraph 1 simply says:
           "Issues relating to the legal relationship between
       the parties."
           So it couldn't be clearer or more concise than that.
       For convenience, we have summarised the Common Issues
       under four headings in paragraph 18 of our skeleton
       argument.
           We have comprehended every item there, and
       paragraph 18 summarises each of those items.
       Your Lordship might want to glance at that.
   MR JUSTICE FRASER:  Just give me a second.  I had been
       working off the schedule to the order, but I am sure
       they are correctly identified.  Paragraph 18 of your
       skeleton?
   LORD GRABINER:  Paragraph 18 of our skeleton on page 7.  It
       identifies all the issues, but puts them under
       particular sort of generic headings.
           In our submission, there was little scope for
       factual evidence at the Common Issues trial, looking at
       those items.
           Then pre-trial at the 22 February 2018 hearing,
       your Lordship said that you had, and I quote "reminded
       yourself that the Common Issues were" and I quote
       "purely points of construction".  And the reference for
       that, but we don't need to go to it, is the
       22 February 2018 hearing at page 9D and that is
       {B9.3/2/85}.  That is probably a transcript page
       reference.
           Now, that was, in my submission, an important and
       accurate statement.  Your Lordship repeated a version of
       the same point several times at a number of
       interlocutory hearings thereafter.  The parties were
       entitled to rely on those clear and correct indications
       as to the scope of the Common Issues trial.
           As your Lordship rightly said on various occasions,
       evidence was only admissible if it went to the
       Common Issues.  You said that at the 5 June 2018 hearing
       at page 57E {B9.3/2/271} and your Lordship also said
       that the only relevant evidence for contractual
       construction is knowledge common to the parties, when
       the relevant contract was made and with which, if I may
       say so, I respectfully agree, 22 February 2018 hearing
       at page 9E, {B9.3/2/85}, and the other point for that
       trial was a much narrower one, namely whether the lead
       claimants had been properly notified of the contractual
       terms, which obviously was an issue in the case in
       Common Issues 1.
   MR JUSTICE FRASER:  I think it went to a number of
       Common Issues, due to onerous and unusual terms.
   LORD GRABINER:  Indeed, under the Unfair Contract Terms Act.
   MR JUSTICE FRASER:  Onerous and usual terms in terms of
       incorporation and then if incorporated, whether they
       were reasonable under the Unfair Contract Terms Act.
   LORD GRABINER:  Exactly, and your Lordship is familiar with
       the successive trial structure that was set up under the
       litigation management arrangement.  Under that scheme,
       in respect of each trial, there needs to be disclosure
       and witness statements geared to the issues in the
       particular trial.
           The Common Issues trial was never intended to decide
       issues which fall to be investigated and determined in
       some later trial, and still less to provide a platform
       for wide-ranging evidence, for example on the Horizon
       Issues or alleged breaches of duty.  That is an
       important point.
           Prior to and during the Common Issues trial, the
       Post Office on a number of occasions drew attention to
       its developing concern that the evidence and arguments
       adduced by the claimants might lead your Lordship, when
       giving judgment, to trespass on matters outside the
       Common Issues which were yet to be tried, for example
       Horizon or breach issues.
           The relevant passages are scheduled to our skeleton
       argument, which I think your Lordship will have seen.
       Just in summary, they include transcripts of pre-trial
       hearings, extracts from our trial skeleton, passages
       from Mr Cavender's oral opening and closing at the
       trial, as well as extracts from the Post Office's
       written closing at trial.  But in the event, I am
       I afraid, those concerns, in my submission, turned out
       to be well-founded.
           In addition to our criticisms of the way the
       judgment deals with issues outside of the Common Issues,
       we also complain about prejudicial and irrelevant
       observations made in the judgment about Post Office and
       its witnesses.
           Both categories of complaint, taken separately or
       together, would lead the fair-minded observer to
       conclude that there is at least a real possibility that
       your Lordship will not be able to judge the remainder of
       these proceedings impartially.  I regret making that
       submission, but I do make the submission firmly.
           Now, in these submissions, I propose to focus on the
       paragraphs in your Lordship's judgment we rely on and
       which we have given notice of.  In the interests of
       time, I was not proposing to take your Lordship through
       Mr Parsons' 14th and 15th witness statements, which were
       prepared and served specifically for this hearing, and
       I am sure your Lordship has looked at those.
   MR JUSTICE FRASER:  They identify effectively pre-trial
       transcript passages and then in the 15th, the actual
       specific judgment passages.
   LORD GRABINER:  My Lord, yes.  And similarly, I would prefer
       to take our skeleton argument as read.  I should make it
       clear that we rely on everything in those witness
       statements and in our skeleton argument in support of
       this application.
           Now, as to the first category, I want to go to the
       paragraphs in the judgment which show that your Lordship
       made many findings and numerous observations both about
       the facts and the witnesses, which, in the first place,
       were not necessary for the purpose of deciding the
       matters which were the subject of the Common Issues
       trial, and that this was done without disclosure and
       witness evidence, and secondly, because your Lordship
       adopted that approach, the judgment prejudges many
       matters, including technical characteristics of the
       Horizon system and supposed breaches of contract and
       duties on the part of Post Office, which are still to be
       dealt with in the Horizon trial and the other future
       trials.
           Now, it would be helpful if your Lordship would be
       kind enough to take up my learned friend's skeleton
       argument.  I just want to make a brief reference to
       a couple of the paragraphs because my learned friend's
       skeleton helpfully narrows the dispute.  If,
       your Lordship, you have got that skeleton handy, if
       your Lordship would be kind enough to go to paragraph 8.
   MR JUSTICE FRASER:  This is Mr Green's skeleton?
   LORD GRABINER:  My Lord, yes.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  What he says in paragraph 8 is:
           "In the judgment, the judge correctly resolved
       matters that were put in issue before him.  He did so in
       the light of the evidence adduced, how it was challenged
       and the case advanced by the parties before him.
       A party can't be surprised when a judge makes findings
       on a point when the same party has elected to adduce
       evidence on that point or to cross-examine on it."
           In paragraph 9:
           "The judge rightly made his assessment of the above
       matters and resolved the Common Issues."
           And I really emphasise those words:
           "In the light of the parties' pleaded cases, in
       particular Post Office's expressly pleaded case on
       issues of construction and its procedural election not
       to amend that case, this approach was a proper and
       necessary part of his judicial assessment of the
       proceedings before him."
           And I emphasise those words as well.  Then in
       paragraph --
   MR JUSTICE FRASER:  There is no dispute that I had to
       consider and resolve the Common Issues, I think.
   LORD GRABINER:  Indeed, that is common ground.
   MR JUSTICE FRASER:  And I had to do that in respect of the
       six lead claimants as well.
   LORD GRABINER:  Indeed, absolutely.
   MR JUSTICE FRASER:  And insofar as there were issues of
       fact, because there were issues of contract formation --
   LORD GRABINER:  Indeed.
   MR JUSTICE FRASER:  -- that went to each of the six.
   LORD GRABINER:  Indeed.
   MR JUSTICE FRASER:  So I assume your position on that is
       that insofar as fact had to be resolved to identify the
       contractual relations of each of those six, that was
       a necessary part of the Common Issues trial.
   LORD GRABINER:  Absolutely, I respectfully agree.
   MR JUSTICE FRASER:  All right.
   LORD GRABINER:  If your Lordship would look at paragraph 12,
       my learned friend says:
           "In any event, these matters were not irrelevant.
       In many cases, they were relevant because of
       Post Office's expressly pleaded case as to how the
       relevant contract should be construed or in the
       resolution of issues directly arising from challenges
       mounted before the court by Post Office's own
       cross-examination of lead claimants."
           You see how the point has now been elided away from
       the contract terms into the cross-examination debate.
           Then in 13:
           "It does not lie in the Post Office mouth to
       complain that the judge resolved matters that the
       Post Office itself elected to put in issue and contested
       before him or on which it expressly invited him to make
       findings, still less as a basis upon which to seek to
       derail the entire group litigation by alleged apparent
       bias."
           Then in paragraph 17:
           "The court cannot be fairly criticised for making
       a judicial assessment of both parties' cases, evidence
       and witnesses in the usual way, particularly on the
       basis of the parties' respective pleaded cases and the
       way their cases were actually advanced at the
       Common Issues trial."
           So there is a clear departure away from the contract
       terms, as your Lordship put it to me a few moments ago,
       and into matters such as what was pleaded and what was
       cross-examined and so on.
   MR JUSTICE FRASER:  But just pausing there just for
       a moment, because your expression "the cross-examination
       debate" I think as useful shorthand term for it.  But if
       the Post Office was challenging a particular lead
       claimant's veracity and cross-examined on particular
       material to demonstrate that that witness should not be
       believed, and there is an issue of fact as to whether
       that witness' contractual relations with the Post Office
       were formed on X, Y, or Z, does that mean that the
       material in respect of which cross-examination has been
       performed remains irrelevant or does it become relevant?
   LORD GRABINER:  If the cross-examination was concerned to
       deal with the Common Issues, entirely appropriate to
       deal with -- to make findings in relation to that
       cross-examination, yes.
   MR JUSTICE FRASER:  What if it was done to deal with the
       credit of the witness, which is itself in issue in
       respect of their contract formation?
   LORD GRABINER:  Well, as I say, if it is concerned with
       contract formation, fair dos, but insofar as there might
       have been cross-examination which went to wider issues
       at the trial, which I understand is the case, that is
       driven essentially by the background about whether or
       not the material that was incorporated into the
       claimants' witness statements was admissible and
       relevant material.
           One of the concerns on this side was not to leave
       unchallenged matters which shouldn't have been in
       evidence at all, because they were not relevant to the
       Common Issues as defined.  That, I think, is the area
       for disagreement, and I will develop it a little bit
       further, because when we look at various paragraphs in
       the judgment, you will see how that distinction can be
       demonstrated from the paragraphs in the judgment that we
       rely upon.
           But that was a grumbling issue all the way through,
       because at the outset it was anticipated that that would
       not be a problem, and indeed your Lordship at one stage
       had actually invited the possibility that there would be
       a strike-out application in respect of the witness
       statements on the grounds that my side were saying that
       the witness statements contained matters of fact which
       were wholly irrelevant to the Common Issues.
           In the event, when that application was made,
       I think your Lordship said that would either be dealt
       with by way of a strike out or by way of no
       cross-examination.  In the event, the strike-out
       application was made, but was rejected by your Lordship.
       But, of course, my side were then left in a quandary,
       not knowing whether or not your Lordship would take
       account of irrelevant material, irrelevant for the
       purposes of the trial of the Common Issues.  That,
       I think, is the area for difference.
   MR JUSTICE FRASER:  The strike-out application was first, or
       concerns about scope of evidence were first mentioned
       before the witness statements had been served, so there
       was a lot of debate about the scope of evidence that
       might be served in the absence of seeing what that
       evidence was.
   LORD GRABINER:  Yes.
   MR JUSTICE FRASER:  But I understand your submission.  Your
       submission is as a result of the judgment on the
       strike-out application, you, the Post Office, was in
       a quandary about what it could or should do in respect
       of the evidence that had not been struck out, is that
       correct?
   LORD GRABINER:  Precisely.  What would be very, very
       unattractive, in the face of the events that had
       happened, that if, by the time you got to the trial, my
       learned friend Mr Cavender spent a lot of his time
       during my learned friend's Mr Green's cross-examination
       of witnesses jumping up and down saying, "You can't put
       that because it doesn't arise in the Common Issues
       trial", nothing could be more irritating either to
       Mr Green in his cross-examination, still less to the
       learned judge, because that is just not the way to
       proceed.
           So that said, the only way in which you can cover
       yourself, you either say nothing at all, which is a high
       risk strategy because you don't know what the judge's
       thinking is or what relevance the judge may apply to the
       matters that have been the subject of the questioning,
       or you actually indulge yourself in some
       cross-examination.
           But it doesn't following that because you have done
       that, by some kind of process of osmosis, the definition
       of the Common Issues are suddenly being dramatically
       expanded or increased.  It doesn't change the definition
       of the Common Issues in the slightest.  It means there
       has been some cross-examination on some irrelevant
       material, which is perfectly reasonable.
           But I take your Lordship's point that if the
       cross-examination goes to credit and was in respect of
       a matter such as what were the contract terms, or some
       other issue under the Common Issues' rubric, then that
       would be fair dos, and if your Lordship came to
       a conclusion about that, that would be reasonable.
           But on the other hand, your Lordship came to
       a conclusion about the credibility of some witness, but
       in the context of a debate about breach of contract, in
       my submission, that would be wholly irrelevant and
       should not have entered upon the debate.
           Similarly, if it was an issue about the working of
       Horizon, the idea or the notion, as we shall see, I am
       afraid, when we get to the paragraphs, that
       your Lordship expresses a view about the witnesses'
       position in relation to a Horizon Issue for example, in
       my submission, that was an irrelevant consideration and
       should not have figured in the judgment on the
       Common Issues.  I hope your Lordship understands where
       I am coming from.
   MR JUSTICE FRASER:  No, I do.  That is very clear.  But just
       to take a worked example, for example, in respect of
       credit, there were issues of fact concerning
       Mr Abdulla's contract formation.
   LORD GRABINER:  Indeed.
   MR JUSTICE FRASER:  And the claimant called, as is
       conventional, its evidence of fact first and Mr Cavender
       cross-examined Mr Abdulla quite extensively by reference
       to what I will call his suspension interview, which was
       the point at which the Post Office effectively sought
       his side of the story for explanations for shortfall in
       his branch accounts.  In that interview, it was put to
       Mr Abdulla that he had admitted false accounting, which
       is a criminal offence, and that obviously went to his
       credit.
           Now, I assume, pausing there at that point, it can't
       be said -- or maybe it can, but I would be grateful for
       your guidance or your submissions on it.  Can it be said
       that that cross-examination of Mr Abdulla was irrelevant
       because it went to the circumstances in which he was
       suspended or --
   LORD GRABINER:  The answer to that is yes.
   MR JUSTICE FRASER:  You say it was irrelevant.
   LORD GRABINER:  Completely.
   MR JUSTICE FRASER:  When the Post Office made submissions in
       closing that Mr Abdulla had been lying, how can those
       submissions properly be considered without taking
       account of the fact that the Post Office had put to
       Mr Abdulla that he was guilty of a criminal offence?
   LORD GRABINER:  Would your Lordship bear with me?
       I understand the point that you are putting to me.
       I intend to come to the Mr Abdulla story in the judgment
       and if I may, I will deal with it at that point.
   MR JUSTICE FRASER:  Yes, of course, yes.
   LORD GRABINER:  And then as I say, just coming back to the
       point about those paragraphs in my learned friend's
       skeleton --
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  -- the claimants say that your Lordship
       resolved matters in issue before you, and so they accept
       that your Lordship has reached concluded findings.  And
       it follows that the essential difference between us is
       that the claimants say that those findings were
       necessary, that is their word in paragraph 9, to decide
       the issues before you, and we say the opposite.
           So that is a short point, but I think it does narrow
       the issues somewhat.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  Now, in support of their argument that
       your Lordship had to decide these matters, they make
       some play of the way that Post Office conducted the
       trial.  I anticipated these points, in part at least,
       a few moments ago in my exchange with your Lordship, but
       I can summarise them now.  There are really two answers
       to that point.
           First, as explained in Parsons 14 and our skeleton,
       this is irrelevant, ie the way that Post Office
       conducted the trial.  At all times, both before and
       during the trial, Post Office made clear its position as
       to the proper scope and limits of the Common Issues
       trial.  We never, ever altered that position, and
       nothing that we did or said can fairly be said to have
       amounted to some kind of waiver or enlargement of the
       definition of those issues.
           Secondly, the fact that Post Office was reluctant to
       allow irrelevant evidence to go unchallenged cannot make
       that evidence suddenly relevant.
           The other side's proposition, if they do make
       a proposition to that effect, is simply a non sequitur.
       The conclusions that your Lordship reached either were
       or were not necessary to decide the matters that were
       before you.
           Now, I would like to turn next to the judgment.
       There are really seven matters in respect of which we
       submit that your Lordship reached premature concluded
       findings.  If I can just give you the seven items first
       and then I am going to deal with each of them through
       the paragraphs in the judgment.  I am sorry, it is
       a tedious process, but it is the only way to do this
       exercise.
           So the seven matters are as follows: first of all,
       Subpostmasters' experiences of using Horizon and its
       functionality, including Subpostmasters' ability to
       identify the causes of shortfalls; secondly,
       Post Office's alleged knowledge of problems with
       Horizon; thirdly, the quality and operation of the
       helpline, in particular as an adjunct to the accounting
       system; fourthly, the quality of Post Office's
       investigations into shortfalls; fifthly, demands for
       payment and threats of legal action allegedly made by
       Post Office; sixthly, the circumstances in which
       Subpostmasters' contracts were suspended or terminated;
       and seventhly, the adequacy of training.
           We need, as I indicated, to look at the relevant
       paragraphs.
           So taking the first item, Subpostmasters'
       experiences of using Horizon and its functionality,
       including Subpostmasters' ability to identify the causes
       of shortfalls, so the way I propose to do this, and
       I hope it accords with what would be convenient for
       your Lordship, is if you have a copy of the judgment
       handy --
   MR JUSTICE FRASER:  I do.
   LORD GRABINER:  -- then I will just go to the paragraphs,
       and we have given full notice of all the matters that we
       rely upon.  So the first paragraph I want to go to is
       172 {B7/29/64}.
   MR JUSTICE FRASER:  Is this numbered the first of your seven
       categories?
   LORD GRABINER:  Yes.
   MR JUSTICE FRASER:  Yes, all right.
   LORD GRABINER:  So when I have just gone to the relevant
       paragraphs, I am going to make a very brief submission,
       invariably I will make a brief submission in relation to
       the bit that we just emphasised.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  So in 172, the emphasised passage is:
           "Mrs Stubbs is a careful and honest witness.  She
       did her best at the time to try and work out what was
       happening, the reasons for it, and also notified the
       helpline on numerous occasions, as well as keeping her
       own separate paper records in an attempt, or more
       accurately numerous and concerted attempts, to work out
       precisely how these shortfalls could have arisen.  None
       of the Post Office personnel involved at the time with
       Mrs Stubbs, who attempted to obtain some input or
       explanation from Fujitsu were called as witnesses."
           Then several lines below there:
           "Mrs Stubbs ran the branch perfectly satisfactorily
       for many years."
           And a couple of lines below that:
           "On the evidence before me in this trial, and upon
       my assessment of Mrs Stubbs as a witness, I consider
       that she is reliable, thorough and honest."
           And honest."
           For completeness, there you say:
           "I accept her account of contract formation and the
       fact that she never received, nor did she have any
       knowledge of, the SPMC."
           Your Lordship has come to a clear, concluded view in
       that paragraph as to her evidence and credibility.
       Those views went far beyond what was necessary to reach
       a conclusion about the contractual documents she
       received.  If, at a subsequent trial, her credibility is
       challenged, the claimants will obviously rely upon that
       passage in your Lordship's judgment as showing that
       your Lordship should and indeed would be bound to accept
       the correctness of her evidence.
           So in other words, it would have been perfectly
       possible for your Lordship to have accepted her evidence
       about the contract formation, but without making all the
       observations that you have made, particularly in
       relation to helpline and the satisfactory running of the
       branch that she had undertaken over the period of the
       contract, ie post-contractually.
   MR JUSTICE FRASER:  You have rather missed out the two
       sentences in the middle of that paragraph that say:
           "I make it quite clear that I do not speculate on
       any of that, nor is it possible to know what the outcome
       of the trial of the Horizon Issues will be later this
       year."
   LORD GRABINER:  No, you do say that, and I am going to come
       to that point towards the end of these submissions --
   MR JUSTICE FRASER:  I understand.
   LORD GRABINER:  -- because your Lordship does make that kind
       of point, not always, but fairly regularly, during the
       judgment.
   MR JUSTICE FRASER:  Yes, all right.
   LORD GRABINER:  I am going to say something about that, if
       I may, at the appropriate moment.
           Then 217, paragraph 217, this deals with the
       position of Mr Sabir.  And there are, just for context
       your Lordship will glance down -- you must be, I am
       afraid, very familiar with this judgment, of course --
       but if you go down to 217, subparagraph 8, you say:
           "Post Office's case is that Mr Sabir falsified his
       accounts and misstated his stock by completing the
       branch trading statements from the period he discovered
       the mistake."
           Then in 218:
           "Mr Sabir's account is substantiated by the audit
       report itself, prepared by the auditors two days after
       the audit."
           And then on to 219, five or six line down:
           "Any findings as to specific breach or breaches must
       await a later trial.  I do, however, take this evidence
       into account in reaching my conclusions on the category
       two facts that are disputed by the Post Office. I deal
       with that at the end of my review."
           Now, an important issue in the Horizon trial is how
       easy or difficult it was for Subpostmasters to work out
       from Horizon what the accounting position was.  In this
       passage, your Lordship has reached firm conclusions on
       the facts and also on the credibility of Mr Sabir.
       Your Lordship also says here that you are not making any
       findings on breach.  As I say, I will come back to that
       and similar sentences in the course of these
       submissions.
           302, paragraph 302.  This is in relation to
       Mrs Stockdale, and it is the third sentence.
           "There were no explanations for these [this is
       experience of running the branch, not a happy one,
       unexplained shortfalls and so on] and there was no way
       available for her to get to the bottom of them either."
           At 309, a few paragraphs on:
           "Mrs Stockdale was obviously in an extremely
       difficult position.  She did not know what product had
       caused her loss."
           And at 310:
           "She felt that she had no choice but to agree.
       I find that on the options presented to her at the time,
       she indeed had no choice but to agree."
           And in 311:
           "Mrs Stockdale then took very sensible and extremely
       thorough measures ..."
           Then your Lordship describes the measures, and then
       several lines down in the same paragraph:
           "She explained that she spent hours with the
       records, including her own paper records, trying to
       investigate.  These shortfalls simply kept occurring and
       she could not work out why."
           In these passages, your Lordship reached conclusions
       as to how easy or difficult it was for Subpostmasters to
       use Horizon to get to the bottom of shortfalls, and
       alongside that, your Lordship made broad findings as to
       the claimant witnesses' credibility.  So again, in my
       respectful submission, this has nothing to do with
       contract formation issues which that trial should have
       been concerned with, but everything to do with matters
       yet to be the subject of future trials.
           In 824 --
   MR JUSTICE FRASER:  Before we go to 824, though,
       Mrs Stockdale was also accused of a criminal offence in
       her cross-examination.
   LORD GRABINER:  Right.
   MR JUSTICE FRASER:  There was a dispute of fact about what
       was said to her at an interview before she was
       appointed.  So in terms of resolving the dispute of fact
       at the interview, do you say I should have made
       a finding as to her -- or I was entitled to make
       a finding as to her credit, but in doing so, shouldn't
       have taken account of anything to do with her departure
       from the Post Office?
   LORD GRABINER:  I do say that, yes.
   MR JUSTICE FRASER:  You do?
   LORD GRABINER:  Yes.
   MR JUSTICE FRASER:  Thank you very much.
   LORD GRABINER:  Then in 824, this is in relation to
       Mr Bates.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  The last couple of sentences:
           "He realised that the information for him to do so
       was simply not available to him or to any Subpostmaster
       in a branch.  The Horizon system did not allow him to do
       this."
           Now, that is a conclusion of fact, but it is wholly
       irrelevant for the purposes of the Common Issues, in my
       submission.
           That is all of piece with your Lordship's findings
       in paragraphs 819 and 852.  If we go to 819:
           "The whole issue with the information available to
       an SPM on Horizon is that they could not identify
       discrepancies or shortfalls or understand the basis on
       which transaction corrections [TCs] with which they
       disagreed were issued."
           Then in 852, roughly in the middle of the
       paragraph --
   MR JUSTICE FRASER:  852?
   LORD GRABINER:  My Lord, yes.
   MR JUSTICE FRASER:  Just give me a second.  Yes.
