Tuesday, April 9, 2019

Bates v Post Office: Recusal judgment


People will be talking about this case in decades to come, and not just in legal circles. Already we've had revelation after revelation about the Post Office's behaviour towards its Subpostmasters, MPs and the concept of justice ("the Post Office seemed to want findings on that only if they were in the Post Office’s favour." J Fraser - 3rd judgment)

On Tuesday 9 April at 2pm in court 26 of the Rolls Building we got the judge's perspective on the Post Office's attempt to have him recuse (sack) himself on grounds of apparent bias. He has declined to do so.

The application was received in the middle of the second trial of the group litigation and was an application made in the light of the judgment of the first trial, which the Post Office lost hands down. You can read my bluffer's guide to that judgment here.

The judgment of the first trial is known as Judgment No. 3 because there were two preliminary judgments on process (which the Post Office also lost) before the first trial started.

The recusal judgment is therefore Judgment No. 4, the fourth the Post Office has lost.

In a 44,500 word, detail-rich document J Fraser deals with every angle of the recusal application and its context. You can read it here. What follows in this blog post is a summary of interest to the casual reader and a write-up of the discussion which took place in court immediately after the judgment was handed down, in which we discovered both parties had blown half a million quid preparing and responding to the recusal application: "jam and cream on top" noted Lord Grabiner in court. The transcript of that hearing can be found here.

Let's deal with the judgment first.

Key quotes

"The fair-minded and informed observer would consider all the relevant facts. I consider that the Post Office in this recusal application overlooks a significant number of material facts, and instead, concentrates upon isolated passages and takes them out of context."

"In many places in Judgment No.3... I made it clear expressly that I was not making any findings as to breach, causation or loss, nor was I making any findings on the Horizon Issues... I consider those points – or rather, the same point, made multiple times – are entirely clear and unambiguous. Lord Grabiner was rather dismissive of this. He referred to this as a "mantra"..."

[see my write-up of the recusal application hearing in which the "mantra" concept is fleshed out]

"I do not accept that submission. It suggests some remarkably convoluted thinking on the part of the court, including an awareness in advance that an application to recuse for apparent bias might be made, and a conscious attempt to head that off, but doing so in terms which "would not convince the observer" that I had not prejudged the issues, in respect of which I was expressly stating that I was not making findings. It also suggests convoluted thinking on the part of the fair-minded observer."

"I intend to continue with the Horizon Issues trial, and I intend to continue as the Managing Judge. I am confident that I can resolve all the existing and future issues in this litigation in a wholly impartial and judicial manner."

Juicy detail

The recusal application judgment is long, as the judge himself notes. Its length is partly due to the Post Office relying on 109 separate paragraphs in the 180,000 word common issues trial judgment as evidence of apparent bias. The judge deals with each one in turn, and finds that none of them show any indication of apparent bias. To give you just one example, the Post Office alleges apparent bias in the judge's description of the first day of on-site Horizon training for Subpostmasters as "worthless".

The judge responds:

"The word "worthless" for "day one" training is expressly used in the actual internal Post Office document put to Mr Webb... I... do not understand how reproducing the same word used in the Post Office's own internal document can be relied upon by the Post Office in this recusal application. This is an example of the pitfall of considering a single passage of Judgment No.3, deciding it is critical of the Post Office, and using it to justify a recusal application, without taking into account either its context, or the evidence that unfolded in the Common Issues trial. The fair-minded and informed observer would be assumed to be precisely that – informed."

Give us a waiver

Having responded to every point made by the Post Office, the judge then turns his attention to the timing of the recusal application, which as avid followers of this case will know, arrived on a day of high drama (see my write-up: "Going Postal") in the middle of the second trial in this Bates v Post Office litigation.

I was in court to witness what happened that day and there were people who had spent many years of their careers working in the legal system who were literally shaking their heads in disbelief when the day's proceedings had finished. As J Fraser himself says in his judgment: "Recusal applications, particularly made in the middle of lengthy trials, are not entirely routine. They ought not to be kept up one's sleeve."

What I did not know was that the judge has a perfect right to take the timing of a recusal application into account.