   LORD GRABINER:  "Unexplained shortfalls or discrepancies
       became apparent at the end of a branch trading period.
       It was simply not possible, on the information available
       to an SPM, on the Horizon system, for them to identify
       the day, product, and still less the time of day that
       was responsible for this."
           In my submission, that is classically a Horizon
       Issue, but your Lordship has reached, on that point,
       a concluded view.
           Paragraph 569, that is the famous paragraph.  It has
       got lots of factual matrix points annexed to it.
       Your Lordship will recall that paragraph.  It is the
       paragraph with lots of subparagraphs.
   MR JUSTICE FRASER:  Where I go through category 2 and
       category 3 and make findings as to the factual matrix,
       yes.
   LORD GRABINER:  And there are just a few of them that I want
       to make reference to.
   MR JUSTICE FRASER:  I think it might break a record as being
       the longest paragraph in the judgment, which is probably
       not a particularly good record to break.
   LORD GRABINER:  You will be relieved to know that I am not
       going to go through all the paragraphs.
   MR JUSTICE FRASER:  It runs on for a number of pages.
   LORD GRABINER:  Yes.  The ones that I want to pick on are
       51, and your Lordship says:
           "The introduction of Horizon limited the claimants'
       ability to investigate apparent shortfalls, particularly
       as to the underlying cause thereof.  Both this and 50
       immediately preceding it are obvious on the evidence and
       could readily have been agreed.  It can't sensibly be
       argued to the contrary, in my judgment."
           So that is an Horizon conclusion, paragraph 61:
           "The Post Office has, on occasion, detected that
       Horizon generated errors, caused the appearance of
       shortfalls and errors which the claimants themselves had
       not been able to identify as the cause of those apparent
       shortfalls."
           Now, these are all matters for the Horizon trial.
       These findings are made in general and unqualified
       terms.  They have a wide-ranging impact and are not
       realistically going to be challengeable in later trials
       in the light of further evidence and disclosure, because
       what will be said when there is a debate about this in
       a future trial, as inevitably there will be, is that the
       other side will point to this analysis of your Lordship
       and it is going to be impossible, in my respectful
       submission, and unrealistic to expect your Lordship to
       depart from those conclusions.
           In 54 to 57, which I think you aggregate, the
       passage there:
           "I cannot make detailed findings about Fujitsu's
       role on the basis of the evidence before me.  However,
       it is clear that Fujitsu were able to obtain greater
       information about a particular branch's transactions
       than either the Post Office or the Subpostmaster."
           Then you say:
           "How this was done and whether it included providing
       a data transfer service between the central data centres
       and clients of Post Office must await the Horizon
       trial."
           Notwithstanding that final caveat, this passage also
       contains a clear finding on a Horizon Issue.  The same
       is true of the passage at 569, factual matrix point 59.
   MR JUSTICE FRASER:  Which Horizon Issue does that make
       a finding on?
   LORD GRABINER:  Which one, my Lord, 59?
   MR JUSTICE FRASER:  No, before that, I think you said 54 to
       57 makes a clear finding on a Horizon Issue.
   LORD GRABINER:  Yes.
   MR JUSTICE FRASER:  Which Horizon Issue?  Maybe we can come
       back to it if you want to.
   LORD GRABINER:  I think the point being here that the
       information that should have been provided by the
       Post Office or should have been available to the
       Subpostmaster was not available, but it was apparently
       available to Fujitsu, so it is a breach issue.
   MR JUSTICE FRASER:  Understood.
   LORD GRABINER:  Then matrix point 59, your Lordship says:
           "I find in some instances there was discussion
       internally at the Post Office about the altering of
       branch transaction data directly and also of the
       Post Office and of Fujitsu carrying out changes to
       Horizon and/or transaction data which could affect
       branch accounts.  Mrs Van Den Bogerd accepted this could
       be done.  Further detailed findings on this will be
       dealt with in a later trial."
           So the implication from that is that you have made
       some findings there and that more detailed ones would,
       in fact, be dealt at the later trial, but for some
       reason, your Lordship thought it was appropriate in that
       trial to make those conclusions which I have just
       identified.
           Can I go to the next heading, which is "Post
       Office's alleged knowledge of problems with Horizon".
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  This is starting with paragraph 541.  There
       your Lordship says:
           "Secondly, a number of contemporaneous documents
       internal to the Post Office show that there has been, at
       least to some degree, an awareness of Horizon problems
       within the Post Office itself over a number of years."
           Then in 543, in about the second or third lines, you
       say:
           "Behind the scenes, there were at least a number of
       people within the Post Office who realised that there
       were difficulties with the Horizon system."
           Then in paragraph 1115, so you have to jump forward,
       your Lordship says:
           "Horizon was introduced in 2000 and from then
       onwards, unexplained discrepancies and losses began to
       be reported by SPMs.  Internal documents obtained in
       this litigation show that some personnel within the
       Post Office believed at the time that at least some of
       these were caused by Horizon."
           And then the passages that I have been emphasising
       in those paragraphs express a view on Post Office's
       internal knowledge of the alleged problems with Horizon.
           Now, those findings are going to be relied upon by
       the other side in support of their allegations that
       there was here deliberate concealment and deceit on the
       part of Post Office.
           Now, those are matters which are to be dealt with in
       later trials.  They are very, very important findings
       and holdings and they are not provisional, they are
       concluded views.  And they are undoubtedly matters which
       will going to arise in the later trials.
   MR JUSTICE FRASER:  But on that point, because it is,
       I think, notable that you say those findings are going
       to be relied upon to found deceit, if one goes back to
       the extracts from the documents and look at 542, which
       is where the reasons that underpin what I have said in
       541 are identified, and have a look at 541.
           At 542, for example, just looking at the first
       extract of the contemporaneous document which is an
       email:
           "Both Frank Manning and Sue Lock work for
       Post Office."
           Ignore the underlining because that is my
       underlining, but if you look over the page, this is in
       relation to Mrs Stubbs, who was having certain problems
       with Horizon, the phrase, "It is Horizon related", which
       the sender of that email chose to put in bold.  It then
       goes on to say:
           "The problems have only arisen since install and the
       postmistress is now barking, and rightly so in my view.
       Help, please."
           Do you say that the conclusion of what that document
       shows, which I have summarised in 543, is something that
       I shouldn't have done?
   LORD GRABINER:  Definitely.
   MR JUSTICE FRASER:  So I shouldn't have given the summary of
       the document.
   LORD GRABINER:  Definitely.  Whether you did or not, you
       certainly should not have expressed a view about it,
       knowing that this will be a key issue at a future trial.
   MR JUSTICE FRASER:  Thank you very much.  What about the
       extract of the document itself which was relied on both
       in evidence and in opening?
   LORD GRABINER:  I mean, I have no particular view about
       that.  What I am much more concerned about is what you
       have said in the judgment and whether, through the eyes
       of a fair-minded observer, it can be said that it is
       possible for your Lordship to keep an open mind.
   MR JUSTICE FRASER:  Understood.  Thank you very much.
   LORD GRABINER:  Could I go next to helpline.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  So paragraph 248, and this deals with
       Mr Abdulla to whom we had a reference to a little
       earlier:
           "Turning to Mr Abdulla's operation of the branch,
       I have already identified his account of how even
       disputed transaction corrections had to be dealt with at
       some stage prior to the next branch trading period by
       clicking the 'accept now' button.  He would contact
       helpline six or seven times a month and was shocked at
       the inadequate support."
           Just below there, or next:
           "He would often experience apparent shortfalls on
       the days when he would perform balances, but could
       rarely get through to the helplines on these occasions.
       He thought the advisers were ill-informed and would
       often give the impression of reading off a script."
           In 249:
           "He could not resolve these through the helpline."
           So here your Lordship was accepting Mr Abdulla's
       evidence both as to his subjective impression of the
       service that he received and as to the points of fact,
       such as whether he could get through to the helpline.
       And I am sorry that I am beginning to sound like
       a broken record, but these were not matters for the
       first trial and, specifically, they are matters for
       subsequent trials.
           Now, these, 303:
           "These shortfalls continued.  On 15 October 2014,
       there were unexplained shortfalls of over £3,500.  When
       she [and I think this is Mrs Stockdale] phoned the
       helpline, she was told this was only £3,000 and it is
       a drop in the ocean compared to some people's problems.
       This contradicted an earlier statement from the helpline
       when she had been told that she was the only SPM
       experiencing these problems, which just made her feel
       inadequate.  I will track this particular shortfall
       through in terms of her evidence."
           And your Lordship does that, and at the end of that
       paragraph or further on in it, your Lordship says:
           "I accept this evidence by Mrs Stockdale.  There can
       be no doubt that the shortfall was clearly in dispute,
       even on the Post Office's understanding of how disputes
       were to be raised."
   MR JUSTICE FRASER:  I am sorry, I have lost where you are.
   LORD GRABINER:  I am sorry, it is the end of paragraph 303.
       Yes.
   MR JUSTICE FRASER:  Yes, thank you.
   LORD GRABINER:  "I accept that evidence."
   MR JUSTICE FRASER:  Yes, thank you.
   LORD GRABINER:  So in my submission, this is a good example
       of your Lordship undertaking a detailed analysis of the
       evidence, in this case, that of Mrs Stockdale, and her
       evidence is expressly accepted by your Lordship as
       accurate.  This was not a matter for determination in
       the first trial and when this issue does arise at
       a future trial, a fair-minded observer of this story
       would say that your Lordship had reached a concluded
       view as to the accuracy and reliability of
       Mrs Stockdale's testimony.
           Your Lordship's concluded view about her evidence
       was then reinforced in your summary of her evidence and
       for that purpose, if we go forward to paragraph 328.
       Your Lordship says there:
           "I found Mrs Stockdale to be a careful and accurate
       witness and I consider she was telling me the truth."
           Then you say at the end of that paragraph:
           "I'm making no findings in respect of breach,
       causation or loss."
           As I say, I will come back to that mantra later on
       in these submissions.
           And at 357, in relation to Mrs Dar, your Lordship
       says:
           "Her experience with the helpline was not a positive
       one.  She contacted them two to three times a month,
       often in relation to apparent shortfalls or balances.
       Most of the time, she was told to recount and if there
       was still a shortfall, she had to make this good, which
       means pay it herself.  Once she was told how to get
       around the problem by altering the stock figures to
       balance, which shocked her, and she considered there was
       some kind of fault within the system."
           So this, in my submission, is the same point.
       Your Lordship here accepted Mrs Dar's evidence on what
       happened when she called the helpline, although this is
       a matter yet to be addressed in a different trial.
           At 556, still on the helpline, 556, my Lord, yes,
       your Lordship says:
           "The helpline does not seem to have operated in that
       way and on the evidence before me for the issues in this
       trial, the matters in dispute reported to the helpline
       were not treated differently even when they were
       reported.  The lead claimants' evidence made it clear
       that just getting through to the helpline was an
       achievement in itself.  When this was finally
       accomplished, the experience would be variable at best
       and does not seem to have come close to resolving any of
       the disputes."
           Then your Lordship can read the intervening
       passages.  Then at the end, you say that was simply not
       made out on the evidence before you, that is the
       position of Post Office.
           This paragraph of the judgment reveals your Lordship
       broadly accepting the claimants' case on the quality of
       the helpline and how the disputes process functioned,
       but again, these are prime issues for a resolution at
       a subsequent breach trial.
           In that passage, your Lordship is making no
       distinction between the contractual obligation involved
       in notifying a dispute via the helpline.  So pausing
       there, that would be entirely understandable in the
       context of the contract issues or those issues, working
       out or deciding what the contractual obligation was,
       rather than what is, in fact, happening in that
       paragraph, namely whether or not the Post Office
       fulfilled its obligations, ie was it a breach of
       contract, which is an entirely distinct, self-contained
       issue for a later trial.
           At 558, at the beginning of the paragraph:
           "It is therefore the case that, on the evidence
       before me, the helpline did not operate for the lead
       claimants in the manner that the Post Office contended
       for."
           Then you say at the end of that paragraph:
           "Detailed findings of fact as to this must however
       wait for a later trial."
           So this was a conclusory statement about what
       happened when claimants called the helpline, it was not
       relevant, in my submission, to any Common Issues.  It
       will be relevant at a future trial.  And your Lordship's
       use of the word "detailed" at the end of that paragraph
       rather reinforces the concern.  The implication from
       that word is a recognition that you were making findings
       of fact, albeit in outline, and that when you get to the
       later trial, you are going to elaborate on those
       findings in the light of the evidence in that case.  But
       the idea that you are going to be in a position fairly
       to depart from those conclusions, in my submission, is
       the gravamen of the charge.
   MR JUSTICE FRASER:  Is it not relevant though to the status
       of a branch trading statement?
   LORD GRABINER:  With great respect, it isn't.  The status,
       the particular status of a branch trading statement,
       would depend upon the facts surrounding that branch
       statement.  So, for example, suppose the complaint was,
       "Well, I have got the branch statement, I was forced to
       press the accept button, and I did so, and then when
       I tried to register my complaint through the helpline,
       I was unable to do so for whatever reason".
           Now, the correctness or otherwise of that debate is
       a breach issue.  If and to the extent that there was
       a failure of the helpline, operating in conjunction with
       the statement, to enable that complaint to be
       registered, that is a breach of contract complaint
       understandably.  But to investigate those matters at the
       contract creation stage, in my submission, was a wrong
       step.
   MR JUSTICE FRASER:  The Common Issues didn't only involve
       contract creation, because they also involved issues of
       agency.
   LORD GRABINER:  Yes.
   MR JUSTICE FRASER:  But it was factually in issue for about
       three weeks of the Common Issues trial as to what
       options were available to a Subpostmaster in respect of
       how they would perform their branch accounts.
           So, for example, if we just look back at
       paragraph 558, which you have been drawing to my
       attention, the meaning of the phrase in inverted commas
       in the ante-penultimate line, "settled centrally", took
       some time to unravel.  By the time the trial ended, the
       factual position was almost essentially agreed, but it
       took some weeks to get there.
           And so far as that point is concerned, is your
       submission that it would have been necessary or
       acceptable to decide what "settled centrally" meant, but
       I shouldn't have then gone on to consider the mechanism
       of dealing with the helpline, is that right?
   LORD GRABINER:  Absolutely.
   MR JUSTICE FRASER:  All right.
   LORD GRABINER:  Because by definition, by definition, by
       engaging in that investigation and indeed reaching some
       conclusions in relation to the functioning and operation
       of the helpline, what is happening is that there is
       a trespassing into later matters which are not relevant
       to the immediate question.
           For example, the question of the meaning of "settled
       centrally" would have been a classic example of
       something that needed to be determined in the
       Common Issues trial.  Construction questions were open
       for debate, absolutely.
   MR JUSTICE FRASER:  Yes, but what then do you say about the
       Post Office evidence that had been contained in the
       Post Office's witness statements about the operation of
       the helpline, because there was evidence on it from
       both parties?
   LORD GRABINER:  Well, all I can say about that is that the
       key point in this debate is the relationship between the
       functioning of the helpline and the account statement --
   MR JUSTICE FRASER:  Right.
   LORD GRABINER:  -- and in what circumstances the account
       statement could be relied upon or would or would not be
       binding?  And that is classically a contract question,
       if I can put it in a very concertinaed way.  But to
       investigate events which are really breach events and
       then to make findings about them after the event was, in
       my submission, a false step.
   MR JUSTICE FRASER:  I understand, thank you very much.
   LORD GRABINER:  And it is trite law, of course, but the fact
       is that what was not legitimate was to participate in
       a post-contractual factual investigation, is what it
       comes to.  The factual investigation of that kind is
       entirely distinct from matters which should have been
       investigated at the Common Issues trial.  The
       contractual position as to the trading statement and the
       helpline falls to be analysed at the time of
       contracting.  Classic law.
           For this purpose, the factual matrix must be
       examined at that point in time, but what happened here
       was that there is then an investigation of, by
       definition, post-contractual events and conclusions in
       relation to matters such as alleged breaches of
       contract, for example as to the effectiveness of the
       helpline after the event to improve or clarify the
       factual matrix, which is absolutely impermissible.
           Now, the next topic of the seven is how good or bad
       Post Office's investigations of shortfalls were, and
       whether Post Office disclosed what it knew about
       shortfalls to Subpostmasters.
   MR JUSTICE FRASER:  Can I just check, before you move on to
       that.  The third of your seven categories, I think we
       went to 248, 303, 357, 556 and 558, is that right?
   LORD GRABINER:  That is exactly right.
   MR JUSTICE FRASER:  Now we are going on to the fourth of the
       seven.
   LORD GRABINER:  Yes.  I haven't gone back to count, but
       I think it is the fourth.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  The first paragraph that I want to refer to
       is 115.
   MR JUSTICE FRASER:  115, yes.
   LORD GRABINER:  Your Lordship says:
           "Putting entirely to one side the fact that it has
       taken Post Office 15 months to finalise how it was to
       resolve this matter and Mr Bates was given only 16 days
       to reply."
           And your Lordship says:
           "Which attitude appears to me to be symptomatic of
       how Post Office regularly treated at least some of its
       SPMs."
           That is a very strong statement, my Lord, and that
       is exactly the kind of statement -- and I appreciate
       that was and is your Lordship's view, but it is not
       necessary for the purposes of the judgment that you were
       dealing with, or that you were giving.  And also, it is
       obviously going to be relied upon by the other side.  If
       I were on the other side, I would be banging the drum on
       a sentence like that.  I would be accusing Post Office
       of being a disgraceful bunch and, "That is already
       your Lordship's view: see your judgment in the
       Common Issues case", that is obvious.
   MR JUSTICE FRASER:  When you say, "That is already
       your Lordship's view", do you mean that you are
       summarising what Mr Green would be saying, relying on?
       You are not telling me -- I don't assume you are
       expressing that as that is a view that I, the judge,
       currently hold.
   LORD GRABINER:  What I am submitting is that having, so to
       speak, committed yourself in print on that point, a
       fair-minded -- I don't care what Mr Green will say or
       won't say or indeed what I think or say.  It is all
       irrelevant, and in a sense, what your Lordship thinks or
       says is irrelevant for this purpose because it is an
       objective test.  The fair-minded observer will look at
       this along with all the other material that we are going
       through at the moment and will have to come to
       a judgment as to whether your Lordship can fairly
       approach the future trials given the conclusive
       expression of opinion that you have given there.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  It is just another example.  And then in
       subparagraph 1 of 115, you say in the first line:
           "It suggests that Mr Bates' experience was not an
       isolated one."
           Then we can leave over 1 and go straight to 2,
       sub-2, the second sentence:
           "I'm satisfied that if he had simply paid the amount
       to the Post Office as demanded in the Post Office letter
       of 16 July 2001, which sought as matter of some urgency
       that he 'advise me of your proposals to now make good
       the loss', in other words, how he would pay the
       Post Office that money which was at that stage demanded,
       this would not have occurred.
           "3.  No explanation was provided to Mr Bates as to
       how the shortfall had occurred.
           "5.  The consistent policy, if indeed there was one,
       seems to have been that the Post Office would simply
       claim all such sums from the SPMs in question."
           These are all findings to the effect that
       Post Office's investigation was, in your Lordship's
       view, inadequate and that Post Office demanded payment
       without a proper basis.  Now, in my respectful
       submission, those findings had no place in the
       Common Issues trial.  They trespass into matters which
       we all know fall to be determined in a later case or
       cases.
           165 deals with the evidence of Mrs Stubbs, and if we
       go 15 or 20 lines down, maybe fewer than 20,
       your Lordship says:
           "It might be thought that if there were any proper
       investigation which actually reported on this, it could
       and should have been put to Mrs Stubbs, but if what was
       put to Mrs Stubbs in this trial is said by the
       Post Office to amount to such an investigation, then
       it is telling.  The investigation appears, on the
       material deployed in this Common Issues trial, to have
       consisted of nothing more than Fujitsu asserting that
       there was nothing wrong with the kit.  That is not, in
       my judgment, an investigation under any normal
       understanding or meaning of that word in society
       generally."
           That is really the same point that we just saw for
       Mr Bates.  Your Lordship is saying that Post Office's
       investigation was inadequate and that Post Office
       demanded payment without a proper basis.  Again, in my
       submission, those findings had no place in the
       Common Issues trial.
           In 208, and your Lordship can glance at the
       paragraph for context, and there was a sort of help
       issue that is identified there, this is in relation to
       Mr Sabir, but your Lordship concludes in the last
       sentence of 208:
           "That help simply never came."
   MR JUSTICE FRASER:  I am sorry.
   LORD GRABINER:  208.
   MR JUSTICE FRASER:  I am in 208.
   LORD GRABINER:  The last sentence.  {B7/29/74}
   MR JUSTICE FRASER:  "This was counted against him at the
       time and used as a --"
   LORD GRABINER:  "That help simply never came."
   MR JUSTICE FRASER:  That is in the middle.
   LORD GRABINER:  I am sorry.  I don't have the whole
       paragraph in front of me.
   MR JUSTICE FRASER:  That is in the middle.
   LORD GRABINER:  Very good.  That is also a finding as to how
       co-operative or unco-operative Post Office was in trying
       to establish the cause of the shortfall.  In my
       submission, it is a breach question.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  217, sub-2:
           "Mr Sabir had no separate record and no access on
       Horizon to the number of scratchcards he should have
       had."
           And then your Lordship says:
           "He requested this information from the Post Office,
       who did have it.  It was not provided.  He used the
       helpline to notify Post Office of a problem.  This is
       the way that the Post Office maintained disputes should
       be notified."
           Then in 223:
           "In my judgment, the attack on Mr Sabir's credit,
       which I have identified above, fundamentally ignores the
       reality.  The fact that he had contacted the helpline
       and sought assistance and the fact that the vital piece
       of information he needed, the number of scratchcards the
       system was showing that he should have, was so readily
       accessible to the Post Office auditors, but never
       provided to him."
           So again, those are findings that Post Office did
       not supply Mr Sabir with information, which he could not
       obtain himself through Horizon and which could have
       enabled him to establish the extent of the shortfall.
       Again, those are findings on Horizon and on breach.
   MR JUSTICE FRASER:  I did have to make a finding on his
       credit, though, did I not?
   LORD GRABINER:  That may be.  You mean because of challenge
       in relation to the contract formation?
   MR JUSTICE FRASER:  There were various challenges to
       Mr Sabir's credit, but not least -- I think it is
       a point that has been --
   LORD GRABINER:  I am told by Mr Cavender that we never
       relied on any of this material.
   MR JUSTICE FRASER:  Mr Cavender -- well, the transcript
       shows the way that Mr Sabir was cross-examined, but
       let's not waste time on that at the moment.  So that is
       223.
   LORD GRABINER:  557, still under the same heading, 557:
           "Mrs Stockdale telephoned the helpline.  She then
       assumed the debt recovery letter she received meant an
       investigation had been done and resolved against her.
       That assumption was not correct.  Mrs Stubbs had been
       pressing for many years to find out the outcome of
       whatever investigation was in fact performed in her
       case.  In both cases, the helpline had been notified by
       each of these lead claimants.  In neither case
       [your Lordship says] could the Post Office produce and
       put to each of these lead claimants or show the court
       the end product of any such investigation."
           So here your Lordship found that Post Office had not
       conducted an investigation into Mrs Stockdale's
       shortfalls and your Lordship also criticised Post Office
       for not adducing what would have been inadmissible
       breach of contract evidence.  So if they had produced
       this material at that trial, it would actually not have
       been relevant to the issues in that trial, but obviously
       it would have been relevant material for the purposes of
       a breach trial or a trial about Horizon and its
       effectiveness or otherwise.
   MR JUSTICE FRASER:  Mr Cavender did put to Mrs Stubbs at
       least that there had been an investigation on the basis
       that -- I mean, it is the same point perhaps as the one
       that I explored with you earlier about Mr Sabir, but if
       a positive point is put to a witness, for example, that
       an investigation has happened, do you say I should weigh
       that up in respect of the credit of the witness so far
       as contract formation is concerned but then stop there,
       effectively?
   LORD GRABINER:  Yes, because it would have been ex hypothesi
       cross-examination on irrelevant material.  I mean,
       I think what is revealed by just our exchanges here this
       morning, my Lord, is the absolute difficulty of keeping
       a clear bright line between the matters which were the
       subject of that trial, bearing in mind the fact that
       under the case management arrangement, there were going
       to be future trials where these matters would be
       investigated.  It is a very -- it is a difficult task,
       I absolutely respect that and I accept that, but we do
       respectfully submit that you went over the line.
   MR JUSTICE FRASER:  I understand.
   LORD GRABINER:  Mr Cavender draws to my attention the
       closing transcript on {Day 14/46}.
   MR JUSTICE FRASER:  Do you want me to pull that up on the
       screen?
   LORD GRABINER:  I can just read it into the transcript.
       Your Lordship's question was:
           "So far as the claimants' evidence is concerned,
       therefore, you say treat it all with caution for all the
       reasons that you have gone through, but you are inviting
       me not to make any findings on their credibility.
           "MR CAVENDER:  Indeed.
           "MR JUSTICE FRASER:  Any adverse findings on their
       credibility, is that right?
           "MR CAVENDER:  Yes, because to do so you would have
       to make findings as to the accounting system, to the
       TCs, what happened in fact, and you haven't had full
       evidence on that by any means."
           Then on the following page of the transcript,
       {Day 14/51}, line 12, Mr Green:
           "I'm sorry to interrupt, but I have let this run
       since {Day14/38:14}, what my learned friend is saying.
       He said someone in his position might say Mr Abdulla
       lied.  Well, that is exactly what he does say at
       paragraph 592 of his closing submissions.  So I don't
       understand --"
           Then your Lordship interrupted and said:
           "MR JUSTICE FRASER:  All right.
           "MR GREEN:  -- where he is on it.
           "MR CAVENDER:  But I don't ask for findings on it.
           "MR JUSTICE FRASER:  Mr Green, as a rule, I am not
       saying you can't make these points, but you might want
       to store them up.
           "MR GREEN:  I am grateful."
   MR JUSTICE FRASER:  The position on finding so far as credit
       were concerned, I gave the Post Office an opportunity to
       consider their position on that after the oral
       submissions were over, because I had difficulty
       following it.  And there was a written explanation
       provided by the Post Office which explained to me what
       the Post Office said I should do in terms of findings as
       to credit, because as the exchange that you have just
       read out demonstrates, on the one hand, the closing
       submissions accuse some of the lead claimants of lying,
       but orally, Mr Cavender said, "Don't make findings on
       credit".  I am sure the dichotomy in those two positions
       needed to be resolved.
           So I~think the correct place to start or finish in
       terms of findings as to credit is probably what the
       Post Office said in their written submissions after the
       hearing.
   LORD GRABINER:  I --
   MR JUSTICE FRASER:  I understand your submission.
   LORD GRABINER:  What I would respectfully submit is that
       bearing in mind the fact that there was yet to be
       a breach trial --
   MR JUSTICE FRASER:  I understand.
   LORD GRABINER:  -- enormous care was required --
   MR JUSTICE FRASER:  I understand.
   LORD GRABINER:  -- in order to ensure that the concerns that
       we are now expressing would not arise.
   MR JUSTICE FRASER:  I entirely understand.
   LORD GRABINER:  Now, my Lord, I don't know if that is a good
       moment to break?  I could, because I am just going to
       a new topic.
   MR JUSTICE FRASER:  If you have finished number four of your
       seven ...
   LORD GRABINER:  Would you bear with me a moment.
   MR JUSTICE FRASER:  The last paragraph before I distracted
       you I think was 557.
   LORD GRABINER:  You did not distract me.  Yes, that is
       convenient.  That would be a convenient moment.  I have
       got quite a lot still to get through, but I will go as
       fast as I can.
   MR JUSTICE FRASER:  Understood.  Shall we say five minutes?
   LORD GRABINER:  My Lord, yes, I am grateful.
   MR JUSTICE FRASER:  We will have a five minute break.  I am
       going to see if I can turn the temperature down a bit.
       It seems to be quite hot.  I don't know if I am alone.
   LORD GRABINER:  You are quite right, it is.
   MR JUSTICE FRASER:  I will see if I can do something about
       that.  Five minutes.
   (11.50 am)
                          (Short break)
   (11.55 am)
   LORD GRABINER:  My Lord, there just one point from this
       morning.  Your Lordship wanted to know which Horizon
       Issues.  This was in the context of my referring to
       paragraph 569 --
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  -- and those points 54 to 57.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  And the Horizon Issues referred to were
       issues 7 to 9 --
   MR JUSTICE FRASER:  Thank you very much.
   LORD GRABINER:  -- which are in B7/14/4.
   MR JUSTICE FRASER:  Thank you very much.
   LORD GRABINER:  Turning then to the next topic, and I am
       going to try to speed up if I may, because there is
       going to be a time issue.
           So the next topic is whether Post Office sent
       unjustified demands for payment and/or threats of legal
       action to SPMs.  Paragraph 222:
           "There can be no excuse, in my judgment, for an
       entity such as Post Office to misstate in such clearly
       express terms in letters that threaten legal action and
       the extent of the contractual obligation upon an SPM for
       losses.  The only reason for doing so in my judgment
       must have been to lead recipients to believe that they
       had absolutely no option but to pay the sums demanded.
       It is oppressive behaviour."
           In 327, towards the end of it:
           "The documents available in this litigation show
       that this simply was not true and she had expressly done
       both of those things."
           This is in relation to Mrs Stockdale.  At 462, after
       a few lines:
           "This conclusion means that the Post Office fraud
       prevention and debt recovery procedures will be used
       against SPMs in this position unless an SPM can show
       that the shortfall or discrepancy was not their fault."
           Then your Lordship says:
           "This judgment does not contain findings on breach,
       loss or causation."
           So in the same vein, your Lordship made a number of
       findings in your section of the factual matrix at
       paragraph 569, which go to show how transaction
       corrections were treated.  So for example, factual
       matrix point 35:
           "However, even amounts that were disputed in this
       way were treated by Post Office as debts owed by the
       SPM."
           And factual matrix point 40:
           "The defendant sought recovery from the claimants
       for apparent shortfalls, and I would add also on the
       evidence that the Post Office did this regardless of
       whether disputes had been reported to the helpline or
       not."
           And then factual matrix point 42:
           "The Post Office required claimants to accept
       changes to records of branch transactions unless the
       claimant was effectively able to prove that the
       transaction correction was not correct."
           And factual matrix point 43:
           "The Post Office did sometimes issue transaction
       corrections after the end of the branch trading period
       in which the transaction had taken place."
           So, in my submission, none of this was relevant
       matrix for the Common Issues trial.
           Then at 7231:
           "Even though Post Office's own case on the relevant
       provision in the SPMC [that is one of the contracts]
       dealing with liability for losses requires negligence or
       fault on the part of an SPMC, this was routinely and
       comprehensively ignored by Post Office, who sent letters
       of demand for disputed sums in express terms as though
       SPM had strict liability for losses.  These letters
       entirely misstate the legal basis of SPMs' liability
       even where they had been appointed under the SPMC."
           723, subparagraph 4:
           "The approach of the Post Office is to brook no
       dissent.  It will adopt whatever measures are necessary
       to achieve this."
           And then after the reference to section 15,
       clause 19 of the SPMC, your Lordship says:
           "Other parts of section 15 deals with the
       requirement for caution, but I find it somewhat unusual
       and potentially oppressive that the Post Office should
       seek to use the Official Secrets Acts in this way.
       I don't see how in a routine case these Acts could
       possibly apply in the way suggested by a Post Office in
       this contract."
           So again, in my submission, all of this was
       irrelevant to the Common Issues trial.
           The next topic is whether Post Office acted properly
       in suspending and/or terminating SPMs' contract.  The
       relevant paragraph in the judgment is paragraph 20
       {B7/29/8}.  Perhaps your Lordship would just look at
       this to remind your Lordship of it for context.  This is
       all about termination, sometimes abrupt termination, and
       you are looking at Mr Bates' position and Mrs Stubbs'
       position.
           Then, in my submission, this again shows
       your Lordship's hand in a concluded way.  The reasonable
       onlooker would think that your Lordship's mind is at
       least or may be closed as to the proprietary of
       Post Office's actions in effecting these suspension and
       terminations.  Again, this is wholly irrelevant to the
       Common Issues.
           Paragraph 263, {B7/29/90} just for context, this is
       in relation to the letter sent to Mr Abdulla dismissing
       his internal appeal.  Your Lordship will recall all of
       this, and then 263 sets out the letter.  264,
       your Lordship says:
           "It's not clear if 'my investigation' included any
       further information from or investigation of the
       situation regarding Camelot either by Mrs Ridge or
       Mr Mylchreest.  Given the timescale, this appears
       unlikely.  Certainly no documents were produced in this
       trial that suggested it was."
           And so on.  If your Lordship would look at the rest
       of that paragraph and 402 for context.  Then after the
       reference to the statement and the appeals process in
       the rehearing, there is a reference to Mrs Ridge, and
       then about halfway through that paragraph:
           "It is more than an academic nicety.  Terminating
       without notice is a severe step.  A right of appeal was
       supposed to be present under the SPMC.  The Post
       Office's own witnesses do not know what that appeal
       consisted of and what the test was.  This is deeply
       unsatisfactory."
           403:
           "I do not know why risk to the Post Office
       reputation should be a relevant factor in such an
       appeal, which is what I find Mr Breeden's evidence to
       consist of, or why SPM's entitlement to be heard on
       appeal would differ from case to case."
           Further down:
           "Unjustified suspension ought to be a factor in
       favour of an appeal succeeding on any sensible view."
           At the end of that paragraph:
           "The reputation of the Post Office would best be
       served by appeals that were justified, succeeding, and
       those that were not, failing, should not have formed any
       part of the criteria."
           479 {B7/29/147} a long way into it:
           "Given the odd combination of various items all for
       £1,092 - which she accepted 'was a bit odd' - this
       information would evidently have been very useful."
           Then a couple of lines on:
           "I found he was giving her an account concerning
       £1,092 which she would have been more willing to
       consider was truthful had she had the Excel spreadsheet
       at the interview."
           And so on.  Your Lordship can read to the end of
       that paragraph:
           480 {B7/29/148}:
           "The hearing process in respect of Mr Abdulla's
       suspension and eventual termination therefore proceeded
       with incomplete information being provided to the person
       tasked with conducting the hearing, making this
       important decision, and still less information being
       given to Mr Abdulla by the Post Office."
           Towards the end of that paragraph:
           "I make no findings on any matters connected with
       breach, causation or loss."
           All of that consists of criticisms of Post Office's
       process for determining whether or not to suspend or
       terminate a postmaster.  They go directly to allegations
       of breach of contract and have nothing whatever to do
       with the contractual matters or the Common Issues --
       I am always concertinaing into contract matters, but
       your Lordship knows what I mean by that -- which were
       the subject of that trial.
           In 514 {B7/29/155}:
           "Mr Carpenter was also responsible for the decision
       to suspend Mrs Stockdale.  Because this happened after
       the litigation had commenced, I was most interested in
       the exact sequence."
           Then your Lordship goes through a good deal, or you
       recite a good deal, of extract from the transcript, and
       then after going through summarising and setting out the
       transcript at 515, your Lordship says:
           "The following pertinent points arise from this
       evidence, which I found of considerable interest."
           And then you set out your conclusions from that
       evidence, and at paragraph 5 underneath as part of 515:
           "Mr Carpenter wasn't 100% sure that he did not know
       Mrs Stockdale was a claimant when he recommended her
       suspension, even though on his evidence he found out on
       the day.  That does not seem to have had any effect on
       his recommendation to suspend at all."
           In 516, at the end of the paragraph:
           "Also expressly stated to her factually untrue
       statements, namely she had not contacted the NBSC or
       asked Post Office for assistance.  I find that she had."
           517:
           "It must be understood with crystal clarity."
           I think your Lordship will recall this paragraph.
       And then a few lines down:
           "However, even putting it at its best for the
       Post Office, such conduct towards Mrs Stockdale during
       this early stage of the litigation could potentially be
       construed as threatening, oppressive and potentially
       discouraging to other potential claimants to become
       involved in the litigation, whether by accident or
       design.  I can think of no reason why such an approach
       was taken unilaterally by Post Office in such a way
       without the Post Office's solicitors giving advance
       notice to her solicitors so a less confrontational and
       aggressive path was adopted.  However, even once it was
       done and she that was suspended Post Office continued to
       act in a highly regrettable fashion."
           519, a few lines down:
           "Post Office put itself in the position of giving
       itself the appearance that this behaviour towards her
       was directly influenced by her having issued
       proceedings."
           So that was a response to the fact that she had
       commenced proceedings against her, appears to be
       your Lordship's view.
           Now, as to those passages your Lordship said that
       these points were of considerable interest, but, in my
       submission, they were obviously not relevant to the
       Common Issues, not least because they concern events
       post-dating the commencement of the litigation, which
       your Lordship very fairly points out.  A fair reading of
       the analysis is that your Lordship was criticising
       Post Office for its suspension decision-making, which is
       a serious criticism of systems adopted by the
       Post Office in its dealings with Subpostmasters.
           This also contains findings as to the threats and
       the hostile statements that the Post Office allegedly
       made.  These points bear on the breach issues which are
       to be the subject of future trials.
           Then in 723, sub-2, there is a discussion about
       legal representation in the Post Office interview
       process in connection with a suspension mechanism, and
       then your Lordship says:
           "Regardless of whether this is justified or not
       [ie the fact that you can't have representation], the
       specific grounds and proper particulars of why they face
       potential termination are not even clearly identified in
       advance to the SPM in question.  Additionally,
       information directly relevant to the grounds or at least
       what the Post Office is concerned about, in the absence
       of properly identified grounds, is not provided to the
       SPM either, or at least not in the case of lead
       claimants who face such procedures.
           "Mr Abdulla tried at his interview to explain the
       situation regarding TCs and of the lottery.  He was
       disbelieved.  The documents available in the trial show
       that whatever else he had done, he was telling the truth
       about the existence of these TCs.  Neither he nor the
       interviewer had this information available to him at the
       time."
           Again, these are criticisms of Post Office's
       termination procedure.  They are irrelevant, in my
       submission, to the Common Issues.  They might be very
       relevant indeed in future trials.
           The next topic is training, paragraph 104, and there
       is just one emphasised passage in that paragraph.  This
       is in relation to Mr Bates:
           "There was no explanation for how to identify the
       cause of any shortfalls or discrepancies or how to
       dispute them."
           105 is part of that, but there is no specific piece
       that I want to make reference to.  But again, in my
       submission, this is all irrelevant post-contractual
       evidence.
           Your Lordship made similar findings or comments in
       relation to Mrs Stubbs in paragraph 142, where
       your Lordship says in the middle of the paragraph:
           "The training did include balancing, but did not
       include shortfalls, how to get to the root cause of them
       or how they should be disputed."
           Then looking at Mr Sabir, this is paragraph 193:
           "Thereafter, Mr Sabir accepted the appointment and
       received training."
           Then a long way into that paragraph:
           "Mr Sabir's evidence on this, which I accept,
       matches the other evidence from other lead claimants
       about in branch training.  It is characterised by the
       trainers observing rather than training and also by
       early departures from the branch itself by the trainers.
       I do, however, make these comments without making
       findings on anything to do with breach, causation or
       loss."
           And I will come back to that mantra, if I may.
   MR JUSTICE FRASER:  Is that at the end of 193?  Is that the
       part that you have just read?
   LORD GRABINER:  Yes, exactly right.  Yes, precisely.
           And:
           "Mrs Stockdale [at 297] was accepted as an SPM and
       had some training.  She attended the classroom training
       with her son.  She did not have all the training she was
       told she would receive."
           And then there is some explanation of that factual
       context.
           So in that paragraph, Mrs Stockdale's evidence is
       summarised about her allegations of deficiencies in the
       training process, and the third sentence is at least
       a partial acceptance of her evidence on a topic that was
       not before the court in that trial.
           Then for Mr Abdulla, paragraph 246, the second
       sentence or third sentence:
           "This did not include balancing in any detail, if at
       all."
           This is in relation to the training he was supposed
       to have got.
           Then in 247, I think this is in relation to
       Mr Sabir, the last couple of sentences:
           "This included conducting a balance.  He was told
       that he had to make good any losses and he was not told
       how to investigate or resolve discrepancies or apparent
       shortfalls.  He was simply told to contact the
       helpline."
           And finally Mrs Dar:
           "Mrs Dar considered [on the fourth or fifth line]
       the training was inadequate."
   MR JUSTICE FRASER:  Which paragraph?
   LORD GRABINER:  Paragraph 346.  So that is in about the sort
       of third or fourth line:
           "Mrs Dar considered the training inadequate."
           And at the end of the paragraph:
           "Mrs Guthrie spent some of her time trying to fix
       problems with Horizon rather than doing the induction
       training that Mrs Dar was expecting."
           So here your Lordship was accepting Mrs Dar's
       evidence at face value both as to what she believed
       about the quality of the training and as to what
       happened, notwithstanding the fact that the training
       issue is for a later trial.
           In paragraph 352, I think we are still with
       Mrs Guthrie and Mrs Dar, and at the end of that
       paragraph, that is 352:
           "Mrs Guthrie did not attend on Mrs Dar's first
       balance day as she was supposed to.  Mrs Guthrie also
       said she would come back to give further training and
       support.  In fact she did not, at least not until some
       months later on 15 July 2015, when she came back to
       carry out an audit."
           Paragraph 569, factual matrix point 70:
           "On the evidence of six lead claimants, even when
       further training was specifically questioned, it was not
       provided."
           437:
           "Nowhere in the training or the interview or
       anywhere else is there any recognition of how to deal
       with a shortage, discrepancy of disputed TC of any order
       of magnitude, still less those of the six lead
       claimants."
           Then this paragraph expresses, in my submission,
       a concluded view on the content and quality of the
       training.
           955:
           "One feature which seemed to be wholly absent from
       the training courses run by the Post Office for the lead
       claimants was any sort of assessment or test of
       competence at the end of the training."
           Then further down the paragraph:
           "This situation is in no one's interest.  In my
       judgment, I would go further and say it is contrary to
       business logic.  Although there was some in-branch
       training, the approach to that did not appear to be
       uniform either.  It can be seen [a couple of lines down]
       that inadequate training is not likely to be readily
       discernible to the Post Office."
   MR JUSTICE FRASER:  That rather skips over the introductory
       sentence to 954, though, doesn't it:
           "I have certain non-binding observations on the
       evidence given before me by both sides in terms of
       training."
   LORD GRABINER:  Your Lordship's point is the non-binding
       point.
   MR JUSTICE FRASER:  And that it was evidence from both
       sides.
   LORD GRABINER:  Okay.
   MR JUSTICE FRASER:  But I think, if I understand your
       submissions correctly, I should have resisted the
       temptation to do that.
   LORD GRABINER:  Precisely.
   MR JUSTICE FRASER:  Right.  Thank you very much.
   LORD GRABINER:  So the paragraphs that I have been drawing
       to your Lordship's attention in this context reveal, in
       my submission, concluded views and observations on
       matters arising for determination in subsequent trials.
       We have done a separate exercise.  Actually, I have done
       this separate exercise, but I hope it is nonetheless
       accurate.  So these paragraphs appear in the course of
       very extensive recitation by your Lordship and analysis
       of the evidence of each of the lead claimants.
           So it is interesting.  For the record, Mr Bates,
       your Lordship deals with his evidence between
       paragraphs 69 and 124, 55 paragraphs.  Mrs Stubbs,
       paragraphs 125 to 172, 47 paragraphs.  Mr Sabir,
       paragraphs 173 to 223, 50 paragraphs, Mr Abdulla,
       paragraphs 224 to 274, 50 paragraphs.  Mrs Stockdale,
       paragraphs 275 to 328, 53 paragraphs.  Mrs Dar,
       paragraphs 329 to 364, 35 paragraphs.
           The point I want to make is that the individual
       paragraphs I have been drawing to your Lordship's
       attention were not observations by the way.  In each
       case, they came out of a very, very detailed scrutiny of
       the witnesses' testimony.  And it is obvious that in
       a future case when these points are litigated, breach,
       Horizon and so on, there is at least a real possibility
       that your Lordship will simply not be able to revisit
       your own conclusions with an open mind.
           The other side will say you could not have done
       a more thorough analysis of the evidence that you
       received from each of these witnesses, and when you were
       expressing concluded views about them, they were what
       they are; concluded views which are now immovable
       regardless of the evidence which might subsequently be
       given in one or other of those later trials.
           So, in my submission, the fair-minded observer of
       this story would perceive that as a real and concerning
       risk.
           If I can turn away now from the individual seven
       items that I have been addressing.  So in addition to
       all the points I have been making, there is a separate
       category of examples of what we call negative findings
       or comments as to Post Office's integrity and behaviour.
       And the passages to which I now refer, taken together
       with the matters that I have already dealt with,
       reinforce our concern that your Lordship's mind is
       closed against Post Office.
           That concern, we submit, would be shared by
       a reasonable observer possessed of the facts.
   MR JUSTICE FRASER:  I think you mean gives the appearance of
       being closed.
   LORD GRABINER:  Yes.
   MR JUSTICE FRASER:  Because if it were your case that it
       were closed, it would be an application based on actual,
       not apparent, bias.
   LORD GRABINER:  I apologise for having misspoken.
   MR JUSTICE FRASER:  It is a question of my being clear.
   LORD GRABINER:  No, you should be absolutely clear, there is
       no such allegation being made.
           So under the particular headings that we have
       devised, first of all, Post Office's alleged
       mistreatment of Subpostmasters, or indeed mistresses.
       Paragraph 117:
           "The full subsequent trial of Mr Bates' claim will
       show what if any consideration was given at the
       Post Office internally not only to this shortfall but
       others, if there were others, in the period December
       2000 to March 2002.  If the Post Office did in reality
       do what Mr Bates suggested they did, namely bury their
       heads in the hand, press on regardless and press
       numerous SPMs for shortfalls and discrepancies caused by
       the Horizon system, that would be behaviour of an
       extraordinary kind, and given the criminal implications
       for some SPMs may be extraordinarily serious."
           Then you say at the end of that paragraph:
           "I make no findings either way at this stage of the
       proceedings in this judgment."
           Here your Lordship specifically does not make any
       finding, but you were prepared to speculate as to the
       possibility of extraordinarily serious misbehaviour on
       the part of Post Office.
   MR JUSTICE FRASER:  Lord Grabiner, that is the claimants'
       case, and you have skipped over the passage that says:
           "On the other hand, his shortfall may, upon
       investigation ..."
           Et cetera, et cetera.
   LORD GRABINER:  Fine.  When you say skipped over, I am just
       trying to do this at speed, and I apologise.
   MR JUSTICE FRASER:  I understand.
   LORD GRABINER:  And I accept your Lordship's point, but I do
       emphasise the point that the expression "extraordinarily
       serious behaviour" is a strong expression.  It is an
       eye-catching expression.  And in the context of this
       debate, there was no warrant for it and, in my
       submission, it is extremely prejudicial and certainly
       wasn't necessary for the purposes of the Common Issues.
           523, you say:
           "For the reasons I have expressed above, I have
       considerable misgivings about Post Office's motivation
       for the treatment of Mrs Stockdale during this
       litigation and for the treatment itself in terms of
       refusal to provide obviously relevant documents.  The
       evidence of Mr Carpenter, far from satisfying these
       concerns, actually increases them.  The Post Office
       appears, at least at times, to conduct itself as though
       it is answerable only to itself."
           And then missing a couple of lines:
           "This would be a worrying position were it to be
       adopted by any litigant.  The Post Office is an
       organisation responsible for providing a public service
       which, in my judgment, makes it even worse."