To give you a brief chronology:

8 March - both parties receive common issues trial judgment in draft
11 March - Horizon trial starts
15 March - common issues judgment formally handed down
21 March - recusal application received in court

The surprise element of the recusal application and its delay in being presented to the court is lambasted by the judge:

"the Post Office waited until almost two weeks after it had received Judgment No.3 before it did anything in respect of making an application to recuse.... Here, there was not only silence by the Post Office, and continuing participation in proceedings, but there was active involvement in the actual Horizon Issues trial."

"Rather than acting quickly and promptly, the Post Office delayed, and... acted somewhat curiously. When I asked Mr de Garr Robinson QC about the application at 2.00pm on the day it was issued, he did not know very much about it."

On the written application: "this delay is not explained, in even the most cursory or terse terms... It is entirely ignored. I do not consider recusal applications to be entirely run of the mill events. This is even more so when one considers this recusal application is of a Managing Judge in Group Litigation. It is also even more so when it is made in the very middle of a lengthy trial. An explanation is called for."

The judge says what should have happened is that on the morning the Horizon trial was due to start, a request for an adjournment should have been made.

"The Post Office conducted itself for the whole of the factual evidence that was called during the first two weeks of the Horizon Issues trial (16 different witnesses in total) without any hint of making any application that I recuse myself.... Almost the entirety of the evidence of fact of both parties has already been fully cross-examined in the Horizon Issues trial."

The judge adds:

"It might be thought that the Post Office had taken their chance on how the evidence of fact in the Horizon Issues trial unfolded by waiting until the last day of that evidence before issuing the recusal application."

By acting in such an extraordinary way, the judge decides the Post Office has waived its right to a recusal, and expresses as much in strong terms:

"I have found that there is no apparent bias... However... I consider the delay, and the continued conducting of the Horizon Issues trial, including both the cross-examination of all of the claimants' witnesses of fact, and the calling of almost all of the Post Office's own witnesses of fact, to constitute an unequivocal waiver of any right the Post Office might have had to ask me to abandon the Horizon Issues trial and recuse myself from further involvement as the Managing Judge." [my italics]

There's more

A very interesting side note appears in paragraphs 120 - 122 of the recusal judgment.

The issue of disclosure has been a running sore throughout Bates v Post Office. The judge has commented on the unwillingness of the Post Office to disclose documents, its habit of redacting them and the general tenor of the litigation (from both parties), which has been aggressive, attritional and expensive. The credibility of at least one Post Office witness is in tatters (Angela van den Bogerd, a Post Office director, who was found by the judge to have tried to mislead him on oath), and the Post Office has managed to spend tens of millions of pounds of public money on a litigation it appears to be losing very badly. But the events described below are in a different ballpark altogether.

As part of its preparation for the Horizon trial, the claimants wanted sight of a 2011 Royal Mail/Post Office audit report written by Ernst and Young, which contained statements relating to Horizon and its fitness for purpose.

The Post Office split from Royal Mail in 2012 and the claimants were told that not only did the Post Office no longer have any copies of the 2011 audit report, but Royal Mail, who retained the copies, would not release them to the claimants without a court order.

The precise words of Mr de Garr Robinson (lead counsel for the Post Office in the Horizon trial) were: "last year my instructing solicitors, I think actually Post Office contacted Royal Mail and said "Could we have these documents, they are being requested in these proceedings" and Royal Mail said "We're not going to give them voluntarily, if you want them you will need a court order"."

Hence the reason the matter was being put to the judge by the claimants, in the hope he would order Royal Mail to release the report.

Turns out the whole thing was a load of cobblers. As the judge revealed:

"The Royal Mail had not been asked for these important documents; nor had the Royal Mail been reluctant to produce them without an order from the court.... I had already made an order on 14 March 2019 for a hearing of a third-party disclosure application against the Royal Mail (based on what was said to be the "reluctance" of Royal Mail to produce these documents). This hearing turned out not to be necessary, because once asked for them, the Royal Mail was content to produce them. The reason that they had not been produced prior to that was very simple – the Post Office's solicitors had not asked the Royal Mail for them, even though they had told Freeths, and had also told the court (through their Leading Counsel) that they had."

This might not have been deliberate. It could, of course, just be incompetence. The Post Office QC called it "confusion".