           In 724, in the closing sentence:
           "It appears to wield that power with a degree of
       impunity."
           That, of course, is the Post Office.
           And 1059, at the end of that paragraph:
           "It would be perhaps too cynical for even the most
       hardened Post Office watcher to suggest that the
       problems with Horizon led to changes to and extension of
       the contractual liability of SPMs for losses that were
       adopted in the NTC.  However, that option can't be
       entirely discounted."
           In my submission, this is an unnecessary and
       speculative and offensive observation about Post Office,
       and there was simply no justification for the
       incorporation of that passage and it reveals a mindset
       impacting upon the future cases.
   MR JUSTICE FRASER:  Lord Grabiner, that passage at 1059
       arises in the following circumstances.  The clause that
       deals with liability for losses in the SPMC expressly
       requires negligence, carelessness or fault on the part
       of an SPM.  The NTC clause that deals with liability for
       losses does not have that limitation, and the
       Post Office witness who explained the evolution of one
       contract form to the other told me that the intention
       was that there would be no difference in scope for
       liability.  In other words, the NTC, on his evidence,
       was intended also to require fault, and the finding that
       I made on the clauses themselves is that that plainly
       wasn't the case on the actual words, and I rejected his
       evidence.
           In those circumstances, there was no explanation for
       the change in extent of liability from the SPMC into the
       NTC, and any comments I have made in 1059 have to be
       read in the context of the fact that I had rejected
       Mr Beal's evidence and what Mr Beal's evidence in fact
       was.
           But do I understand the submission to be effectively
       that I should simply have made the findings on the
       contractual effect of the two different contract forms
       and not dealt with Mr Beal's evidence about them at all.
   LORD GRABINER:  Absolutely, because what you have actually
       done is to lay the ground for a very strong attack on
       the basis that the contract amendments were specially
       designed in order to make life much tougher for
       Subpostmasters in the future, and this would have been
       obviously a matter for breach debate or for a more
       general view about the conduct of Post Office in the
       whole of this litigation.
   MR JUSTICE FRASER:  I understand.
   LORD GRABINER:  But to say it at that stage, in my
       submission, is unnecessary and prejudicial.
   MR JUSTICE FRASER:  I understand.
   LORD GRABINER:  In paragraph 1111, your Lordship says:
           "The Post Office describes itself as the nation's
       most trusted brand."
           You say:
           "So far as these claimants and the subject matter of
       this group litigation are concerned, this might be
       thought to be wholly wishful thinking."
           Then at the end of the paragraph:
           "The Post Office asserts that its brand is trusted
       by the nation.  The SPMs who are claimants do not trust
       it very far, based on their individual and collective
       experience of Horizon."
           Well, I mean, your Lordship can imagine what I would
       be saying about that, but my submission is that the
       passage speaks for itself.
           Criticisms under a new rubric, criticisms of
       Post Office's behaviour in this litigation,
       paragraph 34.  Your Lordship describes the evidence that
       you received, and at the end of that paragraph,
       your Lordship says:
           "The Post Office seemed to adopt an extraordinarily
       narrow approach to relevance, generally along the lines
       that any evidence that is unfavourable to Post Office is
       not relevant."
           Obviously that is a serious criticism of the way
       that the Post Office conducted the litigation.
           Then paragraph 21, you begin with the words:
           "Nothing in the judgment should be taken as my
       expressing any concluded view on the functionality of
       Horizon systems."
           So your Lordship is obviously aware of the concern
       that we are now focused upon.  And I will not go through
       the whole of that paragraph, but towards the end,
       your Lordship says:
           "However, Post Office seemed to want findings on
       that only if they were in the Post Office's favour.
       This is a peculiarly one-way approach by any litigant."
           Then I think what I want to do is to show
       your Lordship the closing submissions.  Could you look
       at transcript Day 14/36, lines 17 to 25, which are in
       {B9.3/2/682}.
   MR JUSTICE FRASER:  I am afraid it has not come up yet.
   LORD GRABINER:  Day 14, page 36, lines 17 to 25.  It is in
       the bottom right-hand corner there.  So it is line 17.
       So the closing submission is:
           "On credibility, we have a problem here."
           Does your Lordship have it?  Line 17, page 36, if
       you are on the four on a page, right-hand corner.
   MR JUSTICE FRASER:  Yes, I do, sorry.
   LORD GRABINER:  "On credibility we have a problem here
       because, of course, someone in my position would like to
       rely on the answers of these individuals and how they
       accounted, some of which, in my submission, was
       dishonest or at least not credible.  The trouble with
       that submission is that would require your Lordship to
       make findings as to that which, given the nature of this
       trial, I am not in a position to do, because at least
       there has not been full disclosure of the accounting
       relationship."
           Now, what I say about that is this.  It may be
       a good submission and it may be a bad submission, but my
       learned friend Mr Cavender was certainly not submitting
       that findings on credit should only be made if they were
       in Post Office's favour, and, in my submission, the
       conclusion that your Lordship has reached in the earlier
       paragraph we are complaining about, namely 21, I think,
       and 34, were not justified.
           Then paragraph 28 you say:
           "Another point with which I have to deal is what
       Mr Cavender called or described in Opening as a
       'challenge to the court'."
           Then just at the end of that paragraph:
           "The Post Office may have made these submissions
       because, on an objective analysis, it fears objective
       scrutiny of its behaviour, or it may have made them for
       other reasons."
           This, with respect, is a common theme in the
       judgment.  Your Lordship is speculating on all the bad
       things Post Office might have done.  Even though
       your Lordship doesn't reach a concluded view, the
       fair-minded observer would still be struck by the
       one-sided and, in my submission, prejudicial speculation
       contained in that observation.
           Paragraph 30 at the end, when your Lordship is
       summarising another approach adopted by the Post Office,
       and you say at the end:
           "This seemed to me to be an attempt to put the court
       in terrorem."
           And then at paragraph 123, your Lordship can look at
       that for context, but the bit I am interested in is
       towards the end of the paragraph, the last 15 lines or
       so:
           "The Post Office must have decided to attack him
       [that, I think, is Mr Bates] ..."
   MR JUSTICE FRASER:  Where are we?  I am sorry.
   LORD GRABINER:  Paragraph 123.  I am sorry.
   MR JUSTICE FRASER:  Not at all, 123, yes.
   LORD GRABINER:  Just the last 15 lines or so:
           "The Post Office must decided to attack him [I think
       that is Mr Bates] because the whole case of the Post
       Office requires an assumption or acceptance that the
       predominant, or only, cause of shortfalls is fault (or
       worse) on the part of SPMs.  The case by the Post Office
       is that careful and/or diligent and/or honest SPMs
       and/or their assistants do not experience shortfalls.
       Therefore, so far as the Post Office is concerned, in
       each branch where such shortfalls occurred, either the
       Claimants and/or their assistants must have at least
       some, and potentially all, of those characteristics. If
       it were otherwise, the Post Office edifice would run the
       risk of collapse."
           Again, this is an offensive conclusion and it does,
       in my submission, or would in the minds of the observer,
       reveal a mindset on the part of your Lordship.
           Paragraph 295 --
   MR JUSTICE FRASER:  Before you move on, if you go back to
       the end of paragraph 121, if you would.
   LORD GRABINER:  Yes, my Lord.
   MR JUSTICE FRASER:  I summarise in the last four lines the
       submissions that the Post Office made to me about
       Mr Bates and/or put to him in his cross-examination,
       which I described as a sustained attack, and terms used
       by the Post Office to describe his evidence included the
       following words: risible, meaningless, nonsensical and
       weak, and the Post Office's case also was that he had
       convinced himself of the truth of his own account
       because he had been campaigning against them for years.
           So in terms of putting the findings at the end of --
       I beg your pardon, not the findings, the criticisms at
       the end of 121 in context, they have to be read with
       123, don't they?
   LORD GRABINER:  That is fair enough, and I apologise.  That
       is perfectly fair, but my submission nevertheless is
       that what is at the end of 123 does involve some
       conclusions, and revealing your Lordship's thinking.
       But the real point is that regardless of what the
       evidence was or the cross-examination was, this has
       nothing to do with the contract issues, but it has
       everything to do with other matters yet to be tried.
           Of course, the last sentence is particularly
       revealing:
           "If it were otherwise, the Post Office edifice would
       run the risk of collapse."
           So it looks like a fanciful construct.  It does
       reveal a view, in my submission.
   MR JUSTICE FRASER:  Understood.
   LORD GRABINER:  295 {B7/29/100}, this is in relation to
       Mrs Stockdale, and her interview.  The last few lines:
           "If that replacement took place after April 2016,
       and if it is because of the replacement that this
       recording is not available, then that means that
       Post Office has failed properly to deal with an
       important record directly relevant to the litigation
       during the proceedings themselves."
           So the implication from that is that Post Office has
       failed to preserve evidence or may have destroyed
       evidence, but it is all left up in the air and it is
       a speculative observation.
           In 393 {B7/29/129}, again, if your Lordship would be
       kind enough just to look at that for context.
   MR JUSTICE FRASER:  393.
   LORD GRABINER:  The passage that I am going to go is to 394,
       a few lines down, after reference to Mrs Rimmer's team:
           "It may well not have been drafted by Mrs Rimmer at
       all, as some litigants' solicitors are often responsible
       for the content of witness statements.  This was not
       pursued in cross-examination, so it is neither necessary
       nor desirable to make any finding about it.  I certainly
       don't criticise Mrs Rimmer for it, although if it were
       not written by her, it should not have been in her
       statement."
           So this is an implied allegation of professional
       impropriety against Post Office's legal advisers.  We
       are all familiar with the context, but your Lordship is
       speculating about something which is actually very
       serious and it was entirely inappropriate, in my
       submission, to incorporate that into the judgment.
           Then in 532, you wholly:
           "I wholly reject this evidence by Mr Trotter."
           Then at the end of that paragraph, 532:
           "This next point was not put to him.  It appeared as
       though his witness statement had been written by someone
       else and not by Mr Trotter."
           A similar point, 476, 10 or 12 lines down, reference
       to Mr Abdulla:
           "This part of her written evidence [this must be
       Mrs Dar's evidence] sought to give the impression,
       through careful wording of her witness statement, that
       she had covered the same ground in the interview as
       contained in these much later checklists."
           Several lines down on, but towards the end of the
       paragraph --
   MR JUSTICE FRASER:  I think it is Mrs Ridge's evidence.
   LORD GRABINER:  You may well be right and I apologise, yes,
       that is right, and then just further on, towards the end
       of the paragraph:
           "This passage of her evidence appears to have been
       written for her, but again the point was not put so
       I make no findings about it."
           This is another example of an implicit allegation of
       what would be professional impropriety.  Why speculate
       about it?  It is quite unnecessary but very, very
       damaging to the view of the observer looking at this
       bearing in mind the expectation of the future trials.
           483 is the next paragraph.  It is again for context.
       If your Lordship could be kind enough to look at the
       paragraph.  But at the end of the paragraph:
           "Given by early 2017 this litigation was well under
       way it may be an example of internal suppression of
       material, but I make no specific findings on that as the
       point wasn't raised.  I can think of no rational
       explanation for this however."
           This is, in my submission, wholly inappropriate, not
       least the conclusion that apart from the suggested
       impropriety your Lordship could think of no other
       rational explanation for Post Office's behaviour.  That
       is a conclusory statement and it is an incredibly
       damaging statement.  And it is a highly prejudicial
       statement.
   MR JUSTICE FRASER:  This was a Post Office auditor asking
       for internal documents from the Post Office.
   LORD GRABINER:  It doesn't matter, my Lord, because these
       were matters which everybody knows were going to be
       subsequently dealt with.
           Paragraph 560, in subparagraph 5, even the identity
       of both the sender and the recipients of internal emails
       have been redacted from disclosed correspondence.
   MR JUSTICE FRASER:  Where are we now?
   LORD GRABINER:  Sorry, it is paragraph 560, subparagraph 5.
       Your Lordship may recall this.  This is where the
       disclosed correspondence was redacted.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  Then in later submissions on typographical
       corrections:
           "... maintain this was done for data protection
       reasons.  The contents of the emails heavily redacted
       ... the court will not go behind an assertion of
       privilege."
           Your Lordship says:
           "However, given that part of the emails are accepted
       as not being privileged and have not been redacted
       I can't see any sensible basis for maintaining any
       redaction of the identity of the sender and recipients."
           That is a serious criticism of the disclosure
       process adopted by Post Office.  It proceeds actually on
       a false basis.  Post Office did not redact those
       documents for the purposes of these proceedings.  They
       had been disclosed in these proceedings in exactly the
       same form that they were in when originally provided to
       Mr Bates.  The original versions had been redacted for
       data protection reasons.
   MR JUSTICE FRASER:  But the contents were redacted as well
       as the senders and the recipients.
           So, Lord Grabiner, if you look at line 5 of 560,
       subparagraph 5 {B7/29/175}, the contents of the emails
       were themselves heavily redacted.  So if the sender and
       the recipient's identity were redacted at the time for
       data protection I entirely accepted the correction
       Mr Cavender I think submitted.
   LORD GRABINER:  I understand your Lordship's point.
           If we may, we may come back to you.
   MR JUSTICE FRASER:  Yes, of course.
   LORD GRABINER:  All the redactions I am told were related to
       third party data.  All the redactions.
   MR JUSTICE FRASER:  Does that, therefore, mean that the
       redactions within the contents of the emails need to be
       reviewed again?
   LORD GRABINER:  No.  Those redactions within the content are
       there because they reflected data protection redactions
       in the originals.
           My understanding is that that was explained to
       your Lordship during the trial.  But I am not going to
       invite him to deal with it now, but it may be that
       Mr Cavender can deal with it.
   MR JUSTICE FRASER:  No.  Of course.
   LORD GRABINER:  Then in 561 your Lordship says:
           "These are examples in my judgment of a culture of
       excessive secrecy at the Post Office about the whole
       subject matter of this litigation.  They are directly
       contrary to how the Post Office should be conducting
       itself.  I do not consider that there can be a sensible
       or rational explanation for any of them."
           The criticism I would make speaks for itself.
           Then turning to another heading: "Criticism of
       Post Office witnesses".  375:
           "Mr Beal's way of giving evidence was very much the
       house Post Office style, certainly for the more senior
       of its management personnel who gave evidence.  This was
       to glide away from pertinent questions or questions to
       which the witness realised a frank answer would not be
       helpful to Post Office's cause."
           Then just below that:
           "He sought to give me evidence highly favourable to
       Post Office which I consider was slanted more towards
       public relations consumption rather than factual
       accuracy."
           Then in 400, the sentence:
           "That is simply not correct.  I do not accept that
       Mr Breeden could believe it was."
           In 425 in relation to Mrs Van Den Bogerd your
       Lordship said:
           "This, therefore, must mean that Mrs Van Den Bogerd
       is an extremely poor judge of relevance."
           In 544:
           "I have no reason to think that any of Post Office
       witnesses were doing anything other than stating their
       genuine belief as at 2018 based on their recollection,
       with two exceptions.  The first is some of Mr Beal's
       more extreme claims that the drafting of the NTC was
       designed to replicate a SPM's responsibility for losses
       under the SPMC.  It was also intended by Post Office
       that the contract with NFSP would be made public.
       Neither of those claims bear analysis when compared with
       the detailed drafting of each of those documents, both
       of which have been carefully drafted, no doubt with the
       assistance of sophisticated legal advisers.
           "The second is Mrs Van Den Bogerd.  She tried to
       give the impression that the detailed cross-examination
       about Mr Abdulla was something she couldn't really deal
       with because she had no detailed knowledge in the
       witness-box.  That is simply not correct.  She had
       signed a very detailed witness statement just a few days
       before for the Horizon Issues trial which dealt with the
       matters being put to her about Mr Abdulla in
       considerable detail.  I find that she was simply trying
       to mislead me."
           Further on your Lordship described an answer from
       her was "simply disingenuous".  Then further on in the
       emboldened part:
           "Mrs Van Den Bogerd did not provide any reference in
       his witness statement to matters unfavourable to the
       Post Office case."
           So two things are especially striking, in my
       submission, about these extracts.
           First your Lordship makes a very general statement
       about Post Office's house-style of giving evidence.
       That shows that from now on you are likely to disbelieve
       Post Office's evidence because it comes from
       Post Office.  In my submission that is how it would be
       viewed by an objective observer.
           Secondly, those criticisms of Post Office witnesses
       are founded on what they said or did not say about
       evidence which was irrelevant.  Ie irrelevant for that
       trial.
           Mr Beal is criticised for his understanding of how
       the liability provisions in the NTC should be construed.
       But his subjective understanding is quite irrelevant to
       their proper interpretation or construction.  That is
       always a matter for the court.
           He is also criticised for his evidence on the NFSP.
       This too was irrelevant.  Mrs Van Den Bogerd was
       criticised for not giving evidence on Horizon.  Her
       evidence on Horizon belongs properly to the Horizon
       trial.
           So we say that your Lordship's conclusions as to the
       credibility of these witnesses are unfair, not least
       because the evidence they were giving was supposed to be
       confined to the Common Issues, which is what their
       witness statements were directed to.
           The other point about these conclusions is that they
       will inevitably colour your Lordship's view of these
       witnesses as and when they come before you in one or
       other of the later trials.
           Then I think with a bit of luck I will get done by
       the short adjournment, my Lord.
           The next topic heading is "Attacks on the NFSP and
       Post Office's relationship with NFSP".
           So there were attacks on Post Office's relationship
       with the National Federation of Subpostmasters.  It was
       not represented in court and had no opportunity to
       comment on your Lordship's judgment.
           So in 368 you say:
           "It is obvious, in my judgment, that the NFSP is not
       remotely independent of Post Office, nor does it appear
       to put its members' interests above its own separate
       commercial interests."
           In 369 just for context, 370, the second sentence:
           "Such matters plainly should not be linked in the
       way that NFSP and the Post Office link them in this
       instance.  I don't consider that NFSP can, in these
       circumstances, properly be considered to be independent
       or to be acting in the interests of SPMs, given the way
       it involved its own commercial interests as a condition
       in the way explained in Part F of the judgment."
           Then if your Lordship would just be kind enough to
       look for context at 576 and 577, and then I want just to
       pick up on a emboldened passage at the end of 577.  This
       is in relation to Paula Vennells, the chief executive of
       the Post Office.  Then at the end of 577 your Lordship
       says:
           "Rather curiously, therefore, the email above
       demonstrates that the NFSP was only prepared to agree
       what amounted to an increase in its members' potential
       compensation if its own future was assured by the
       payment of substantial sums to it.  I find that this
       shows that the NFSP put its own members' interests well
       below its own.  I also find that NFSP is not fully
       independent."
           So your Lordship has there embarked on a lengthy
       discussion of the circumstances in which Post Office
       disclosed a copy of its grant agreement with NFSP in
       response to a freedom of information request.
           Your Lordship was especially interested in the fact
       that NFSP's website had been altered in the course of
       the trial.  You will probably remember that.  This is in
       your Lordship's 589.  Then towards the end of 589
       your Lordship said:
           "I was given no evidence by anyone from Post Office
       about why this was done and done in terms that suited
       the Post Office's case on this point.  I find this
       behaviour highly suspicious.  It also undermines yet
       further the claim by Post Office that NFSP is
       independent."
           So here your Lordship seems to be adopting the
       conspiracy theory approach to the evidence.  That would
       be matter of grave concern to the fair-minded observer
       aware of the context.  And, of course, a party to that
       conspiracy apparently was the Post Office, but there was
       no detailed evidence on any of this because it simply
       wasn't relevant to the Common Issues trial.
           Then earlier in these submissions and from time to
       time by reference to various paragraphs of the judgment
       I drew attention to observations of your Lordship to the
       effect that you were specifically going out of your way
       to make it clear that you were not making any findings
       on Horizon or breach.
           So if we can go back now to paragraph 517, which
       I think is the classic example in the judgment,
       your Lordship will be familiar with this paragraph and
       I will not re-read it, but 517.  It is the "crystal
       clarity" paragraph.
   MR JUSTICE FRASER:  Just give me a moment.
   LORD GRABINER:  517.
   MR JUSTICE FRASER:  Yes, thank you.  Yes.
   LORD GRABINER:  Your Lordship will obviously recall what you
       said there.
           That form of words, in my respectful submission,
       would appear to the fair-minded observer to be aimed at
       pre-empting the substantive criticisms that I have been
       making throughout.  It is just a mantra which would not
       convince the observer that your Lordship had not
       prejudged the issues which still fall to be tried by
       your Lordship.
           Unsurprisingly there is some learning on this
       subject.  The authority is the case of Steadman-Byrne.
       Could I invite your Lordship's attention to it.
   MR JUSTICE FRASER:  Yes.  Is this the one where the parties
       were called in over the short adjournment, having heard
       the claimant's evidence, and the district judge said he
       believed them and he made various other comments.  There
       are about maybe 16 comments in the judgment of
       Lord Justice Sedley that set out exactly what he said,
       I think.
   LORD GRABINER:  Yes, there was a dispute about what was said
       but Lord Justice Sedley thought that that was
       irrelevant.  It is {B9.5/14/1} I think it should be.
   MR JUSTICE FRASER:  Is it tab 14?
   LORD GRABINER:  It is genuinely 14, yes.
   MR JUSTICE FRASER:  That is the practice note.  I have
       actually been looking at it in the judgment itself.  But
       the judgment is in the practice note so ...
   LORD GRABINER:  Yes, it is.  Yes, it is, you are quite
       right.
   MR JUSTICE FRASER:  So I think paragraph 4 sets out what the
       district judge said to them over lunch.
   LORD GRABINER:  There was a dispute about what was said but
       Lord Justice Sedley didn't think that was terribly
       important.
           If we go to paragraph 5:
           "The defendant's case is that the judge, by saying
       what he said, went well beyond giving counsel an initial
       indication of his thinking and expressed firm views
       adverse to a defendant whose evidence he had not yet
       heard.  When, therefore, in his judgment the next day he
       found against the defendant, a reasonable observer,
       knowing what we have recounted, would infer that he
       might well have done so because of a prior prejudice in
       favour of the claimants and against the defendant."
           I cite that merely to make it clear beyond argument
       that it was a case of apparent bias and not actual bias,
       because the learned Lord Justice is using the formula
       applicable to the apparent bias cases.  Then at
       paragraph 12 Lord Justice Sedley says:
           "The claimants rely strongly on the remark recorded
       by their counsel but not recalled by the defendant's
       counsel; namely that the judge wanted to give both
       counsel an indication of his thoughts.  We are entirely
       content to accept that whether the district judge said
       it or not it is what he was seeking to do.  The question
       remains whether the thoughts he communicated were
       nevertheless such as to suggest to a reasonable observer
       that his mind was all but closed against the defendant."
           Then in paragraph 16 the learned Lord Justice says:
           "Both the common law and the convention for the
       protection of human rights and the fundamental freedoms
       recognise the fundamentality of every litigant's right
       to a Tribunal free both of bias and of the objective
       appearance of bias.  The appearance of bias includes
       a clear indication of a prematurely closed mind.  In our
       respectful view the district judge, albeit acting out of
       the best of motives, gave the parties an inescapable
       impression that he had formed a view not only favourable
       to the claimants, but that the defendants were not going
       to be believed if he contradicted them."
           Now the reasonable observer would certainly not be
       convinced by the formulation of words which are belied
       by the substance of the judgment, because in every case
       you can't just point to the words.  What will matter is
       the impression gained by the observer of the substance
       of the language used by the judge in the case; in this
       case your Lordship.
           What Amjad shows, in my submission, is that the
       court will and can look through the mantra and be
       prepared rigorously to test the reality.
           The real question is whether in the eyes of the
       reasonable observer that is a real possibility that
       your Lordship has prejudged matters which are still due
       to be tried by you.  That is the key question.
           As your Lordship knows, I am sure, from the Locabail
       case -- that is the only other case that I want to make
       reference to --that the benefit of any real doubt should
       be resolved in favour of recusal.
           Perhaps we can just look at that.  This is
       Lord Justice Bingham's judgment {B9.5/7/480} at the foot
       of the page between G and H.
           Lord Justice Bingham says, do you see that, between
       G and H:
           "In most cases we think the answer, one way or the
       other, will be obvious, but if in any case there is real
       ground for doubt that doubt should be resolved in favour
       of recusal."
           Your Lordship's use of what I have called, I hope
       not disrespectfully, the mantra, demonstrates your
       understanding that you should not have made findings for
       example about Horizon or breaches of contract or
       breaches of duty.
           Our case is that your Lordship nevertheless went
       ahead and made those findings.  Many of your conclusions
       and observations are strongly expressed.
           So in a nutshell my submission is that in the eyes
       of the fair-minded observer this is a very plain case
       where there is a risk of an appearance of bias infecting
       the current Horizon trial and the future trials between
       these parties.
           For that reason I respectfully invite your Lordship
       to recuse yourself from these proceedings and also
       either to stay or adjourn the Horizon trial.
           My Lord, those are my submissions.  I am sorry they
       were undertaken at great speed, but they are my
       submissions.
           If there is anything you would like to ask me about
       I am very happy to try and help you.
   MR JUSTICE FRASER:  I just had a couple of questions.
   LORD GRABINER:  My Lord, yes.
   MR JUSTICE FRASER:  So far as relief on the application,
       I think the application itself said adjourn the Horizon
       trial, which obviously is underway at the moment, and
       today you have said adjourn or stay.
   LORD GRABINER:  My Lord, yes.
   MR JUSTICE FRASER:  Can I just be clear what in fact is
       meant by either or each of those terms.
           The evidence of fact is almost finished.  If I were
       to recuse myself from being the managing judge of the
       group litigation that would obviously include recusing
       myself from any further involvement in the Horizon
       Issues trial.
   LORD GRABINER:  My Lord, yes.
   MR JUSTICE FRASER:  That would then have to start again in
       front of another judge.  Is that correct?
   LORD GRABINER:  Yes, is the answer.  How long has this trial
       been going on for?
   MR JUSTICE FRASER:  Two weeks.
   LORD GRABINER:  Would your Lordship bear with me for
       a moment.
   MR JUSTICE FRASER:  Yes.  (Pause)
   LORD GRABINER:  Yes, I think that would be the consequence.
       Yes.
   MR JUSTICE FRASER:  It is really abandon or stop the Horizon
       trial.
   LORD GRABINER:  Yes.
   MR JUSTICE FRASER:  So it can be reheard from scratch.
   LORD GRABINER:  Precisely.
   MR JUSTICE FRASER:  Yes.  Right, thank you very much.  That
       is the first question.
           The second question is slightly mundane in terms of
       the observations and submissions that you have made
       already in respect of Mr Beal, but just to ask
       a specific question about Mr Beal with particularity.
           At page 94 of today's transcript when you were
       taking me through the passages in respect of my
       observations on the relationship with the NFSP you said
       that I had criticised Mr Beal for giving irrelevant
       evidence, or I had criticised him in respect of
       irrelevant evidence.  Do you recall those submissions?
   LORD GRABINER:  Let me just look at my --
   MR JUSTICE FRASER:  544 is the paragraph of the judgment
       where I deal with an observation on Mr Beal and an
       observation on Mrs Van Den Bogerd.
   LORD GRABINER:  What I said was Mr Beal is criticised for
       his understanding of how the liability provisions in the
       NTC should be construed.
   MR JUSTICE FRASER:  Yes, that is correct, you did say that.
           If we can just call up on the common screen for the
       Common Issues trial, please, {C2/2/6}.
           That is Mr Beal's witness statement where he gives
       evidence about a point which you and I have already
       debated a little bit, which was the difference in fault
       or no fault liability under each of the two contract
       forms.
           Now on the basis that he had given that evidence in
       his witness statement I assume the Post Office's
       position is that that was relevant evidence and Mr Green
       could cross-examine on it.  But if I have misunderstood
       that would you tell me.
   LORD GRABINER:  My response to that is first of all it
       obviously was in the witness statement but it was
       irrelevant to the matters in the trial.
   MR JUSTICE FRASER:  Understood.
   LORD GRABINER:  And whatever came out of the
       cross-examination was similarly irrelevant.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  It goes back to a point that I sought to
       make at the beginning of these submissions, which is the
       fact that irrelevant material was incorporated into any
       of the witness statements and/or was cross-examined is
       supremely irrelevant because it doesn't thereby enlarge
       the Common Issues that were the subject of the trial.
   MR JUSTICE FRASER:  I understand.  That is very helpful,
       thank you.
           Then the final point -- and it may be that you are
       not able to give me an answer immediately, in which case
       you can just give me the brief answer at the beginning
       of your reply -- am I entitled or not, would
       a fair-minded hypothetical observer take account of the
       result in the Common Issues judgment in terms of how
       many issues were resolved in the Post Office's favour
       and how many were resolved in the claimants' favour or
       not?
   LORD GRABINER:  Absolutely not.
   MR JUSTICE FRASER:  Wouldn't take note.  Thank you very
       much.  That is very helpful.
   LORD GRABINER:  Absolutely not.  It would be irrelevant.
       The only matters that are relevant is whether it can
       fairly be said that there are passages in the judgment
       which give rise to the concern I have been describing.
   MR JUSTICE FRASER:  Thank you very much.
   LORD GRABINER:  The fact that at the end of the day the
       weight of the findings was in favour of one side or the
       other would, in my submission, be irrelevant.
   MR JUSTICE FRASER:  Thank you very much indeed.  That is
       almost perfectly timed on your part, if I may say so,
       and we will come back at 5 past 2 and I will hear from
       Mr Green.
   (1.00 pm
                     (The short adjournment)
   (2.05 pm)
                     Submissions by MR GREEN
   MR JUSTICE FRASER:  Mr Green.
   MR GREEN:  May it please your Lordship.  The claimants'
       submission is that this is an application without merit
       and without foundation.  There are effectively three
       strands to that submission.
           The first is that it wholly ignores the proper role
       of context.  The second is that it appears to proceed on
       a misapprehension as to the correct approach to
       analysing apparent bias.  The third is that it proceeds
       specifically on a misapprehension as to the proper
       judicial assessment of the proceedings as they actually
       were before your Lordship during the Common Issues
       trial.
           There is a preliminary point to make about the
       informed observer test.  The informed observer is
       someone who is presumed to actually have been at the
       trial and know what happened, not commenting on it from
       afar and not island-hopping between different findings
       and observations to make assertions about those without
       having regard to the judgment as a whole.
           Taking the points in stages --
   MR JUSTICE FRASER:  Is that right, though?  Is it not
       sufficient for the reasonable well-informed observer
       just to read judgment number 3?
   MR GREEN:  My Lord, no, the law is clear that the
       reasonably -- well, the informed observer test is (a) an
       objective one and (b) an informed one.  So the informed
       observer knows about the trial as it was presented to
       your Lordship.
           In one case, there is even a point about knowing
       things that perhaps even weren't in the public domain
       about the trial.  So "informed" I would underline in
       relation to the approach of the informed observer test.
           A couple of short points in relation to context, and
       those points are these, and I think your Lordship will
       have apprehended what these submissions would be anyway.
           The first point is that specific findings or
       observations in a judgment should not be taken out of
       their immediate context.  That is, either lines which
       are within the same paragraph but have been omitted from
       mention, which either directly contraindicate what is
       being said of the other lines that are mentioned or put
       those lines into a context which is explanatory, or
       adjacent paragraphs which give the overall context
       within which the particular paragraph falls.  I refer to
       that as the immediate context.
           The second point of context is that those passages
       should not be considered without regard to the judgment
       as a whole and read as a whole, including
       your Lordship's findings in favour of some of
       Post Office's witnesses, for example, and having due
       regard to the presence or absence of a careful and
       meticulous approach to analysing with precision what
       evidence was and was not given, how it was challenged
       and what submissions were made about it.
           The third matter of context is to look at the
       proceedings themselves and the issues that your Lordship
       had directed to be tried and how the parties had in fact
       presented their cases before the court.
           The fourth matter of background, but important
       context, is the fact that this is group litigation where
       frequently the managing judges are put in a position
       where parts of trials have to be separated off, as
       sensibly as they can be, never perfectly hermetically
       sealed from other aspects, and tried and tried fairly
       and sensibly.
           That is the quintessential role of the managing
       judge for which part 19 of the Civil Procedure Rules
       makes provision.
           I will take your Lordship, if it is necessary, to
       the British Coal case, which we have in the bundle,
       which addresses the generosity of approach to a managing
       judge in those circumstances.
           Your Lordship is very familiar with the passages
       that have been identified in Mr Parsons' 15th witness
       statement and the words that precede and follow them and
       their context, because it is in your Lordship's
       judgment, so I am not going to spend the time that I do
       have taking your Lordship through them paragraph by
       paragraph, not least because I hope we have given
       sufficiently illustrative examples of our answers in our
       written skeleton argument.
           But it is important to address some of the points
       which arise in relation to the Common Issues themselves,
       and how they in fact arose before your Lordship.  So the
       first point to note is that the Common Issues were not
       plucked out of the air.
           The Common Issues were agreed between the parties
       and they were derived from the parties' generic
       pleadings, which is an important point, and the key
       paragraphs to which they referred, although inevitably
       not all paragraphs, were identified in the schedule to
       the order which defined the Common Issues themselves.
           Your Lordship will know that, for example, some of
       the more famous paragraphs in the generic defence, like
       93 and 94 about the approach to construction and where
       the burden of proof should lie, were identified in that
       Common Issues document.
           And what then followed was the service of evidence
       by Post Office for their part, which was designed to
       support the factual premises which they had pleaded as
       being expressly relevant to construction of the
       contracts.  I will very briefly make these points good
       in a moment.
           What then followed was Post Office's attempt to
       strike out the only evidence that the lead claimants
       individually could give in response to whether or not
       the factual assertions designed to support Post Office's
       pleaded case on construction were in fact a reliable and
       realistic account of what would happen on the ground or
       not.
           That was unsuccessful for a number of reasons which
       your Lordship will remember in the admissibility
       judgment, which is judgment number 2, which I will also
       come to very briefly in a moment.
           From there, Post Office then elected not to put in
       any more evidence, not to abandon the evidence that it
       had chosen to put in on matters such as training and so
       forth, but in its opening and closing to continue with
       the premise for construction upon which Post Office's
       entire case on the Common Issues depended.
           There were two particularly important facets to
       that.  The first facet was what had been pleaded at
       paragraphs 76, 85, 93 and 94 of the generic defence, and
       those factual assertions which I will take your Lordship
       to in a moment.  That is one side of it.
           The other facet of the Post Office's case was the
       agency relationship, because Post Office expressly
       opened and closed on the footing that the agency
       relationship suffused the entire contractual
       relationship, and the contractual relationship sat atop
       of the agency relationship and any findings as to the
       nature of the agency relationship and the role of the
       account as between principal and agent necessarily
       involved the court determining what the branch trading
       statement was, in fact, because that was disputed, as
       your Lordship records in the judgment, and how it came
       about and what it included.
           That was necessary, and I don't think that can
       sensibly be disputed.
           So those were the two key facets in relation to
       construction.  The third area was credit.  That loomed
       very, very large in the proceedings as they were
       actually conducted before the court.
           My Lord, can I just take your Lordship very briefly
       to the generic pleadings, which I think your Lordship
       will remember.  Rather than going through them in
       detail, your Lordship will remember --
   MR JUSTICE FRASER:  I don't think on an application such as
       this, given its subject matter, it is necessary to go
       through the pleadings in detail.
   MR GREEN:  I am grateful.
   MR JUSTICE FRASER:  But if you are going to draw my
       attention to what a part of a pleading says -- because
       I remember the Common Issues' schedule or schedule 1 to
       the order that set down the Common Issues was drafted
       and agreed by the parties, but it was approved by the
       court.
   MR GREEN:  Exactly.
   MR JUSTICE FRASER:  And within it, it had numerous
       references to pleading paragraphs, a point which, during
       the trial, I required both parties to get rid of those
       so that it was a standalone document.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  Where do you want me to go?
   MR GREEN:  Maybe the most convenient place to look, my Lord,
       is in judgment number 2, in the admissibility judgment,
       which I think your Lordship may have in a separate hard
       copy folder.  {B7/27/1} on Opus.
           If we look at paragraph 40 {B7/27/14} of that, this
       is your Lordship's judgment on the admissibility
       application, and so this highlighted the relevance of
       these paragraphs, if it was ever in doubt, which I will
       submit it wasn't to Post Office:
           "This paragraph is pleaded to by the defendant in
       paragraphs 93 and 94 of the generic defence.  These
       state as quoted below."
           Another relevant passages precedes these in
       paragraph 76.  76 sets out some subparagraphs and in
       particular, if we look at (4) onwards:
           "Post Office was unable to monitor at first hand the
       transactions undertaken in branches on ..."
   MR JUSTICE FRASER:  Pause for a moment.  I think we need to
       go on to page 15.
   MR GREEN:  It is on the next page, if we can.  {B7/27/15}
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  There we go:
           "Post Office was unable to monitor at first hand the
       transactions undertaken in branches on its behalf, in
       relation to which it was liable to Post Office clients.
       These transactions and the manner in which they were
       carried out were the responsibility of the relevant
       Subpostmasters."
           Then the same point about custody of property, and
       then (6):
           "Post Office relies on the accurate reporting by
       Subpostmasters of accounts, transactions and the cash
       and stock held at the branch."
           And then at 93, paragraph 93, which is just below:
           "Post Office notes the claimants' case set out in
       paragraph 55 applies only to section 12, clause 12
       [which is the burden of proof point].  More generally,
       as regards shortfalls disclosed in a Subpostmaster's
       accounts, the Post Office notes the following
       principles, each of which applies to Subpostmasters."
           And then the subparagraph (1):
           "Where a Subpostmaster asserts that he or she is not
       responsible or liable for a shortfall, the legal and/or
       evidential burden of proof is on him or her to establish
       the factual basis for such assertion in that:
           "(a) In the absence of evidence from a Subpostmaster
       to suggest that a shortfall arose from losses for which
       he or she was responsible, it is appropriate to infer
       and/or presume that the shortfall arose from losses for
       which he or she was responsible.  Such an inference
       and/or presumption is appropriate because (1) branches
       are under the management of Subpostmasters or their
       assistants, (2) losses do not arise in the ordinary
       course of things without fault or error on the part of
       Subpostmasters or their Assistants and (3) it would not
       be right to infer or presume that a shortfall or loss
       was caused instead by a bug or error in Horizon."
           Then it goes on:
           "Subpostmasters bear the legal burden of proof that
       a shortfall did not result from the losses for which
       they were responsible.  This is because (1) the truth of
       the matter lies peculiarly within the knowledge of
       Subpostmasters as the persons with responsibility for
       branch operations and the conduct of transactions in
       branches, (2) it would be unjust for Post Office to be
       required to prove allegations relating to matters that
       fall peculiarly within the knowledge of Subpostmasters,
       and/or (3) where a person is subject to fiduciary
       obligations as regards his or her dealing with assets
       the burden is on that person ..."
           And so forth.
           So if your Lordship looks at the foot of that page,
       94 as to section 12, clause 12 of the SPMC:
           "That should construed in accordance with the
       principles set out in paragraph 93 above."
           So that is all from the generic defence, not recited
       there, but from paragraph 85 of the generic defence,
       which is -- page 39 of the generic defence is:
           "The written Subpostmasters' contracts are to be
       construed as a whole and in light of the relevant
       factual matrix pleaded in paragraph 76 above."
           Which is the paragraph to which I have already
       referred the court.
           So the starting point was that your Lordship had
       regard to the positive case being advanced by the
       Post Office when considering the relevance of the
       evidence that was sought to be struck out by the
       Post Office.
           That is essential context, and I note my noble and
       my learned friend Lord Grabiner did not actually I refer
       to the basis upon which the Post Office itself invited
       this court to construe the contracts at all in his
       submissions.
           We respectfully say that is an impermissible
       omission because it seeks to advance a criticism of the
       judgment which is unfounded when you go back to look at
       the case that your Lordship was considering as advanced
       by Post Office and the case in support of which the
       relevant evidence was adduced by Post Office through its
       witness statements.
           Now, the evidence of Mrs Van Den Bogerd was
       considered in some detail and your Lordship made
       findings in relation to her evidence.  And the reading
       note which Post Office submitted to the court explaining
       the relevance of different aspects of their evidence --
   MR JUSTICE FRASER:  Bear with me one moment, Mr Green, just
       one moment.  (Pause)
           Yes, sorry.  I mislaid a file.  Reading note.
   MR GREEN:  The reading note is at {C2/0/1} on Opus.
   MR JUSTICE FRASER:  I think I mentioned the reading note in
       the judgment.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  Do you have a reference for where I did
       that?
   MR GREEN:  I don't, my Lord, but I can find one.  And the
       reading note identified, if we go over the page
       {C2/0/2}, there is Mrs Van Den Bogerd's evidence.
   MR JUSTICE FRASER:  Paragraph 365, I described it as
       a helpful reading note, I think.
   MR GREEN:  Indeed, and your Lordship will see at page 2 of
       that reading note under "Subpostmasters and their
       branches" there are, for example, Horizon, training and
       support, causes of shortfalls, see also Helen Dickinson,
       Post Office's reliance on Subpostmasters and
       responsibility for shortfalls.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  Then Helen Dickinson we can see at the bottom
       gives evidence about fraud in branches and concealing
       shortfalls and so forth.
           What is striking in Mrs Van Den Bogerd's statement
       was the extent to which she covered matters which did in
       fact or purport to support the case that Post Office --
       Post Office's pleaded case in those pleaded paragraphs
       to which I have just referred.  If we look at {C2/1/1}
       --
   MR JUSTICE FRASER:  That is her witness statement.
   MR GREEN:  That is her witness statement.  And at the foot
       of that, there is an index, but just above that, she
       says:
           "I also provide some commentary on what the
       real-world effects of the Claimants' alleged
       interpretation of the Subpostmasters contracts."
           I think it should say "are" or "would be" and
       I think that is suggesting relevance because it may
       assist the court to test the commercial sense of
       different constructions contended for.
           But it is clearly, as we can see in a moment,
       designed to show that the Subpostmasters' contention,
       the claimants' contention, was unworkable.  I am not
       going to take your Lordship through the statement.
   MR JUSTICE FRASER:  I don't think, on the basis of how
       Lord Grabiner puts the application, you need to or ought
       to, because it is put fairly squarely on the contents of
       judgment number 3.
   MR GREEN:  My Lord, indeed.  The only problem is that I was
       going to briefly identify a couple of points, if I may,
       and then explain why I say it is relevant to how the
       application is put.
           Just by way of a couple of points, page 23 of that
       document at paragraph 78 {C2/1/23}, does your Lordship
       have the bottom three lines from the middle:
           "This means that the Subpostmaster has complete
       control over the branch accounts and transactions only
       enter the branch accounts with the Subpostmaster's (or
       his assistant's) knowledge."
           And that rather teases out the point that
       your Lordship asked my learned friend about in relation
       to transaction corrections entering the accounts and how
       the branch trading statement would come about.
           On page 37 at page 135 at the end of that paragraph
       {C2/1/37}, it says:
           "It would be unlikely that a Subpostmaster, having
       kept his accounts diligently, still had no idea where
       a material problem was arising from."
   MR JUSTICE FRASER:  Where have you just read from?
   MR GREEN:  It is the foot of paragraph 135.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  These are just examples, my Lord, but page 39,
       paragraph 145 {C2/1/39}, says:
           "In any event, for the reasons set out above, the
       Subpostmaster is best placed to investigate shortfalls
       and Post Office generally cannot find the root cause of
       a shortfall without the Subpostmaster's cooperation.
       A reversal of the burden for determining the root cause
       of shortfalls would also create the perverse situation
       whereby the greater the scale and sophistication of the
       false accounting by a Subpostmaster, the less likely
       Post Office will be able to find the root cause of
       a shortfall."
           Et cetera.  And that refers back up to evidence or
       argument about the fact in branch, for example 142, no
       transaction enters their accounts without their consent.
       This includes transaction corrections, which must be
       accepted by the Subpostmasters before they form part of
       the branch accounts, and causation in 143.
           Now, it is right -- I am sorry to just to have
       pressed on to that, because I wanted to show
       your Lordship why I say those passages are relevant, and
       they are relevant because the correct approach on an
       application such as this is to consider and the informed
       observer is taken to know what the issues were and how
       they were presented before the court.
           And it was their positive case pleaded case, which
       they repeatedly refused to abandon, notwithstanding
       being instructed do it at least two CMCs, as we have
       explained in our skeleton argument.
   MR JUSTICE FRASER:  Not invited to abandon by me.
   MR GREEN:  No, by the claimants.
   MR JUSTICE FRASER:  But the fact that they were invited to
       abandon it by the other side is neither here nor there.
       It was their pleaded case.
   MR GREEN:  It was their pleaded case.  It might sharpen any
       argument on election, having elected to persist with it,
       but I take your Lordship's point.  It was their pleaded
       case, and all this evidence, which is the flip-side of
       many of the findings that my learned friend
       Lord Grabiner has been referring to, were positively
       asserted by Post Office.  So they were positively in
       issue as to whether or not Post Office was entitled to
       take succour from Mrs Van Den Bogerd's evidence in
       support of its pleaded case before the court.
           So we say it is extremely surprising that neither
       the application nor the submissions that your Lordship
       has heard this morning face up to and deal with head-on
       the fact that Post Office positively advanced in its
       pleadings and directly in its evidence the case I have
       just identified.  That is a matter of context which it
       would be completely wrong to leave out of account.
           Against that background, my learned friend suggested
       there was a bit of a quandary after judgment number 2
       about how to play the cross-examination.
           We respectfully say that is not right, partly
       because of the case positively being advanced and still
       being advanced at that stage.  Secondly, because the
       admissibility application had itself spelt out -- the
       judgment on the admissibility application had itself
       spelt out why it was that these matters might be
       relevant to the matters pleaded by Post Office.
           So Post Office was not trying to get what
       your Lordship's view could be; but had at the very
       lowest a careful steer about its potential relevance in
       the admissibility judgment number 2.
           My Lord, there is an irony in the reliance that is
       placed by the Post Office on the transcripts of the
       hearings that run up to the admissibility application,
       because the premise of this application is that
       your Lordship, having expressed a robust view, will be
       regarded by the informed observer as not amenable to
       persuasion.
           Your Lordship will remember the warnings that you
       gave me about putting in irrelevant evidence and, if
       necessary, sitting there and crossing them out line by
       line, because they have included them in their
       application.  And those indications were robust and they
       were repeated at a number of hearings before
       your Lordship had heard full argument on the detail of
       what that evidence might be relevant to.
           That is all just part of normal adult behaviour in
       court.  What then happens is that there is an
       admissibility hearing and it goes the other way.
           So in Mr Parsons' 14th witness statement, he is
       actually relying on a sequence of interlocutory events
       that positively demonstrate that notwithstanding having
       expressed extremely robust views at a number of
       interlocutory hearings, your Lordship was amenable and
       dealt with the admissibility application with an open
       mind.  The irony of that is not actually acknowledged
       anywhere either in the application or in my learned
       friend's submissions.
           Now, it is right too to identify that, as
       your Lordship will have seen from the conclusion to our
       skeleton argument at page 51, which is at {B9.4/2/51} --
   MR JUSTICE FRASER:  Did you say your page 51 of your
       skeleton?
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  That is your final paragraph, is that
       right?
   MR GREEN:  That is the final paragraph before the annex.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  This just one example, but quite a striking one:
           "The Post Office's invocation to the Court in both
       Opening and Closing Submissions to construe the contract
       on the basis of its evidence, by way of particular
       example, that of Mrs Van Den Bogerd:
           "Issues 8 and 9 concern the proper approach to
       responsibility for losses.  They should be considered
       against the factual background of how accounting works
       in a Post Office branch as described by
       Angela Van Den Bogerd at paragraphs 73 to 82 and 126 to
       140 ..."