Post-judgment hearing

It's a shame silence doesn't transcribe.

There is a moment, after a discussion about costs, in which Lord Grabiner makes the case for appealing J Fraser's judgment.

LORD GRABINER: "In my respectful submission, this is a suitable case for permission to be granted to the Court of Appeal. I have to demonstrate that there is a real prospect of success. In my respectful submission, there is one. And your Lordship is fully familiar with the story, and I do ask for that permission."
MR JUSTICE FRASER:  "Is there anything you would like to add other than real prospects of success? Permission to appeal is refused."

The length of that pause, if there was one, between Mr Justice Fraser's question and his decision not to allow the appeal would have been great to witness. It doesn't quite come across in the same way in print.

Other notes from the hearing:

 - the parties' costs for the whole recusal process total £520,000, most of which will be borne by the taxpayer-owned Post Office.

- the Post Office has until tomorrow (Thursday 11 April) to ask the Court of Appeal for permission to appeal the recusal judgment

- the Horizon trial will briefly re-start tomorrow to hear the final tranche of evidence from the Post Office witnesses before going on a long break. It will resume some time in late May or even June to hear the two weeks worth of expert IT evidence.

Read the full transcript here.

Abusing the use of public money

After the hearing was over, Alan Bates, founder of the Justice for Subpostmasters Alliance (JFSA) reflected on the judgment, saying: “This move by Post Office Ltd to have the judge recused was just another act by an organisation abusing the use of public money to litigate a valid case into the ground in order to protect the reputations of just a few individuals and a dysfunctional business.”

The Post Office said: "We believe the overall litigation remains the best opportunity to resolve long-standing issues in order to ensure a stable and sustainable Post Office network for the benefit of the communities who rely on our services every single day.

"Our relationship with our postmasters, operating more than 11,000 Post Office branches throughout the UK, is of the utmost importance to us and we are continuing with our programme to improve the way we work together with them."

James Hartley from Freeths, which is acting for the JFSA said: “The various procedural twists and turns, which we expect in complex litigation, won’t affect the ultimate outcome, which the Claimants are confident will be in line with the first judgement – namely justice being delivered to the Claimants. We expect PO to appeal on a number of issues and we are ready to deal with that in the Court of Appeal.”

We continue...

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Bates v Post Office: recusal judgment transcript

This is the transcript of the discussion between J Fraser and the Post Office and claimants' barristers which took place in court 26 of the Rolls Building immediately after the judge handed down his decision not to recuse himself from the ongoing Bates v Post Office group litigation.