           Now, pausing there, there is an element of
       Groundhog Day here, my Lord, because what actually seems
       to be the position is that when Post Office sought to
       strike out the claimants' evidence, they wanted
       a one-sided trial where they could tell your Lordship
       what the factual background was in support of their
       pleaded case, and we couldn't adduce any evidence to
       contradict it.  And your Lordship didn't accept that was
       the appropriate way to conduct the trial on those
       factual issues.
           Then what happens is at the trial in opening and
       closing, they are still saying to the court that that is
       the right approach.  So when your Lordship makes
       findings on those matters or matters on which they may
       depend -- so the suggestion, for example -- I will give
       a concrete example of this.  The suggestion that
       Subpostmasters are best placed to find the root cause of
       shortfalls, you cannot sensibly identify that and test
       that proposition, which is, after all, the Post Office's
       own case.  Without saying, well, was there any training
       on that, it is absolutely impossible.
           And that is why Mrs Van Den Bogerd sought to put in
       evidence about training in her witness statement.  It
       was the underpinning, the base layer, beneath which the
       proposition that for various reasons, including the
       training which told them how to do it, they would be
       well placed or peculiarly well placed to find the cause
       of shortfalls.
           Not only is there the definition of the
       Common Issues by reference to the pleadings, there is
       also the highlighting of the significance of those
       issues and the relevant evidence that goes to them in
       the admissibility judgment.  Then there is the opening
       and the closing which invites the court to determine
       these issues in the light of evidence actually given by
       Post Office and then there is the middle of that
       sandwich of opening and closing, we have got how
       cross-examination was actually conducted.
           I hesitate to say so, but my learned friend
       Mr Cavender did actually go first in cross-examining.
       So the idea that, as I think is suggested, at the very
       least tentatively if not more firmly, that somehow the
       scope of cross-examination was all my fault because of
       how I cross-examined or others with me is a little bit
       surprising, because actually, what happened is there was
       widespread cross-examination by Post Office of the lead
       claimants on a wide-ranging series of matters.  There
       are some particular categories which are important.  One
       key category is on pre-contract dealings.
           The reason it is a key category is because it is one
       which no one can sensibly dispute was in issue.  And
       there were very, very firm challenges made, as
       your Lordship knows, in relation to the credit and
       credibility of the lead claimants in relation to those
       matters.
   MR JUSTICE FRASER:  All the lead claimants had their credit
       challenged and there were factual issues in relation to
       contract formation of all six of them.
   MR GREEN:  Exactly.  So credit was bound to be -- was
       necessarily relevant, we say, to any proper judicial
       assessments.  And I will make this submission good in
       a moment by reference to an authority, but on any view,
       it is absolutely common sense that credit generally was
       relevant to the acceptance or rejection of the lead
       claimants' evidence.
           In our respectful submission, it was right that
       your Lordship should have regard to the challenges in
       fact made, as your Lordship did, not to parse them in
       the way rather artificially that Post Office invited the
       course to do.
           So category 1 was pre-contract.  And then category 2
       was lots of evidence about credit, and category 3 was
       evidence about how things worked in reality.  That was
       essentially responsive evidence to the defendants'
       evidence that it was adducing in support of its pleaded
       case.
   MR JUSTICE FRASER:  It also goes to credit too, though,
       doesn't it?
   MR GREEN:  I was going to say there is a big overlap, as
       your Lordship I think put to my learned friend.
   MR JUSTICE FRASER:  Say, for example, Mr Abdulla, if
       Mr Abdulla had not been accused of lying and had not
       been accused of a criminal offence and had not in fact
       been asked at all about his suspension and termination,
       then, for example, Mrs Ridge's suspension interview with
       him would not necessarily be relevant.
   MR GREEN:  I might not have needed to cross-examine on it.
   MR JUSTICE FRASER:  Whether you needed or not, let's put it
       to one side.  I am talking about strict admissibility
       and relevance, because evidence has to be relevant in
       order to be admissible.
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  Once, for example, he was cross-examined
       on the transcript of his suspension interview, then you
       became entitled to ask questions.  The way that
       Lord Grabiner explained it this morning, though, is that
       that attack on Mr Abdulla's credit should only have been
       considered insofar as it went to pre-contractual --
       well, to contractual formation matters and that
       I crossed the line by going wider than that and dealing
       with the other matters that Mr Cavender had put to
       Mr Abdulla.  What do you have to say about that?
   MR GREEN:  With no disrespect to my learned friend, that is
       a hopeless and unrealistic submission and it is wrong.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  If a challenge is adduced as to credit, and
       I would say a fortiori where someone is accused of
       a criminal offence or dishonesty --
   MR JUSTICE FRASER:  That is why I chose Mr Abdulla as an
       example.  There were two lead claimants accused of
       criminal offences, and I think Mrs Stockdale was the
       other one.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  There is a powerful argument that ex debito
       justitiae they're entitled to a finding openly in the
       judgment if the court does not agree with what has been
       put openly to them.  And even if that is not right, if
       there is no entitlement, it is certainly permissible.
   MR JUSTICE FRASER:  I didn't make any findings in respect of
       either of those points.
   MR GREEN:  No, my Lord.  That is my point, and I am saying
       what your Lordship did fell well below that.
       Your Lordship took a view about credibility in the light
       of the matters that were put and the answers that were
       given.
           And the extraordinary contortions that the
       Post Office found themselves in are reflected at
       paragraphs 80 to 82 in our skeleton argument.
   MR JUSTICE FRASER:  Let me have a look.
   MR GREEN:  I know that my learned friend Lord Grabiner read
       out the passage in the transcript where I interrupted my
       learned friend Mr Cavender, who was saying: well,
       someone in my position would normally want to say that
       Mr Abdulla wasn't telling the truth.
   MR JUSTICE FRASER:  Where am I going?
   MR GREEN:  Page 80.
   MR JUSTICE FRASER:  I thought you said paragraph 80, I am
       sorry.  This is in the annex.
   MR GREEN:  Yes, in the annex, annex 1.
   MR JUSTICE FRASER:  Which paragraphs?
   MR GREEN:  It starts at 197, my Lord.  {B9.4/2/80}
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  The reason this arose, as reflected in the
       transcript, was my learned friend was making the
       submission that someone in his position would normally
       want to say is that Mr Abdulla had not given honest
       evidence.  I interrupted to point out that is exactly
       what their closing submissions in writing did say at
       paragraph 592.
   MR JUSTICE FRASER:  That is the passage that Lord Grabiner
       took me to this morning.
   MR GREEN:  Precisely, and what follows from that, as your
       Lordship rightly remembered --
   MR JUSTICE FRASER:  I think I politely told you to stop
       interrupting.
   MR GREEN:  I think you politely told me to stop
       interrupting, which I did and was noted.  What then
       happens is that the matter is effectively sought to be
       cleared up by the document that we have at {A/18/1}
       because the court was not clear precisely where this
       dividing line was drawn.
           This is the note at A/18/1, and the Post Office's
       position by that stage, after closing, was that:
           "The court should refrain from making any findings
       of fact on matters going to issues outside the scope of
       the Common Issues trial, specifically matters going to
       issues of breach and causation.  It follows, for example
       that no findings should be made on whether various
       claimants were guilty of false accounting, nor, by
       parity of reasoning, should findings be made as to how
       Post Office investigated losses or issues associated
       with false accounting.
           "Conversely, findings of fact will need to be made
       on matters going, or arguably going, to the
       Common Issues, in particular, on whether the various
       claimants did or did not receive various contractual
       documents and other documents relevant to the
       Common Issues at or before the time of contracting.
       Those findings will necessarily require the court to
       take a view as to the credibility of the claimant and
       the Post Office witnesses in their evidence on those
       matters.
           "Post Office's position is that in making those
       findings and in taking that view on credibility, the
       court should:
           "(a) Take account of evidence given by witnesses on
       matters within the scope of the Common Issues trial.
       So, for example, the court's findings on whether
       Mr Bates received a copy ... will presumably take into
       account the evidence he gave on that issue, and on
       associated issues raised in cross-examination, (for
       example, whether he is careful generally or whether he
       had a copy of the SPMC when writing to the
       Post Office ..."
           And so on:
           "(b) Take account of evidence on matters which go to
       the witnesses' credibility, but do not risk trespassing
       on any future trial, because they do not go to issues of
       breach or causation.  For example, Mr Abdulla's evidence
       on whether Christine Adams and Christine Stephens were
       the same person can be taken into account in assessing
       his credibility.
           "(c) Not take account of evidence which, while it
       may go to the witness's credibility risks trespassing on
       a future trial or trials.  For example, the Court should
       not make any findings on whether Mr Abdulla falsely
       accounted, even though such matters might be relevant to
       his credibility.  Nor (staying with this example) should
       the court base any findings on Mr Abdulla's credibility
       which are necessary to decide the Common Issues on his
       evidence as to the allegations of false accounting made
       against him."
           Pausing there, they then go on to say that:
           "To facilitate drawing that line as cleanly is
       a possible in the circumstances, the Post Office
       withdraws the submissions made in the seventh and eighth
       sentences of paragraph 592 of its closing submissions."
           We have reproduced that at page 81 and page 82 of
       our skeleton argument {B9.4/2/82}.
   MR JUSTICE FRASER:  Is that the strike through in
       paragraph 200?
   MR GREEN:  Exactly, and what it leaves in place is:
           "The central fact about Mr Abdulla's evidence can't
       be avoided.  He lied frequently and brazenly."
   MR JUSTICE FRASER:  That specifically wasn't withdrawn.
   MR GREEN:  Precisely, and that is left in play and
       specifically not withdrawn.
           And moreover, if your Lordship looks at the bottom
       of that paragraph:
           "He said that he was given the impression in the
       interview held following the revelation of his
       wrongdoing that if he paid back the money he would be
       reinstated; that was untrue, as the transcript showed.
       He claimed to have called the helpline very frequently,
       then, when the call logs were put to him, said that in
       fact he gave up and stopped calling.  And he claimed to
       believe this was all a conspiracy to eject him from his
       branch."
           Pausing there, not only was the very carefully
       parsed approach to bright line relevance and irrelevance
       such as to leave in the allegation that he lied
       frequently and brazenly, but it was also specifically to
       leave in all these post-contractual matters, including
       helpline and all these other things and the impression
       in the interview with Mrs Ridge.
   MR JUSTICE FRASER:  That is the suspension interview, isn't
       it?
   MR GREEN:  Indeed.  All of these later matters were left in
       for your Lordship to consider, and your Lordship is now
       saying there's an appearance of bias because you did.
   MR JUSTICE FRASER:  I am not, Lord Grabiner is saying.
   MR GREEN:  Lord Grabiner is saying there is an appearance of
       bias because your Lordship did what you were asked to,
       which is just bizarre.  I have certainly never come
       across a recusal application of this type, it must be
       pretty unique.
   MR JUSTICE FRASER:  That is not entirely relevant, though.
   MR GREEN:  It is a trailblazer, if we can put it in those
       terms, because it is difficult to find an example of
       a recusal -- and I will show your Lordship why I say
       this very carefully in a moment -- it is difficult to
       find any example in the authorities of a judge carrying
       out the judicial assessment that he is required to carry
       out and giving judgment and the losing party then
       alleging bias against him on a proper foundation.
   MR JUSTICE FRASER:  I think there is -- well, the case in
       the bundle which seems closest is possibly Otkritie, but
       I don't want to knock you off your course.  I assume we
       will get to the law at some point.
   MR GREEN:  My Lord let's do it now.  Otkritie is at tab 26,
       it is {B9.5/25/1}.
   MR JUSTICE FRASER:  But I do remain of the view, Mr Green,
       that whether it is unique or not is not relevant.
   MR GREEN:  It is not dispositive, I agree.  I am just trying
       to identify where we are in the pantheon of types of
       apparent bias that have been recognised by the courts
       and I respectfully say on a proper analysis nowhere.
           If we look at Otkritie, the -- can I just make one
       final point in relation to those passages I was looking
       at?
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  I respectfully say that when a witness is accused
       of dishonesty, the court will assess the witness'
       honesty in the round in the light of the atmosphere in
       court, the witness' demeanour and all the answers and
       all the questions that the witness was asked.  It is
       quite wrong to urge upon the court a contrary approach.
           For example, a witness who might have had difficulty
       answering a question which was directly related to
       a Common Issue, but gave answers which suggested he was
       compellingly honest on a matter that one would now be
       urged to leave out of account, we say is that
       a completely wrong approach and not justified, and
       I have not found any authority to support it.
   MR JUSTICE FRASER:  However I assess the credit of any of
       the witnesses, that is contained on the face of judgment
       number 3.
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  So any amplification or an argument
       about it or analysis doesn't much matter, really.
   MR GREEN:  No.  No, my Lord.  The only point we are
       respectfully saying is that the basis of the application
       criticising your Lordship's judgment is wrong.
   MR JUSTICE FRASER:  Yes, all right.
   MR GREEN:  There is a second facet to that, which is this.
       That what is said is that not only has your Lordship
       fallen into the error of considering irrelevant
       material, because that is present in all three
       categories, but studiously avoided is any suggestion
       that such findings would not have been otherwise
       available to you.
           So there is no suggestion that the impugned findings
       were without proper foundation in the evidence you did
       hear at all.  What is said is they are irrelevant and
       your Lordship should not have made those findings for
       a number of reasons.
           In the category of -- in the second two categories,
       what is said about -- or the third category, perhaps,
       the witnesses, my learned friend said this morning at
       page 94 of the transcript between lines 14 and 19 that
       your Lordship's findings against witnesses would
       effectively create apparent bias in relation to
       your Lordship entertaining their evidence in future
       trials.  That is effectively the submission that is
       made.
           My Lord, that is wrong in law, and demonstrably so,
       and I will explain why.  If we go to paragraph 40 of
       Otkritie --
   MR JUSTICE FRASER:  14.
   MR GREEN:  40, which is on page 14 {B9.5/25/14}.  One can
       see in the second line of paragraph 4:
           "The authorities to which I have referred make it
       clear that the mere fact that the judge has made adverse
       findings against a defendant (or any party to an action)
       does not mean that a fair-minded and informed observer
       would think the judge was biased."
           And your Lordship will have seen our treatment of
       the Ablyazov decision in the skeleton, and the point
       about the Ablyazov decision was the prior consideration
       by the court in that case of matters going directly to
       credibility in the context of contempt.
   MR JUSTICE FRASER:  Mr Justice Teare sentenced Mr Ablyazov
       to 22 months, I think.
   MR GREEN:  Precisely, and you could not get a more extreme
       context for the Ablyazov decision than that.  And if
       I could take your Lordship to Ablyazov for a moment,
       please, which is at {B9.5/21/27}.
   MR JUSTICE FRASER:  Are we going away from Otkritie or are
       we coming back?
   MR GREEN:  I was going to come back to that in a minute, if
       I may.
   MR JUSTICE FRASER:  Where is Ablyazov?
   MR GREEN:  It is hard copy tab 22.
   MR JUSTICE FRASER:  Okay.
   MR GREEN:  {B9.5/21/27}.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  This is in the context of -- perhaps we can start
       on page 25 just go back to the discussion on apparent
       bias and where it begins.
   MR JUSTICE FRASER:  Page 25.
   MR GREEN:  Page 25 at paragraph 65 {B9.5/21/25}.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  At the foot of that page, your Lordship will see:
           "Although the principles of apparent bias are now
       well-established and have not been in dispute in this
       case, the application of them is wholly fact-sensitive."
           So the submission I made earlier about context is
       underpinned throughout the authorities.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  At 66, just above 66, there is a qualification to
       the normal rule that findings against a party won't be
       a ground for a bias in a future trial.  It says here:
           "A case for recusal may always arise, however, where
       a judge has previously expressed himself in vituperative
       or intemperate terms.  That however, has not been
       alleged in this case."
           And just above that your Lordship will see --
   MR JUSTICE FRASER:  It is alleged in the instant
       application, though.
   MR GREEN:  Not quite in those words, but critical invective.
   MR JUSTICE FRASER:  It's critical invective.  I interpreted
       that as meaning nonjudicial language.
   MR GREEN:  Indeed.
           And just above, your Lordship will note just below
       D:
           "Fifthly no example of a designated judge being
       required to recuse himself or herself has been found."
           That is in the context of a designated judge in the
       Commercial Court, we say a fortiori the case of
       a managing judge in group litigation, and that is
       relevant context and it goes to that fourth point on
       context by way of background that I identified in
       opening.
           At 68 the court is looking at {B9.5.21/27} where
       a judge has heard pre-trial evidence and may have come
       to conclusions.
   MR JUSTICE FRASER:  Where are we looking now?
   MR GREEN:  On page 27, paragraph 68:
           "Special considerations may arise in such cases.
       Where a judge has had to form and express a view as to
       the credibility of a party or an important witness as
       a result of such cross-examination, should that require
       the recusal of that judge from further involvement in
       the litigation, even where he does so, as in this case,
       in moderate terms?  Committal applications have to be
       judged on the criminal standard of proof, so that, where
       such an application has resulted in a finding of
       contempt of court, the judge has applied a standard of
       proof higher than that of a civil trial.
           "On the other hand, in any event, the findings of
       the judge are part of the res gestae of the proceedings.
       They are, as it were, writings on the wall and would
       need to be considered (subject to appeal of course), for
       any relevance in any subsequent proceedings and at trial
       by the same judge or by any other judge.  They may not
       even be appealed or, as in this case, this may be
       appealed and upheld so that in either event, it is not
       possible to say that the judge was in error.  In this
       connection, certain findings might give rise to issue
       estoppels, which would not only have to be taken into
       consideration by any judge at trial but would be binding
       on him, as Mr Béar accepts.  What then is the difference
       between the judge who bears in mind his own findings and
       observations and another judge who reads what the first
       judge has written, as he must be entitled to do?
       Mr Béar submits that in the case of the first judge who
       has heard and written, the impact of what he has learned
       is more direct, immediate and powerful, and is that the
       critical distinction.  However, it seems to me that,
       unless the first judge has shown by some judicial error,
       such as the use of intemperate, let me say unjudicial,
       language, or some misjudgment, might set up a complaint
       of the appearance of bias, the fair-minded and informed
       observer is unlikely to think that the first judge is in
       any different position from the second judge - other
       than he is more experienced in the litigation."
           My Lord, this is quite important, because we learned
       this morning from Lord Grabiner that the Post Office's
       position is again one of these very nuanced positions in
       relation to what the consequence of the application --
       of your Lordship acceding to the recusal application
       would be, and it is a surprising and difficult
       proposition, because the entire premise of the
       application, the thread which runs through all three
       categories, is irrelevant material to which
       your Lordship has wrongly had regard in the judgment.
       Then that is deployed for different purposes.
           But what is said is that, even though the
       paragraphs, the two parts of paragraph 25 in Mr Parsons'
       14th witness statement which deal with the second and
       third categories, specifically say that there is an
       appearance that your Lordship has not acted impartially
       in the past in the Common Issues judgment, it is said
       that that is not going to mean that the Common Issues
       judgment has to be undone on that footing.
           Now, in reality, I think that is an extremely
       difficult submission to mount, because what is -- is it
       truly the Post Office's position that when they seek to
       appeal, as they have said they will, the Common Issues
       judgment they are not going to trespass on the
       suggestion that your Lordship took into account
       irrelevant evidence?  I doubt that.
           If your Lordship has acceded to the recusal
       application on the footing that you have taken into
       account or addressed irrelevant evidence, why won't they
       be able to say this to the Court of Appeal?
           So it is a difficult position for them to adopt.
   MR JUSTICE FRASER:  Well, the position vis-a-vis judgment
       number 3 and its future life depends on an application
       for permission to appeal being made at some point,
       permission either being granted and an appeal happening
       or permission not being granted either by me or the
       Court of Appeal, and we have not reached that point yet.
   MR GREEN:  No, my Lord, we haven't, but what your Lordship
       was told immediately when my learned friend
       Lord Grabiner rose to his feet was to put the court at
       ease that acceding to the recusal application would not
       mean that the Common Issues trial had to be re-run.
   MR JUSTICE FRASER:  In a sense, what happens to the
       Common Issues trial has nothing to do with me.
   MR GREEN:  My Lord --
   MR JUSTICE FRASER:  So far as judgment number 3 is
       concerned, the only order still available that any party
       could ask me for is permission to appeal that judgment.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  The order that reflected it has been
       sealed.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  So retrial, correction on appeal, any of
       those points are nothing to do with me, are they?
   MR GREEN:  Let's approach it on that basis.
   MR JUSTICE FRASER:  Just in terms of jurisdiction --
   MR GREEN:  Jurisdictionally, that is right.
   MR JUSTICE FRASER:  It is a judgment that has been handed
       down in final form and has been sealed.
   MR GREEN:  I think there was a sort of reassuring,
       authoritative suggestion to your Lordship that you
       needn't worry too much if you do accede to this because
       it will all be all right.
   MR JUSTICE FRASER:  I didn't interpret it in those terms.
   MR GREEN:  I wrongly did, so I needn't address your Lordship
       further on it --
   MR JUSTICE FRASER:  As far as I am concerned, I am pretty
       clear that this is what the Post Office is submitting,
       but if it is not, then Lord Grabiner will correct me at
       the reply stage.  This application concerns two parts of
       the litigation, the extant Horizon trial --
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  -- he has been very clear about that
       indeed, and it is a point that I made myself nearly two
       weeks ago, because although it says adjourn, it really
       means a backstop and restart in front of someone else.
       And the other is my role as managing judge in the group
       litigation.  Those are the two heads.
   MR GREEN:  My Lord, they are.
   MR JUSTICE FRASER:  Whatever concomitant effect there might
       be on judgment number 3 is gloriously off-stage, isn't
       it?
   MR GREEN:  My Lord, I'll move on.  Shall we leave it
       gloriously off-stage?  I think I made the submission to
       your Lordship that in effect there is a collateral
       attack on the Common Issues judgment number 3 because
       what is being said is that your Lordship had regard to
       irrelevant matters and didn't behave impartially in
       drafting that judgment.
   MR JUSTICE FRASER:  I am not sure the second of those two
       points is necessarily correct, but let's put it to one
       side because it is not part of this application.
   MR GREEN:  I will just press on with the primary submission,
       which is simply this: that the authorities effectively
       sing with one voice at the highest level of authority
       that the litmus test really is whether what the first
       judge does he does is part and parcel of his judicial
       assessment of the litigation before him.
           And that is in Ablyazov at paragraph 70, as
       your Lordship will probably know {B9.5/21/27}.  What
       Lord Justice Rix says there is:
           "In this connection, it seems to me that the
       critical consideration is that what the first judge does
       he does is part and parcel of his judicial assessment of
       the litigation before him.  He is not prejudging by
       reference to extraneous matters or predilections or
       preferences.  He is not even bringing to this litigation
       matters from another case [et cetera and so forth].  He
       is judging the matter before him, as he is required by
       his office to do, and if he does so fairly and
       judicially, I do not see that the fair-minded and
       informed observer would consider there was any
       possibility of bias."
           And, my Lord, I only mention in passing that in the
       next tab in the bundle we have got O'Neill, number 2,
       And at page 23 of that {B9.5/22/23}, paragraph 51, that
       passage, although in the context of a criminal case that
       the Supreme Court was dealing with there, that passage
       is cited with approval as applicable not just to civil
       cases and criminal cases.
           And that begs the question, my Lord, well, what is
       your Lordship duty-bound to do?  There is a ready answer
       in the bundle at tab 29, in the Harb case, which is at
       {B9.5/28/1}.
   MR JUSTICE FRASER:  Which paragraph?
   MR GREEN:  If we look first of all at paragraph 28 on
       page 8.
   MR JUSTICE FRASER:  Paragraph?
   MR GREEN:  28 on page {B9/5/28/8} of the report, this is my
       learned friend making submissions in that case, and:
           "Lord Grabiner submits that in the light of
       Mrs Harb's evidence the doubt expressed by the judge was
       fully justified."
           This is where the judge in the end accepted
       Mrs Harb's evidence in circumstances where the basis for
       doing so was hotly disputed, and I will come in a little
       more detail to why in a moment:
           "But despite that, he had failed to explain what had
       given rise to the doubt or what had enabled him to
       overcome it.  Lord Grabiner has identified several
       aspects of both her evidence and that of
       Mrs Mustafa-Hasan which he submits called for careful
       consideration, but which had not been identified or
       discussed in the judgment.  In his submission, the judge
       failed to analyse the evidence properly.  He had
       accepted the evidence of Mrs Harb and Mrs Mustafa-Hasan
       uncritically and as a result had reached conclusions
       which were unsustainable on the totality of the evidence
       before him.  It is necessary, therefore, to examine more
       closely the criticisms made of their evidence."
           Now, pausing there, your Lordship will remember
       possibly the most hard-edged submission that my learned
       friend Lord Grabiner made to your Lordship was in
       relation to speculations that evidence that some of the
       Post Office's witnesses were giving was not necessarily
       their own.  And a number of passages --
   MR JUSTICE FRASER:  That was on the contents of witness
       statements.
   MR GREEN:  Precisely, that what was in their witness
       statements was not originally theirs.
   MR JUSTICE FRASER:  There was an extensive survey on the
       contents of witness statements in the commercial and
       business and property courts about a year ago which
       received nearly a thousand responses.  One of the
       specific questions in it dealt with solicitors providing
       material for a witness statement that wasn't in the
       witness' own words.  It was one of the questions.
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  And it was circulated every specialist
       Bar Association and the London Litigation Solicitors
       Association and widely advertised in magazines such as
       Counsel.
   MR GREEN:  I was only going to -- I wasn't going to refer to
       that survey particularly.
   MR JUSTICE FRASER:  That is in the public domain.
   MR GREEN:  Completely, and it is a point frequently made and
       thought about carefully since witness statements were
       introduced, because when I started and certainly when my
       noble and my learned friend Lord Grabiner started, we
       didn't have them.  You rocked up in court, the witness
       stood up and you found out what they said and then you
       cross-examined them without knowing what they were going
       to say.
   MR JUSTICE FRASER:  I am not sure "rocking up" is right.
   MR GREEN:  I might have put that a bit lightly.
   MR JUSTICE FRASER:  You might have rocked up.  I am not sure
       that is the correct way of putting it, in all
       seriousness.  Evidence-in-chief was given orally.
   MR GREEN:  Yes, evidence-in-chief was given orally.  What
       I was trying to convey, albeit rather slightly clumsily,
       was you didn't pore over somebody's evidence for weeks
       in advance of arriving at court and listening to what
       they were going to say.  So the observations that my
       learned friend took your Lordship to about the contents
       of the Post Office witness statements were directed to
       your Lordship's judicial consideration of whether or not
       that evidence was actually properly theirs.
           And if we go over the page on to page 10 --
   MR JUSTICE FRASER:  Of?
   MR GREEN:  Harb, if we continue over the page {B9.5/28/10},
       it says:
           "Lord Grabiner has identified nine examples of what
       he says was Mrs Harb's evasiveness or lack of
       credibility."
           And there are various examples.  At the foot of
       subparagraph (iii):
           "When questioned about that, her replies were
       rambling and confused and appeared to portray an
       unwillingness to deal with the question.
           "(iv) When asked by the judge why she had chosen to
       omit that matter or any reference to the present
       proceedings (but little else), she could provide no
       satisfactory explanation and resorted to little more
       than bluster."
           And then at (v) over the page {B9.5/28/11},
       your Lordship may think significantly, given the
       submission being made to your Lordship about
       your Lordship's approach:
           "There were occasions when Mrs Harb professed to
       being unable to remember matters set out in her witness
       statement, giving rise to doubt whether the statement
       contained her true recollection of events."
           Pausing there, these are all criticisms leveled at
       the court for failing properly to make the necessary
       judicial assessment of the matters before it.
           So we respectfully say not only were your Lordship's
       observations available to you, but the analysis which
       underpinned them was actually necessary on the approach
       urged upon the court by my learned friend in this case.
           At paragraph 34 on {B9.5/28/12}:
           "In our view the judge's approach to the evidence
       was unsatisfactory in a number of significant respects.
       First, he failed to identify in sufficient detail the
       questions that needed to be answered if he were to
       decide whether an agreement of the kind alleged by
       Mrs Harb had been made.  In addition, he failed to carry
       out a proper evaluation of all the evidence in order to
       test its strengths and weaknesses.  Having referred in
       paragraph 80 to the fact that counsel for the Prince had
       made extensive criticisms of Mrs Harb's evidence on the
       grounds that it was inconsistent with her witness
       statement, he failed to deal with any of those
       criticisms and brushed them aside by saying that it was
       unrealistic to expect Mrs Harb to have a clear
       recollection of events 13 years after the event."
           It goes on to say at the bottom of that paragraph.
           "It also fails to deal with the criticisms of the
       quality of her evidence and the way in which she
       responded to questions."
           Now, pausing there, so the criticisms that were made
       were accepted by the court as proper criticisms and that
       the judge had actually erred in failing to carry out the
       necessary evaluation of all of that evidence.  So,
       my Lord, that illustrates -- I don't say completely or
       exhaustively -- the nature of the judicial assessment
       which it was your Lordship's duty to undertake of the
       case actually presented before you.
           And that we get both from the underlying
       observations by Lord Justice Rix, but also the
       repetition of that and the approval of it at
       paragraph 51 of O'Neill that I have already shown
       your Lordship.
           So the right approach to this is to look at the
       context, to look carefully at the way in which the
       parties' pleaded cases were put before the court, the
       evidence that the parties sought to adduce in support of
       the factual assertions that they had identified in their
       pleaded cases and the basis upon which the case was
       opened and closed by the parties.
           We respectfully say it is quite wrong for
       your Lordship to be criticised for making findings on
       matters which had been put in issue by the parties
       before you unless they could not be relevant to the
       judicial assessment that your Lordship was undertaking.
           We respectfully say there are no findings of that
       sort to be found in the judgment anywhere.
           Is that a convenient moment for a short break,
       my Lord?
   MR JUSTICE FRASER:  I think it probably is.  How are you
       doing in terms of --
   MR GREEN:  I will be done by 4 o'clock, or 5 past 4.
   MR JUSTICE FRASER:  I think Lord Grabiner needs time to come
       back on points of law or other matters.  We will have
       a five minute break for the shorthand writers.  We will
       go from that clock.  It will be 3.22, although I know
       that sounds pedantic.
   (3.17 pm)
                          (Short break)
   (3.23 pm)
   MR GREEN:  My Lord, before we broke a bit earlier on
       I mentioned to your Lordship the right approach to the
       informed observer.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  Could I just show your Lordship the Hashim
       authority at tab 6 in the bundle, which we find at
       {B9.5/6/8}, just below A, the paragraph beginning, "The
       parties to this appeal were agreed":
           "The parties to this appeal were agreed that the
       test to be applied in a case such as this was that
       stated by the QBD in Topping, namely would a reasonable
       and fair-minded person sitting in court and knowing all
       the relevant facts have a reasonable suspicion that
       a fair trial for the applicant was not possible?"
           This was actually mid-trial, but the dictum is of
       general application:
           "Most, if not all, of the cases in which this test
       has been discussed have been cases of modest dimensions.
       We know of no case approaching the scale of this where
       a charge of apparent bias has been made.  That makes it
       the more important to recognise, as we understand to be
       agreed, that the hypothetical observer is not one who
       makes his judgment after a brief visit to the court, but
       one who is familiar with the detailed history of the
       proceedings and the way in which cases of this kind are
       tried."
           So, my Lord, we say it is demonstrably right that
       the informed observer is assumed to know the detail of
       the history of the proceedings and the backdrop and
       context of group litigation and how cases of that type
       are --
   MR JUSTICE FRASER:  I think that passage is quoted in
       Otkritie.
   MR GREEN:  Yes, I think actually it is slightly elaborated
       on, I think, if I remember correctly.
   MR JUSTICE FRASER:  Paragraph?
   MR GREEN:  It is {B9.5/25/1}.
   MR JUSTICE FRASER:  Remind me where it is in the hard
       bundle.
   MR GREEN:  Sorry, it is tab 26.  If we look at page 8
       {B9.5/25/8} --
   MR JUSTICE FRASER:  It is paragraph 18, isn't it?
   MR GREEN:  It is, it is paragraph 18.  There are the two
       observations by the Master of the Rolls, the first one,
       the one we just looked at, and the second one dealing
       with interlocutory applications, which all go one way,
       which is, I think, not actually directly in point here,
       but gives some background to the role of a managing
       judge.
           Was there an aspect of Otkritie that my Lord wanted
       assistance on from earlier, because I said I would come
       back to it, or at least to hear our submissions?
   MR JUSTICE FRASER:  I wouldn't say necessarily assistance
       because it is fairly clear, but at paragraphs 31 and
       32 -- because in that case the judge did recuse himself
       and he was -- it was sent back and he was told he ought
       not to have done.
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  But it was a relevant feature, wasn't
       it, that he, the judge, in that case at first instance
       felt no personal embarrassment or discomfort in
       continuing?
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  I thought he said in his judgment he was
       only recusing himself with extreme reluctance and he
       interpreted the two challenges as being actual bias,
       which doesn't apply here.
   MR GREEN:  Quite.
   MR JUSTICE FRASER:  At 32, I think first instance judges --
       or it is said it is important that they don't recuse
       themselves too readily in long and complex cases.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  I suppose this would count as a long and
       complex case.
   MR GREEN:  Indeed, precisely.  And there is also a point of
       approach in fact in relation to the suggestion that an
       applicant should be given the benefit of the doubt,
       which is one of the submissions that my learned friend
       made.  I think that needs to be thought about quite
       carefully.
   MR JUSTICE FRASER:  He does have authority for that.
   MR GREEN:  Indeed, my Lord, and I think one needs to
       consider quite carefully what is being said, because
       I think where the basis for doubt is properly
       established, then it -- and what is in issue is not
       de minimis, then one can ready see what the court means
       about erring on the side of caution for the proper
       purposes of the administration of justice and justice
       being seen to be done.  One quite understands that, but
       in fact one sees in cases where the court is discussing
       things like having a shareholding, for example, that may
       be small, but more than de minimis.
   MR JUSTICE FRASER:  In a litigant?
   MR GREEN:  In a litigant, something like that.
   MR JUSTICE FRASER:  I see, yes.
   MR GREEN:  Once that is established and it is not absolutely
       de minimis, then even though it may not naturally be
       thought to amount to apparent bias, one might give the
       benefit of the doubt to the applicant in that situation.
           Similarly, if it is established that what a judge
       has done has gone beyond the bounds of proper judicial
       assessment, that it is not part and parcel of the
       court's judicial assessment of the litigation as it was
       presented to it.
           As soon as you can say with confidence that the
       court has materially and, one might say more than once
       because of the point about repeatedly that we saw in the
       earlier authority, stepped outside the boundaries of
       a proper judicial assessment of the proceedings as they
       were before the court, then at that point, one then has
       to look at materiality, and say, well, maybe at that
       point the applicant should be given the benefit of the
       doubt.
           But we respectfully submit that the anterior
       question of whether the court has or has not done that
       still falls to be objectively analysed in a sensible
       way.  What you don't get to do is to disapply the
       objective test by a side-wind by complaining about
       things that you lost on or lost on very badly and then
       going, "Well, that must raise a doubt and I should get
       the benefit of the doubt".
           Because if that were the right approach, none of
       these indications to judges not too lightly to recuse
       themselves, either in general or in long-running
       proceedings, we say a fortiori in group litigation, they
       would be meaningless and it would allow an applicant for
       recusal to completely circumvent the carefully
       considered and now really undisputed approach to
       apparent bias.
           So I did want to make that point clear in relation
       to the suggestion of being given the benefit of the
       doubt, my Lord.
           Can I show your Lordship just briefly, in relation
       to the approach to the evidence, paragraph 114 of the
       closing submissions, which are at {A/8/48}.
   MR JUSTICE FRASER:  Whose closing submissions?
   MR GREEN:  This is the Post Office's closing submissions.
       This is the sort of difficulty that I think certainly
       the claimants had with the approach that the Post Office
       adopted, because, of course, obviously some factual
       assertions were in in terms of relevance on the face of
       the pleading.  Then they appeared to be out at the
       admissibility application and then they were in again
       for cross-examination and then out again for some
       purposes in argument, and then in again in the closing
       arguments, in the closing submissions.
           If we look at 114, we can see:
           "It is important to bear in mind the kind of factual
       situation that is encompassed by this principle."
           And this is Post Office relying on the principle of
       a fiduciary's breach of duty has led to an incomplete
       evidential picture and this is Post Office seeking to
       illustrate the point by reference to actual -- its
       version of the evidence that the court heard and putting
       in issue examples of this in the lead claims:
           "For illustration only, Mr Abdulla admitted in
       interview that he had inflated the cash declared in his
       branch to disguise shortfalls."
           That is the Post Office's case:
           "Mrs Stockdale relied on the privilege against
       self-incrimination when asked how she had got her
       accounts to zero despite having shortfalls and without
       making them good or settling centrally, and Mrs Dar had
       the misfortune to engage an assistant who falsified cash
       declarations and seemingly lost or stole large amounts
       of foreign currency."
           And so forth.
           So we go over the page {A/8/49}, then there is
       reliance on the evidence of Mrs Van Den Bogerd about the
       necessarily and reliance by Post Office on honest and
       accurate accounting, Mr Howarth, and then:
           "It is appropriate that the evidential difficulty
       created by false accounting worked to the detriment of
       the dishonest agent."
           So what Post Office sought to do was, in some cases
       absolutely directly, as we had, for example, in the
       closing about issues 8 and 9 and Angela Van Der Bogerd's
       evidence, but in other cases by a sort of side-wind,
       inviting the court to accept criticisms of the lead
       claimants or their evidence as illustrations of
       a problem upon which they relied authority certain
       purposes in their arguments.
           So it was replete with those sort of contradictions
       in the sense that when evidence was helpful for the
       Post Office, it was in, and when their witnesses
       performed badly, that is out.  And your Lordship
       shouldn't really say anything about it because if you
       do, it is frightfully unfair and you have made harsh
       criticisms.  And we respectfully say that in a sense,
       that is what all of this is about.
           They have adopted internally inconsistent positions
       in relation to the relevance of evidence and essentially
       tried to ride two horses going off in completely
       different directions, and your Lordship has had to try
       and manage the consequence of that, and clarify it,
       where possible, on credibility, still leaving an
       extremely unsatisfactory position, make findings in the
       light of the litigation as it was presented before
       court, and then be accused of apparent bias for having
       done so.
           We respectfully suggest that is a flawed basis for
       an application of this sort, having in mind its
       seriousness and gravamen.
           My learned friend wants me to read paragraph 112, so
       we will go back a page and read that {A/8/48}:
           "In considering these factual issues, the court
       should not lose sight of the prior and more important
       point that what happened in practice (including what
       individual C's knew from time to time and what
       Post Office's internal views may have been) are
       irrelevant and inadmissible as to the question of
       whether the contracts exclude or modify the accounting
       principles.  That is a question of contractual
       interpretation."
           Now, pausing there, that illustrates a number of
       points which are unsatisfactory about the way that
       Post Office ran its case.  Again, that is out, but in.
       So we get in, out, in, out, all the way through, even on
       the same page.  But it is also wrong, because what is in
       fact important, as your Lordship has already heard
       argument on this in the admissibility application, it
       wasn't just contractual principles that were in issue,
       there were also questions of agency.
           And the authorities, which we do have in the bundle
       if we need to go to them, make it absolutely clear that
       there may be agency even when the parties by contract
       disclaim that there is.  It's not dependent on
       a contract at all; it is dependent on what, in practice,
       the parties have consented to do for each other.  And
       that was one of key concessions which fed into
       your Lordship's admissibility decision in judgment
       number 2 and it is a factor which complexifies to
       a great degree, we respectfully say an unsatisfactory
       degree, the submissions which Post Office adopted before
       the court in opening, which said that the contract had
       to be construed in the light of the agency relationship,
       because the agency relationship, as Garmac and Branwhite
       both show, is that subsequent evidence of what the
       parties actually do in practice will be relevant, but
       may be less important.
           The question is -- those cases also make clear that
       an express agency set out in a contract is not
       determinative of the scope and nature of the agency that
       in fact exists.  So it is hopeless to say: ah, well, the
       contract said this about the agency.
           The court is required, by completely uncontroversial
       cases that are trite, to look carefully at what in fact
       happened, to look at the nature and scope of the agency
       and the extent to which and how that was operated in
       practice.
           It was in relation to agency accounting principles
       that the branch trading statement loomed so large,
       my Lord, so it is wrong to say that.
   MR JUSTICE FRASER:  Do you have a reference?  You don't have
       to take me to it now, but a reference for the
       Post Office's opening to which you referred then about
       construing the contractual relationship --
   MR GREEN:  Yes, if your Lordship looks at --
   MR JUSTICE FRASER:  -- in the light of the agency
       relationship.
   MR GREEN:  Yes, if your Lordship looks at the Post Office's
       opening at opening submissions at page 8, and the
       opening submissions are {A/2/8}.  I am grateful to
       Ms Donnelly.
   MR JUSTICE FRASER:  A/2/8.  I think that is the wrong A2.
   MR GREEN:  Sorry, A/2/8.  May we just start at {A/2/7} to
       give it context.
   MR JUSTICE FRASER:  It was just to give me a reference, you
       don't have to ...
   MR GREEN:  I will show your Lordship.  I am not going to go
       through all the paragraphs, but 15 to 17 is context
       autonomy and so forth.  17 is reliance on SPMs to
       accurately record and transact and so forth.  And then
       over the page {A/2/8}, the reliance referred to in 18 is
       the reliance is paragraph 17.  We have just seen and it
       provides crucial context.  This is totally consonant
       with their pleaded case, to which I have already
       referred the court.
           Then if we look at their third point at 21:
           "Third and most importantly, SPMs act as
       Post Office's agents when transacting Post Office
       business, with all the ordinary obligation and
       liabilities that agency entails.  Ultimately,
       Post Office cannot and does thought seek to supervise
       and prescribe in detail everything that SPMs do in
       operating the agency business, but the basic fact is
       that SPMs are transacting Post Office business on its
       behalf."
           Then over the page, crucially {A/2/9}:
           "The express and implied terms of the SPMC and the
       NTC need to be viewed through the prism of an expressly
       created agency relationship, and so the express
       contractual terms sit atop the body of the law
       regulating the duties of agents to their principals.
       The common law principles of agency are important
       background to the contracts and any implied terms need
       to be considered (and shown to be necessary) against
       that agency background."
           And then 22:
           "As such, SPMs are obliged to account to Post Office
       as its agent.  They are acting on Post Office's behalf
       and the Post Office relies on them to do so."
           The final line of paragraph 22:
           "This core fact suffuses the contractual
       relationship."
           So your Lordship was being invited to consider the
       nature of the agency in the course of construing and
       determining what the contractual relationship was, so we
       respectfully say that when you do that in accordance
       with the authorities, identifying the nature and scope
       and effect of the agency, it requires you to look at the
       reality on the ground of who was in fact doing what.
           And the evidence I showed you from
       Mrs Van Den Bogerd was not correct in that respect.
       Transactions were not -- the transactions that entered
       the Subpostmaster's account were not in their sole
       control.  The fact there was no dispute button and that
       they had to settle centrally or accept in the way that
       the court heard evidence about, showed that was not
       a proper starting point for the court to understand how
       the branch trading statement came about and to
       understand the evidence in respect of which
       Angela Van Den Bogerd gave and directed those paragraphs
       of her witness statement.
           My Lord, there is a background point.  Your Lordship
       may remember it from the admissibility hearing, which
       was that there is a suggestion that there was not
       sufficient disclosure in relation to some of these
       issues.  Your Lordship may remember it is recorded in
       your Lordship's judgment, in judgment number 2.
       I directed your Lordship's attention to the disclosure
       orders that did address things like helpline, training
       and those things.
           Then the second CMC order, 2 February, 22 February
       and then the third CMC order.  So I am not going to take
       your Lordship to those, but it is wrong to proceed on
       a footing that there had not been disclosure given in
       relation to issues like helpline and those sorts of
       things.
           My Lord, finally, what Post Office, we respectfully
       say, was seeking before the court was a trial at which
       evidence of what happened on the ground, which is
       advanced, if accepted, would be relevant to
       construction, but if rejected and contrary findings
       made, could then be characterised by Post Office as
       relevant to breach and, therefore, your Lordship
       couldn't have regard to them.
           We say that that was a false dichotomy and an
       approach that your Lordship was entitled to meet by just
       making findings on the challenges as made on the
       evidence before the court.
           In fact, there is an irony in that Post Office's
       position was effectively to seek a trial that was
       one-sided, when it didn't get it, to then complain on
       the footing of apparent bias about that and then to
       invite the court effectively to consider the recusal
       application as if the trial had been one-sided, which it
       plainly wasn't.  We respectfully say that is not the
       right approach either.
           My Lord, as to the NFSP, can I just deal with that.
       Much has been made of the significance of the NFSP.
   MR JUSTICE FRASER:  The NFSP are actually mentioned in terms
       within the NTC.
   MR GREEN:  Precisely, they are mentioned in the contract and
       they are mentioned in the opening, and they are
       mentioned in the evidence of two witnesses,
       Mrs Van Den Bogerd and Mr Beal.  And we have dealt with
       this in annex 2 at page 93 onwards, which is
       {B9.4/2/93}.
   MR JUSTICE FRASER:  Paragraph 235, I think.
   MR GREEN:  Exactly.  We have just traced through there.  For
       convenience, the witness statement of Mr Beal at
       paragraph 36, 40 to 41, and emphasising the NFSP's
       independence at 45; the witness statement of
       Mrs Van Den Bogerd at 98:
           "The NFSP has publicly supported Post Office's view
       that Horizon is robust."
           And your Lordship will remember that was supposed to
       play in by way of relevant background to the burden of
       proof in an argument that, I think, was not that easy
       for us to follow about the background likelihood of
       Horizon being robust and, therefore, not being the cause
       of errors.
           And then 235.3, in respect of litigation,
       Post Office's written opening at paragraph 13:
           "Furthermore, it should be noted that the NFSP,
       which is the organisation which represents SPMs and
       their interests nationwide, does not [underlined]
       support this action and does not endorse the factual
       premises of the claims."
           So clearly put in issue.  And then we have got the
       relevant email which was disclosed during the trial,
       with the reference to:
           "Please note a signed agreement with the blood of
       both myself and Paula is necessary on the future of the
       NFSP before any agreement is granted on either NT or
       other points."
           And that is the Post Office's own document, agreed
       it was only disclosed very, very late indeed, but it was
       disclosed and I was able to put that to the witness in
       any event.
           Also, the challenge -- my learned friend is
       essentially looking back at whether Mr Beal was telling
       the truth about the publication of the grant framework
       agreement in re-examination.  And we have got the
       reference to the transcript there at Day 6.
           Then in closing, the assertion about the NFSP not
       supporting the action or endorsing the factual premise
       is repeated.  It is now pitched a little less high:
           "Whatever the organisation's precise degree of
       independence ..."
           Implicitly recognising the NFSP didn't look as
       independent as they had started with saying it was, but
       notwithstanding that qualification, Post Office still
       relied on the involvement of the NFSP as a relevant
       control mechanism for the purpose of its position on
       implied terms, and that is set out, as your Lordship
       sees, at paragraphs 345 to 346, which we have identified
       there.
           So it is quite wrong for the court to be criticised
       in making a proper judicial assessment on the basis of
       the evidence before the court, particularly in
       circumstances where the disclosure was given to us
       extremely late.