                                          Tuesday, 9 April 2019
   (2.00 pm)
                             Judgment
   MR JUSTICE FRASER:  This is an application by the
       Post Office to have me recuse myself as the managing
       judge from the litigation and to abort the
       Horizon Issues trial, which started on 11 March.
           I have done a written judgment on the application,
       which my clerk will now provide to the parties.  For the
       reasons included in that written judgment, I am going to
       dismiss the application.
           There are two copies in files for each set of legal
       representatives.
                     (Judgment handed down).
           There are also extra copies in court for members of
       the public, should they wish to have them.  The judgment
       is also going to be put on BAILLI this afternoon, that
       is www.BAILII.org with the neutral citation [2019] EWHC
       871 (QB).  It is also going to be put on the Judicial
       Office website, which is www.judiciary.uk.  If anybody
       would like an emailed copy, if they give their email
       address to my clerk at the conclusion of today's
       hearing, then she will email you a copy this afternoon.
           So the issue arises in terms of any consequential
       applications and directions in respect of resumption of
       the trial.  So would either of you like to say anything?
                           Housekeeping
   MR GREEN:  My Lord, we would obviously have an application
       for costs of the application.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  We did write on the eve of the application to the
       Post Office on a without prejudice case, save as to
       costs basis, to invite them to withdraw their
       application on the basis that we would not, provided we
       heard the following day, make any claim for our costs
       expended up to that point.  That was not an invitation
       which was accepted.
   MR JUSTICE FRASER:  What's the date of that letter?
   MR GREEN:  That was the dated 21 March.
   MR JUSTICE FRASER:  On the day it was issued.
   MR GREEN:  On the day it was issued, that evening.  They had
       obviously had not provided particulars.  They were
       obviously going to have to reconsider that and we
       invited them, in the course of doing so and before we
       had to go through the particulars they then did provide,
       to withdraw the application.
           And on that footing, we'd invite the court to make
       an order for the Post Office to pay the claimant's costs
       on an indemnity basis.  We made them an offer, they
       didn't accept it and we have done better than the offer.
   MR JUSTICE FRASER:  Right, Lord Grabiner.
   LORD GRABINER:  I want to say something about the costs
       first and then -- so first of all, I don't know if your
       Lordship would be proposing to deal with them on an
       assessment basis.
   MR JUSTICE FRASER:  It seems to me there are three issues in
       respect of costs.  First is incident of costs, the
       second is summary assessment or detailed assessment, and
       the third is the basis of assessment.
   LORD GRABINER:  Well, I mean --
   MR JUSTICE FRASER:  I have had schedules from both sides in
       respect of a summary assessment.
   LORD GRABINER:  So I don't know if my friend is pressing for
       a summary assessment today.
   MR GREEN:  My Lord, I would invite your Lordship to consider
       making a summary assessment, but if you were minded not
       to do that, to make an order for a detailed assessment,
       but with a substantial payment on account, which may be
       the easiest way of dealing with the matter.
   LORD GRABINER:  All I want to say about the costs' position
       is really this: that your Lordship has seen their figure
       for the day, which is about £100,000 more than ours.
   MR JUSTICE FRASER:  I think theirs is -- just remind me.
   LORD GRABINER:  314 against 212.
   MR JUSTICE FRASER:  And yours is 212.
   LORD GRABINER:  We had to prepare the application and its
       associated documents.  They merely had to respond.  And
       there is a very short passage of time between 21 March
       and 3 April.  They also appeared by five counsel.  We
       appeared by three.  I wouldn't have thought -- well,
       a matter for your Lordship, what I think is irrelevant,
       but five would be --
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  -- jam and cream on top.
           Moreover, from the sheets that your Lordship has
       been provided with, it would appear that they are
       claiming in respect of four fee-earning solicitors.  We
       are claiming in respect of two.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  They are also claiming in respect of two
       hearings on 21 March and 27 March.  On 21 March, they
       were here in any event.  I think they were already in
       front of you.  And on 27 March, there was what I would
       respectfully suggest was a rather pointless exercise
       when they came across and asked your Lordship to make
       further orders, I think, for disclosure, which I think
       your Lordship rejected.
   MR JUSTICE FRASER:  I think it was for more evidence, but
       I did reject it.
   LORD GRABINER:  But, in my submission, neither of those days
       should figure in the assessment exercise.
   MR JUSTICE FRASER:  Yes.
   LORD GRABINER:  So I am content if your Lordship does it
       either on an assessment detailed basis or on an
       assessment on the day basis, as long as you take account
       of those points that I have been -- just been making.