           So in result, my Lord, we respectfully say that this
       is an application which is wrongly premised on
       a misunderstanding of the correct approach, does not pay
       due heed to the context, either within the judgment,
       immediate context of the actual text criticised or the
       judgment as a whole, fails to have regard to how the
       proceedings were in fact conducted and relies on the
       court and the claimants now being told at this stage
       that much of the evidence that we were put to the
       trouble of challenging was all irrelevant.  We find that
       out now in a trial that happened last year.
           And furthermore, the application proceeds on
       a misunderstanding of the right approach in cases of
       this sort, we say a fortiori where there is a designated
       judge and a fortiori further where it is a managing
       judge in group litigation.
           For all of those reasons, my Lord, we say this is
       misconceived and without merit.
           Are there any points I can assist my Lord with?
   MR JUSTICE FRASER:  Yes, there is two questions that I would
       like you to address, please, or two points.
           One is the same as a point I asked Lord Grabiner
       about.  The Horizon Issues trial is well underway, and
       there is, I think, half a day of factual evidence left.
       What do you have to say about that?  Were I minded to
       recuse myself, what happens to that?  Does it start
       again in front of somebody else?
   MR GREEN:  I think it might have to start again.  The
       parties might be able to seek to agree whether the
       evidence of particular witnesses was to be taken to be
       their evidence.
   MR JUSTICE FRASER:  Absent an agreement, which, expressing
       myself neutrally, can't necessarily be assumed in this
       trial, all those witnesses would have to be called
       again, wouldn't they?
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  And then the draft judgment number 3,
       which is the focus of today, was distributed to the
       parties on 8 March.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  I don't think this application was
       issued until the 21st.  Have I got those dates correct?
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  And there are different references in
       your skeleton, and the authorities about waiver and
       delay.
   MR GREEN:  Precisely.
   MR JUSTICE FRASER:  Is there anything that you want to say
       about that?
   MR GREEN:  We say it is extremely unsatisfactory that having
       had the draft judgment for that period of time, this was
       not raised with the court before the Horizon Issues
       trial began.
           We are not in a position necessarily to say that
       amounts to a waiver, I don't think.  But, in a sense,
       having had the draft judgment for that period of time,
       it was open to Post Office to tell the court in advance
       of the Horizon trial that it would be making this
       application.
   MR JUSTICE FRASER:  When was the first you learned of the
       application?
   MR GREEN:  My Lord, that day.  I was as surprised as
       your Lordship.  I think I learnt in court just before
       lunch.
   MR JUSTICE FRASER:  Because it was Thursday, the 21st.
   MR GREEN:  It was Thursday, and I was cross-examining
       Mr Godeseth, and I think at some point before lunch,
       I was told this had been done.  I had not seen it and
       then my clerks printed it for us in chambers so I could
       actually see it.  I came with a bundle to court and
       I think your Lordship got it at 5 to 2.
   MR JUSTICE FRASER:  I got it at 5 to 2, but then I was
       sitting dealing with the trial, so ...
   MR GREEN:  The only observation on that is El Faraghy does
       say that the correct approach is initially to write
       a letter to the court to say, you know, "I think the
       court should consider whether it is right that the court
       continues to sit", and that very notably was not done.
       There was an unheralded application at the end of week
       two.
           I think whether that amounts to a waiver or not is
       probably a question for the court.
   MR JUSTICE FRASER:  Yes, all right.
           Okay, the final point, and it might be that I don't
       necessarily need to look at it, but I think the
       strike-out application which led to judgment number 2
       was supported by a witness statement of Mr Parsons,
       which was his 9th.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  Do you have a reference for that?
   MR GREEN:  My Lord, we absolutely do.  I can tell you
       exactly where it is because it is one of things that
       I might have taken your Lordship to.  It is
       {B9.3/0.1/1}.
   MR JUSTICE FRASER:  Then beginning at page 1.
   MR GREEN:  It begins there.  There is a passage there that
       is relevant to one of the objections that my learned
       friend made this morning, which is Mr Parsons' reference
       to adverse publicity, which was the basis for
       your Lordship's observations in the admissibility
       judgment, which we respectfully say your Lordship didn't
       completely forget when you were considering matters in
       the Common Issues judgment.
   MR JUSTICE FRASER:  The only reason for asking for the
       reference is in case I decide to read that again, but
       you wouldn't discourage me from reading it again.
   MR GREEN:  Absolutely not, my Lord.  And in fact, there is
       an additional point to make on that, which is that we
       faced precisely the same approach from Post Office in
       relation to that application as we did to this.
   MR JUSTICE FRASER:  By "that application", you mean?
   MR GREEN:  The strike-out application, which is a serious
       application, especially the timing of it when we were
       trying to prepare for trial.
           There were no particulars given of the parts of
       evidence that were said to be objectionable, so I think
       it was 5 September and I think my learned friend
       Mr Warwick attended in order to obtain from the court
       a direction, which the court gave in an order, that they
       provided particulars.
           So we have had the same modus operandi on two fairly
       serious matters, and I leave the matter there, my Lord.
   MR JUSTICE FRASER:  All right.  Unless there is anything
       that you want to add.
   MR GREEN:  My Lord, no.
   MR JUSTICE FRASER:  Thank you very much.
           Lord Grabiner, just on that point, so I don't
       disrupt the flow, I assume you don't have any objection
       to me looking at the 9th witness statement of Mr Parsons
       again in due course.
   LORD GRABINER:  Certainly not, I am only too pleased if
       your Lordship looks back at whatever you want to look
       at.
   MR JUSTICE FRASER:  Thank you very much.
   (3.55 pm)
                Reply submissions by LORD GRABINER
   LORD GRABINER:  Can I deal with the point raised at the end
       in relation to the delay point, if I can call it the
       delay point.  My understanding is that we received the
       draft judgment on the Friday immediately prior to
       commencement of the Horizon trial on the Monday.
           I am afraid, standing here now, I don't know what
       the dates are.
   MR JUSTICE FRASER:  It is the 8th.  It was sent out on
       Friday, the 8th.  Monday, the 11th, was oral openings.
   LORD GRABINER:  There was a passage of time between then and
       the decision that was communicated to make this
       application.  I need hardly point out that this has
       been -- this is regarded as an extremely serious
       application to be making.  It was made at board level
       within the client and it also involved the need for me
       to be got up to speed from a standing start.
           And I am not the only judicial figure or barrister
       that has looked at this with a view to reaching that
       conclusion.  It has also been looked at by another very
       senior person before the decision was taken to make this
       application.
           The delay, such as it is, is very, very tiny in the
       context of the seriousness of case that is being put
       forward.
           We had no control over the commencement of the
       Horizon case, obviously, because that was already
       predetermined by the arrangements that were then in
       place.
   MR JUSTICE FRASER:  I suppose one might observe an
       adjournment could have been requested of a week or
       something.
   LORD GRABINER:  It may be.  I just don't know because
       I wasn't involved at that stage.  I have only been
       involved just for a few days, literally.
   MR JUSTICE FRASER:  Understood.
   LORD GRABINER:  The other point that my learned friend made
       right at the end, but if I can deal with it now, is in
       relation to the El Faraghy case, which he said: well, it
       would have been much more appropriate for us to have
       communicated by letter with the court rather than to do
       what we did.  You will find that case, I think, in
       tab 15.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  Your Lordship may remember this one.  This
       is a postscript of Lord Justice Ward, paragraph 32, the
       very last paragraph of the judgment.  Does your Lordship
       have that?
   MR JUSTICE FRASER:  Yes, the one that says recusal
       applications are much more frequent than they used to
       be.
   LORD GRABINER:  Yes, and he says:
           "It is invidious for a judge to sit in judgment of
       his own conduct in a case like this, but in many cases,
       there will be no option but that the trial judge deal
       with it himself or herself."
           Pausing there, I would obviously rely upon that:
           "If circumstances permit it [and I rely upon that as
       well], I would urge that, first, an informal approach
       should be made to the judge, for example by letter,
       making the complaint and inviting recusal."
           I should say careful consideration was given to
       those observations before the decision was taken to do
       what was done, and one of the --
   MR JUSTICE FRASER:  Issuing the application or asking me to
       hear it?
   LORD GRABINER:  Going first to the court with a letter in
       the form that is described there.  And the decision was
       taken not to adopt that approach simply because
       your Lordship is the designated managing judge of the
       litigation with an enormous knowledge and understanding
       of the whole of the background history, and the idea
       that one could have mounted and dealt with today, as we
       have dealt with today, in front of a different judge is
       a little bit unlikely.
           So there were all those circumstances to take into
       account.  It would also have been open to your Lordship,
       had you been so minded, actually to refer the matter to
       another judge, if you had wished to do so.
           But for all of those and some of those reasons, the
       procedure that we adopted is what we adopted.  But so
       that your Lordship can be under no misunderstanding as
       to how it came about that we are here in the way that we
       are here.  And I do not accept, if it is being
       suggested, that the Lord Justice Ward approach is the
       only approach and that is the one that we should have
       adopted.  I don't accept that, and nor does
       Lord Justice Ward say that.
           So far as my learned friend's submissions are
       concerned, apart from those closing observations, what
       has happened here is that my learned friend has simply
       looked broadly at the judgment and he has taken some of
       the big picture questions, and he has sought to show
       that those areas have been effectively traversed by
       Post Office's evidence and by cross-examination and so
       on.
           Now, in my submission, that approach is wrong for
       two reasons.  First of all, Post Office made clear
       throughout that it did not accept that this material was
       relevant to the Common Issues trial.  That has been said
       more times than I can recall.  As everybody in this
       court knows, that has been repeatedly stated all the way
       through and we have never waived from that position.
           Secondly, the fact that during the trial,
       Post Office felt that it had to deal in a limited way
       with matters which were not relevant to the
       Common Issues does not make those matters relevant to
       the Common Issues and, most importantly, it does not
       enlarge the definition of the Common Issues.
           Whether a given finding was necessary to decide the
       Common Issues is a question which can only be answered
       by reference to the relevant paragraphs of the judgment,
       which is why I painstakingly -- and I apologise for
       having done it -- but I painstakingly went through those
       paragraphs because, in my submission, that is the only
       proper way to analyse the issue and the concern that my
       clients have.
           And the point is that our detailed criticisms have
       really not even been met by the other side.  They never
       went through those paragraphs and, indeed, that is
       unsurprising, because they couldn't.
           For example, if I can just summarise the points on
       the submissions that we have been making, that none of
       the arguments put forward by my learned friends would
       justify findings on a whole range of matters.  And
       I will just rattle off the paragraph numbers and the
       topics without going back to them, because we have
       already been there.
           But, for example, findings on Post Office's
       knowledge of problems with Horizon: paragraphs 541, 543,
       1115.  Whether the Post Office sent threatening letters:
       paragraphs 222, 462, 7231.  Or the general findings as
       to the inadequacy of the suspension processes:
       paragraphs 403, 514, 517.  Or the poor quality of the
       training: paragraphs 193, 437, and 955.
           And, of course, the reason my learned friend did not
       go to the paragraphs was because he would need to
       justify the findings and conclusions to which
       your Lordship arrived, and he knows that he can't.  And
       he knows that he can't because he knows that they go
       well beyond the issues, which is why he simply
       cherrypicked his way through the argument throughout his
       submissions to your Lordship.
           Now, can I just -- I hope in the order in which the
       points were made.  I respectfully agree with an
       observation that fell from your Lordship at the opening
       of my learned friend's submissions when you simply said
       to him that the way to test the validity of the argument
       presented to the court was for the observer to look at
       the judgment only, and in my respectful submission, that
       is exactly the correct approach.  I am not suggesting
       that that person doesn't have full knowledge, they would
       have full knowledge.
   MR JUSTICE FRASER:  Of all the proceedings.
   LORD GRABINER:  Absolutely, and I accept all of that, but at
       the end of the day, what is involved here is the need to
       examine the judgment.  That is what this is all about.
           Now, next, my learned friend drew attention to
       paragraphs 93 and 94 of our generic defence.  And the
       reason for doing that was because he used it as a basis
       for the proposition that thereby my clients had enlarged
       the Common Issues.  And he did that, as I say, through
       reference to those pleadings, but he did not refer
       your Lordship to the voluntarily particulars of
       26 September 2018, which are in -- I don't need to turn
       them up -- {B4/8/1}.
   MR JUSTICE FRASER:  They are also mentioned in judgment
       number 2, I think.
   LORD GRABINER:  I am sure they are, and your Lordship is
       inevitably ahead of me on that, but I am grateful.
           But the point about those voluntary particulars is
       that they confine the matters in 93 and 94 to the
       contract issues, so that doesn't really help my learned
       friend at all.
           Then my learned friend referred to the post-trial
       note, which he put up on to the screen.  That is
       document {A/18/1} and that document exactly states the
       case that I have sought to make today and reflects the
       submissions that I have been making to your Lordship.
           If you look through that, you will see that really
       is a nutshell summary of the arguments that I have been
       seeking to make today to your Lordship.
           Now, the peculiarity of this case -- step back.  One
       of the points that my learned friend came perilously
       close to making was that because this is group
       litigation, the prospects of there being a successful
       complaint along the lines that we make would be just
       about zero because, effectively, a group litigation
       exercise with a judge in charge of the litigation would,
       somehow or other, secure a much broader permit to do and
       say the things that are said and that, somehow or other,
       the apparent bias concept would then fall away as being
       either marginal or unlikely ever to happen.  Indeed, he
       repeatedly made the point that there was no case on the
       point and made some play of that.
           Well, of course, the peculiarity of this case is the
       fact that there are successive trials which have been
       pre-arranged, and the reason why the apparent bias
       argument might never have arisen in any other case, but
       whether it has or not is supremely irrelevant, but the
       reason why it is relevant here is because those
       successive cases are specifically geared to dealing with
       matters such as Horizon, breach of contract, damages and
       all the rest of it, limitation, I think, and so on.
           So it is precisely the kind of context where
       somebody might be getting up to say: well, actually, in
       this kind of context, there is a real danger or real
       possibility that the apparent bias argument may succeed,
       simply because perhaps not enough care has been gone
       into the conclusions.
           And I say that with great respect, because I'm not
       suggesting for a moment that this was a simple case to
       deal with or a simple series of cases to manage.  It is
       a difficult exercise, no doubt about it, and I am
       entirely sympathetic.  But I do respectfully submit that
       given that context, it is very, very important indeed
       that the matters that are made the subject of the first
       judgment do not trespass upon those matters that are yet
       to come.
           That is the reason why this argument, whether or not
       there has been some previous case, is a perfectly good
       argument, and there is no force or validity in the
       proposition that because there is not any history of
       similar cases that, somehow or other, this is an easy
       way in and the judge doesn't have this obligation to
       deal with it.
   MR JUSTICE FRASER:  I think I have made it clear that the
       fact that this may or may not have been the first time
       doesn't make any difference.
   LORD GRABINER:  Of course not.  It was just a bad point from
       my learned friend, which I am sure he understands, and
       it does happen to all of us.
           The other point he made was by reference to his
       paragraph -- 82, it is on page 82 of my learned friend's
       skeleton argument.  It is the quotation of
       paragraph 592, which is taken from our submissions.
       Does your Lordship have that handy?
   MR JUSTICE FRASER:  I do.  Can you just give me the
       paragraph number again?
   LORD GRABINER:  Paragraph 592, but on page 82 of my learned
       friend's skeleton.
   MR JUSTICE FRASER:  Yes, I do have that.
   LORD GRABINER:  The only point I want to make about it is
       that it obviously is referable only to the contract
       terms {B9.4/2/82}:
           "The central fact about Mr Abdulla's evidence cannot
       be avoided: he lied frequently and brazenly.  He began
       by denying that, as his interview records, his previous
       experience included tallying up figures.  He then
       claimed that he read the first and second paragraphs of
       a letter [and that of course is the contract provision]
       and then what appeared on its second page, but missed
       out ..."
           Et cetera, et cetera.  So the point about that
       passage is that it is concerned about the contract
       provision.
   MR JUSTICE FRASER:  That is, Lord Grabiner, but the first
       sentence after the struck through passage says:
           "He said that he was given the impression in the
       interview held following the revelation of his
       wrongdoing that if he paid back the money, he would be
       reinstated; that was untrue."
           So that is a point going purely to the truth of the
       evidence that he gave about post-contractual matters.
   LORD GRABINER:  Yes.
   MR JUSTICE FRASER:  Then the next two sentences follow.
   LORD GRABINER:  I take your Lordship's point, but again, it
       comes back to a point that I sought to make earlier.
       And as I have said, it is not an easy issue, but the
       fact is that it should have been confined to the
       contract issue matters that were in trial 1, and that is
       precisely what that post-trial written document was
       about that I made reference to a few minutes ago.  That
       is precisely what it says.
   MR JUSTICE FRASER:  Understood.
   LORD GRABINER:  Then there is the separate matter which
       I think engaged some discussion between my learned
       friend and your Lordship.  It was in relation to the
       impropriety involved in relation to the witness
       statements.  My learned friend is perfectly correct that
       there were those wonderful days where one stood up in
       court and called the witness and neither the judge nor
       probably often the barristers even knew what was going
       to come out of the witness' mouth.  There was something
       called a proof of evidence then, but you spent most of
       your time striking it through as the witness failed to
       come up to proof.  But all that world, regrettably in
       some ways, has gone by.
           That has given rise to the debate which
       your Lordship referred to, quite rightly, as to the
       usefulness of these documents, first of all because they
       are overlong and, secondly, you know, they make
       references to loads of documents and are replete with
       tonnes of quotes from them.  They are hundreds of pages
       long in any meaningful commercial trial.
           At the end of the day, they may not be actually the
       evidence of the individual.  I completely understand all
       of that, but that does not justify the insertion into
       this judgment of the suggestion that that is what
       happened in this case.  I know it is a nice,
       controversial subject, but it doesn't justify reaching
       a conclusion, expressly or impliedly, that that is what
       happened in this case.
           It is a very serious criticism of professional
       people's behaviour, even more so in this case because my
       understanding is that the suggestion was never even put
       to any witness.  In other words, it was never said to
       a witness, "That is not your evidence, that has been
       concocted for you by your solicitor or, worst still,
       your barrister", as the case may be.
           So, in my submission, it was an entirely
       inappropriate passage or couple of passages actually to
       be inserted into the judgment.
           Harb was interesting, only because I was in the
       case, but it is very difficult to imagine what relevance
       it had to the matters that your Lordship is presented
       with here.
           The key point, in my submission, is that everybody
       knew that there were going to be further trials, and
       that's why enormous care was necessary for the
       production of the first judgment on the basis that it
       might well impact upon key facts or key issues which
       would inevitably arise in the later case.
           On the question of whether or not there was
       disclosure or evidence, my understanding is that there
       has been no disclosure and no evidence or if there has
       been any, it is only of a limited value at the moment
       on, for example, investigations, on accounting by
       individual postmasters, on transaction transactions.  No
       doubt there will be associated witness statements as
       well, because these are matters yet to be determined in
       future trials.
           The only other point that I want to mention, my
       final point, which will be a pleasing word for the
       listeners, is in relation to the National Federation.
       It is true, as I think your Lordship said, that the NFSP
       may have been referred in the contract, but that, with
       great respect, does not justify the conclusions that
       there was some kind of conspiracy going on as between
       the Federation and Post Office.
           It doesn't justify making reference to that in the
       judgment or speculating about the possibility of the
       Federation changing its website in the course of the
       trial.  The fact that there is a reference in the
       contract to the Federation simply means that insofar as
       that is relevant to the contract issues that arose in
       the first trial, that is the extent of it.
           But to go on and make that explicit conclusion about
       the possible bad nature of the relationship between the
       Federation and Post Office is revealing, it is damaging.
       And my submission, my respectful submission, is that it
       might actually and would actually lead an independent
       objective observer to the conclusion that it would be
       very difficult, if not impossible, for your Lordship
       fairly to try these later cases.
           So those are our submissions.
   MR JUSTICE FRASER:  Thank you very much indeed.
   MR GREEN:  Might I make one point of clarification, in case
       my learned friend wants to address it?  It is a very
       small point.
   MR JUSTICE FRASER:  Go on.
   MR GREEN:  It is just the relevance of the group litigation
       point, that one may expect greater judicial interest and
       more judicial concern about the respective parties'
       approach to litigation and observations of that type
       from a managing judge in ongoing litigation than one
       would from a judge trying a unitary claim, and that
       chimes with the sort of thing that I referred
       your Lordship to in the authority.
   MR JUSTICE FRASER:  I will hear what Lord Grabiner has to
       say, and I'm not going to have endless back and forth,
       because Lord Grabiner is entitled to have the right of
       reply.
   MR GREEN:  Of course.
   LORD GRABINER:  If I may respond to that, and I can do it by
       showing your Lordship one paragraph in
       Lord Justice Mummery's judgment in a case called
       AWG Group v Morrison.  It is in {B9.5/11/1}, I think.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  It is at paragraph 29 {B9.5/11/10}.
   MR JUSTICE FRASER:  This was the witness who was known to
       the judge, I think.
   LORD GRABINER:  Yes, I think you are right.
   MR JUSTICE FRASER:  Paragraph 29, yes.
   LORD GRABINER:  My Lord, yes, Lord Justice Mummery.  Does
       your Lordship have that:
           "While I fully understand the judge's concerns about
       the prejudicial affect that his withdrawal from the
       trial would have on the parties and on the
       administration of justice, those concerns are totally
       irrelevant to the crucial question of the real
       possibility of bias and automatic disqualification of
       the judge.  In terms of time, cost and listing, it might
       well be more efficient and convenient to proceed with
       the trial, but efficiency and convenience are not the
       determinative legal values: the paramount concern of the
       legal system is to administer justice, which must be,
       and must be seen by the litigants and fair-minded
       members of the public, to be fair and impartial.
       Anything less is not worth having."
           If my learned friend's submission comes to the
       proposition that because this is group litigation, the
       court has, so to speak, free range, although I am sure
       he wouldn't put it that widely, but the court has more
       flexibility to circumvent the problem that I am
       concerned with, then he is absolutely wrong, and the
       correct approach is summarised there by
       Lord Justice Mummery and your Lordship should bear that
       in mind.
           I am grateful to my friend for reminding me of that
       passage.  My Lord, those are my submissions.
   MR JUSTICE FRASER:  Thank you very much indeed.  Bear with
       me one second.
           This is an application that I recuse myself both
       from being the managing judge in group litigation and
       also that I bring the Horizon Issues trial, which is
       currently underway, to an end.  The application is made
       in the midst of the Horizon Issues trial, which started
       on 11 March.
           I am acutely conscious that parties need a rapid
       answer when applications are made in the course of an
       ongoing trial, but I am going to reserve my judgment on
       this application.  I am going to produce a written
       reserved judgment, which will be judgment number 4.
           I will endeavour to produce that written judgment as
       soon as possible.  It's highly unlikely to be this week,
       so I am going to explain to the parties now that
       judgment number 4 will not be handed down before
       Tuesday, 9 April, which is next Tuesday at 2.00 pm.  But
       the parties will be notified by my clerk on Monday,
       8 April either confirming that time, either of
       a different time on that day or a different date and
       time, if that date is not going to be achievable.  So
       there will be an update provided on Monday.
           Depending upon the outcome, different matters will
       need to be dealt with.  That obviously depends whether
       I recuse myself or not.  I am not going to go into what
       those other matters might be, but they can be dealt with
       on the day that the judgment is handed down.
           Thank you all very much for your attention.  Thank
       you for your helpful submissions, to all the counsel
       involved, and also thank you to the electronic trial
       bundle provider for re-activating my access to the
       electronic trial bundle.
           Anything necessary?
   LORD GRABINER:  Just to thank your Lordship for dealing with
       it in this way.
   MR JUSTICE FRASER:  Pleasure.  So until an indeterminate
       date and time, but hopefully the first part of next
       week.
   (4.20 pm)
           (The hearing was adjourned until a date to be fixed)