           And then I also want to make an application for
       permission to appeal, but your Lordship may want to hear
       my friend on the costs point first.
   MR JUSTICE FRASER:  I will deal with costs first and then
       I'll come on to your application.
           What I am minded to do is I am minded to make an
       order for the claimant to have their costs of the
       application, because that is consequential on the event,
       to be subject to a detailed assessment and to leave the
       questions of whether that should be on a standard or an
       indemnity basis and whether or not there should be
       a payment on account to be dealt with on a date to be
       fixed.
   MR GREEN:  I am grateful.
   MR JUSTICE FRASER:  So you will have an order in your favour
       as of today for the costs of the application, and those
       other matters can be swept up and dealt with in due
       course.  I am sure they won't be forgotten.  So that
       deals with the costs.
           I'll deal with your application for permission to
       appeal, Lord Grabiner, now.
   LORD GRABINER:  I would -- I should have objected to the
       indemnity suggestion, but that's academic now in view of
       what your Lordship has just said.  So that can be dealt
       with on another day.
           In my respectful submission, this is a suitable case
       for permission to be granted to the Court of Appeal.
       I have to demonstrate that there is a real prospect of
       success.  In my respectful submission, there is one.
       And your Lordship is fully familiar with the story, and
       I do ask for that permission.
   MR JUSTICE FRASER:  Is there anything you would like to add
       other than real prospects of success?
           Permission to appeal is refused.
           That then takes us on to consequential directions.
       In my judgment, there's -- and I'll just make the
       following observations and then each of you can address
       me on them.
           There is a balance that has to be struck between the
       fact that this is -- this application was made in the
       middle of an ongoing trial on the one hand, with the
       fact that the Post Office has the right to seek
       permission to appeal from the Court of Appeal on the
       other.
           I am, therefore, subject to what each of you have to
       say, minded to approach it in the following way, and
       I'll just tell you what it is in outline terms and you
       can then either persuade me or explain to me that
       I should adopt a different course.
           There's only half a day's evidence of fact left and
       in my judgment, that should be swept up and dealt with
       as soon as possible.  There was, in any case, then going
       to be a delay or an interval before the evidence of the
       experts was going to be heard.  And it seems to me that
       that interval now has to take account of the fact that
       the Post Office will seek or says it will seek
       permission to appeal, and the consequences that go with
       that, so it seems to me, that the experts can't possibly
       be heard until a period some time after the Easter
       vacation ends.  Term starts again on 1 May.
           I am minded to order the Post Office to issue an
       application or issue its application for permission to
       appeal and its appeal within an extremely short
       timeframe, but that still means that there would need to
       be a period of time for the claimants to, if it wishes,
       comply with the Practice Direction to Part 52.
           So that's my outline thinking.  Would either of you
       like to address me on any or all of those points, and in
       whichever order?
           Mr Cavender.
   MR CAVENDER:  My Lord, in my submission, it would be quite
       wrong, in light of where we are, to continue with the
       Horizon trial at all, as a matter of principle.  Your
       Lordship has dismissed the application.  It is a serious
       application for which we have told your Lordship we are
       going to seek permission to appeal.  We will obviously
       do so urgently, and your Lordship has indicated you
       would give us limited time anyway.
           And given the result of that is obviously, by
       definition, outstanding, at least until the permission
       application be heard, in my submission, it would be
       obviously sensible to continue the adjournment or stay
       you have in place.  And to be tempted to hear one or two
       witnesses and go along a little bit because of neatness
       almost is, in my submission, wrong in principle.
           If there is a realistic prospect -- in my
       submission, there must be -- of the Court of Appeal
       reviewing this, then the sensible thing to do is hold
       matters as they are and for the Horizon trial, both,
       that is, the balance of the factual witnesses and the
       expert evidence, to await the outcome of that process,
       whatever it is.
           Obviously if that process comes to an end and
       permission to appeal is refused, then of course one is
       in a different ball game then.  You then have to come
       back to your Lordship for directions to get the thing
       back on track.
           Otherwise, my Lord, the risk is this: if we proceed
       as your tentative suggestion indicates, then you have
       the prospect of an ongoing appeal before the Court of
       Appeal unheard.  You have then very expensive expert
       evidence starting to be heard, which is then potentially
       tainted.  In the event that the trial has to start
       again, you can imagine a situation where one or other
       party decides that the witnesses and the way they've
       gone, et cetera -- it is not beyond the bounds of
       possibility they might want to review that or at least
       the evidence will start to be tested in a way.
           And, in my submission, it is much neater to keep
       that evidence, very expensive, careful evidence, clean
       and neat, to be heard together in a situation where
       there's no risk of it being half-heard and then the
       whole process coming to a halt.  That is a recipe, in my
       submission, for disorder and potentially huge wasted
       costs.
           I mean, at the end of the day, if this trial does go
       on with factual and expert evidence, and then the
       results of that are going to be overturned by a recusal
       application, that surely must also fit into the balance
       of the overriding objective and how sensibly to deal
       with this.
           So for all those reasons, my Lord, in my submission,
       the sensible thing to do at this stage is to -- for us
       to apply for permission to appeal, see how that goes.
       If that is unsuccessful, then the results are pretty
       clear.  If it is successful, in my submission, the
       results are equally clear and it would be quite wrong in
       principle to continue with this trial.
   MR JUSTICE FRASER:  If the results are as the Post Office
       contends, any consequential activity as a result of that
       is going to be dictated by the terms of their order, it
       is not going to be up to me.
   MR CAVENDER:  Sorry, your Lordship lost me.
   MR JUSTICE FRASER:  You were explaining the -- you said you
       were dealing with the different contingencies on your
       application for permission to appeal.  One was if it was
       unsuccessful, then the results are pretty clear.  If it
       was successful and you were given permission, then there
       would obviously be directions given by the Court of
       Appeal in respect of that, wouldn't there?
   MR CAVENDER:  There would, but one of them might be to stop
       the trial that may then be ongoing.
   MR JUSTICE FRASER:  I understand that.
   MR CAVENDER:  So the fact that is a possibility would lead,
       in my submission, to the thinking: why would we put
       ourselves in that position with all the wasted costs and
       difficulty that may cause?  In my submission, there is
       no good reason to do that, unless my learned friends can
       give you one, and a number of reasons I have given you
       why that would be a bad idea.
   MR JUSTICE FRASER:  Understood.
   MR CAVENDER:  So those are my submissions.
   MR JUSTICE FRASER:  All right.
           Mr Green.
   MR GREEN:  Your Lordship appreciates we wouldn't have
       started here as claimants.  Given where we are,
       I wouldn't disagree with my learned friend that
       actually, we would have no objection to having those
       last two fact witnesses just before the experts.
   MR JUSTICE FRASER:  There is a period imposed though for
       there to be a gap between the fact and the expert
       witnesses.
   MR GREEN:  My Lord, yes.  What I am suggesting is that we
       might -- that was on the premise that we would be able
       to consider the fact evidence.
   MR JUSTICE FRASER:  One of them is a potentially important
       technical witness from Fujitsu --
   MR GREEN:  My Lord, that's right.
   MR JUSTICE FRASER:  -- whose evidence will need -- well, may
       need to be taken into account by the experts before they
       give their evidence.
   MR GREEN:  What we wondered was whether it might be possible
       for the court to accommodate on a Thursday, before we
       resume with the experts in due course, that evidence so
       it is fresh in the court's mind, rather than do it at
       some point next term.  So I think in terms of
       efficiency --
   MR JUSTICE FRASER:  Let me be completely clear with all the
       parties.  The Court of Appeal has been notified of the
       potential of a pending appeal in this matter, which --
       it is not for a first instance judge to dictate to the
       Court of Appeal how they deal with things in terms of
       urgency.
   MR GREEN:  Of course.
   MR JUSTICE FRASER:  But they have been notified that it is
       in the context of an ongoing trial.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  So there is no question that the
       experts' evidence cannot start sensibly this side of
       Easter, for at least three reasons.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  One is Mr Cavender is right, that expert
       evidence ought to be heard together.  Two, there needs
       to be a decent interval so that the Court of Appeal have
       an adequate period of time to consider the question of
       permission.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  And three, there is not enough time to
       deal with the experts this side of Easter anyway.
   MR GREEN:  No.
   MR JUSTICE FRASER:  So expert evidence is effectively
       a preordained issue.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  The question of the last expert -- the
       last witnesses of fact, who were going to be just
       fractionally longer than two hours, is rather different.
       The majority of the evidence of fact has been heard
       already.  The period of time within which the
       Post Office considered and decided that it was going to
       issue this application was being done in parallel with
       the evidence of fact.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  If that's resolved this side of Easter,
       then both the experts know the totality of the evidence
       of fact before they even come to give their evidence,
       which reduces the risk of further delay down the line.
           And thirdly, it is important -- it is not a question
       of neatness.  Mr de Garr Robinson was entirely neutral
       on the afternoon of 21 March whether we continued that
       afternoon and dealt with all the witnesses of fact in
       any event, which is another feature.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  So as far as I'm concerned, the expert
       evidence and the witness evidence don't necessarily fall
       to be considered in the same way.
   MR GREEN:  No, my Lord, no.  The only observation I was
       making was that given that we couldn't do the experts
       now and we might have to await the outcome of at least
       the permission application to the Court of Appeal, and
       we'd have to be coming back later anyway, we would
       certainly have no objection to dealing with the fact,
       that little element of fact evidence we have left,
       shortly before we begin the experts.
   MR JUSTICE FRASER:  You might not, Mr Green.  However, the
       trial's underway.
   MR GREEN:  No, I understand.
   MR JUSTICE FRASER:  My intention is to resume it, taking
       account of the practical issues.
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  And your suggested course of action does
       open the door to risk of further delay, which is that
       the experts say they need longer to consider the
       cross-examination, for example, of Mr Parker because it
       has only just occurred.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  They might, for example, want to have
       a meeting about it.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  So is there anything you would like to
       add to what you've said?
   MR GREEN:  My Lord, not in relation to that.  And obviously,
       we agree.  I discussed it with my learned friend,
       Mr Cavender, and we agree that, for reasons of the
       balance that your Lordship adverted to, it wouldn't be
       wise necessarily to have the experts come back until the
       permission application has been resolved.
   MR JUSTICE FRASER:  Well, there's a solution to that.  Let
       me just check.
           Mr Cavender, is there anything you would like to
       add?
   MR CAVENDER:  Yes, I would like to reply to my learned
       friend's submissions, if I may.  My learned friend and
       I, before we came in, had discussed this and reached
       a joint position that whatever the outcome, that the
       party that lost would seek permission and in that
       situation, it was sensible that the trial generally
       remained stayed, as, in fact, it is.
   MR JUSTICE FRASER:  It is adjourned.
   MR CAVENDER:  Adjourned.  My learned friend at your
       Lordship's instigation is now trying or taking your
       Lordship's suggestion perhaps you deal with it expert
       evidence on the one hand and factual on the other.  But
       both are subject to the same point of principle, that
       there is a real risk that the Court of Appeal will give
       permission and may recuse your Lordship, in which case,
       continuing on with the trial in the face of that
       possibility is, in my submission, wrong in principle.
           As my learned friend says, very sensibly, if
       permission is not granted, then this will need to come
       back in any event.  And as my learned friend also said,
       there is some connection between at least the evidence
       of Mr Parker on technical issues and the experts.  And
       in many ways, that being fresh has many advantages as
       it, you know, being one done before Easter and one
       coming in sort of May or June or some other time.
   MR JUSTICE FRASER:  Well, after Easter is May.
   MR CAVENDER:  Quite, but at the end of the day, the idea of
       restarting the trial just for a little bit of factual
       evidence, in my submission, is -- and I don't shy away
       from the submission -- for the sake of neatness really
       when, in fact, the point of principle is that if there
       is a real possibility, and, in my submission, there is,
       of the Court of Appeal upholding the recusal objection,
       then to go on in the face of that possibility is wrong
       in principle, unless there is some very, very overriding
       benefit that can be identified to counteract it.
           In my submission, your Lordship has come up with one
       potential, which is, well, it may result in further
       delay.  But, in my submission, I am not sure that's
       right.  All one is talking about is, it would seem,
       I think your Lordship said a couple of hours immediately
       before you called the experts.  That, in my
       submission -- if it is a benefit at all, it is a very
       small benefit and when you put that against the
       potential prejudice and waste of costs which may be
       involved in that, in my submission, the answer to that
       balancing exercise is obvious.
           So, my Lord, that's what we say about that.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  My Lord, I should say in fairness that it was our
       view, before we heard your Lordship's proposal, that
       everything would go off together until permission had
       been -- I just want to --
   MR JUSTICE FRASER:  It is not a proposal in the sense that
       I am brokering some sort of three-way agreement.
   MR GREEN:  My Lord, no, but your Lordship invited us --
   MR JUSTICE FRASER:  I thought it was important to give you
       an idea of the -- because obviously, the timetable for
       the resumed trial is something that I have probably been
       thinking about a little bit longer than the parties,
       because I've known the outcome of the recusal
       application for a little bit longer than you two have.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  And I appreciate you all came into court
       not knowing who had won and who hadn't.
           I am going to explain what I am taking into account
       and then I am going to explain what I am going to do.
           It seems to me Mr Cavender's submission that it is
       wrong in principle to finish the evidence of fact
       ignores two fundamental points.  One is that the
       evidence of fact is practically completed.
           The second is the subject matter of Mr Parker's
       evidence.  Mr Parker's evidence goes to remote access to
       branch accounts, which is something that featured very
       heavily in the cross-examination of the other witnesses
       in the Horizon Issues trial before it came to an end and
       in respect of which Mr Parker has had to serve three
       separate witness statements.
           The evidence that emerges on his cross-examination,
       whatever that evidence might be, is undoubtedly
       something that the experts are going to need to
       consider.  They might even want to have a further
       meeting about it.
           I am going to order that the Post Office file its
       appellant's notice by 4 o'clock on Thursday of this
       week.  Taking into account the provisions within the
       Practice Direction to CPR 52, the claimants in any event
       have a 14 day period to provide their observations on an
       application for permission to appeal.
           I am also taking account of the Easter vacation,
       which is effectively two weeks, and the fact that the
       first day of term after Easter is not until 30 April.
           So I am not going to commence the expert evidence
       until 15 May.  That gives the Post Office, should it
       wish, ample time to make representations to the Court of
       Appeal about whether or not that should, in fact,
       commence on that date.  And it should also -- it also
       takes into account a desire not to put unnecessary
       pressure of time on the Court of Appeal.  The time
       estimate for the expert evidence remains as it was
       before, which is effectively two trial weeks or a trial
       week for each of them.
           So far as the evidence of fact is concerned, which
       is about two hours' worth, it seems to me that that has
       to be dealt with as soon as possible.  I am not going to
       order that it happens tomorrow, but the last day of this
       trial -- the period was the Thursday of this week and so
       the Horizon Issues trial will resume with the sole
       purpose of resolving the final two witnesses of fact
       from the Post Office on Thursday of this week, which is
       the 11th, at 10.30.
           Mr Green, you remain restricted to the amount of
       time you would have had and on my analysis, I think
       that's two hours, 15 minutes.
   MR GREEN:  Indeed, my Lord.
           My Lord, your Lordship was saying that the expert
       evidence would not resume before --
   MR JUSTICE FRASER:  Until 15 May.
   MR GREEN:  I am in the Court of Appeal for three days for
       the National Health Service in a long running --
   MR JUSTICE FRASER:  Which day?
   MR GREEN:  -- issue on the 14, 15 and 16 May.
   MR JUSTICE FRASER:  Well, it obviously can't be then.  Given
       this is a part heard trial, then obviously the things
       that take priority over it are Court of Appeal and
       Supreme Court.  So effectively, that week -- so it
       cannot be before the 20th, then.
   MR GREEN:  Indeed.
   MR JUSTICE FRASER:  All right.
   MR GREEN:  There is a slight -- this may be a difficulty
       shared by a number of people, but I'll raise it because
       it is a difficulty I face, which is I am not in the
       country from the 27th.
   MR JUSTICE FRASER:  That is judicial vacation anyway.
   MR GREEN:  Exactly.  So if we were to begin on the 20th for
       a week --
   MR JUSTICE FRASER:  There is one full week this side of the
       judicial vacation and then it would have to resume
       afterwards.
   MR GREEN:  Have to resume afterwards.  My Lord, I don't know
       whether we've all -- whether my learned friend has his
       dates for Court of Appeal and above here.
   MR JUSTICE FRASER:  Mr Cavender is not actually doing the
       Horizon issue.
   MR GREEN:  No, quite, Mr de Garr Robinson.  But my only
       other difficulty is later on in June, which is in the
       Supreme Court.
   MR JUSTICE FRASER:  So far as today's order is concerned, it
       seems to me the sensible thing or the most efficient
       thing to do is to do the following --
   MR GREEN:  My Lord, can I just mention one thing --
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  -- which is, of course, the experts.  I know that
       Mr Coyne is unavailable for a period of three weeks.
   MR JUSTICE FRASER:  Mr Green, if you left me finish.
   MR GREEN:  I am sorry.
   MR JUSTICE FRASER:  You are entirely right, but that was why
       I was going to say the important thing for today is to
       identify, effectively, the following headline points.
           The first is the dismissal of the application, the
       second is the outcome of the application by
       Lord Grabiner for permission to appeal, the third is the
       time and deadline for the Post Office to file its
       appellant's notice and application for permission to
       appeal.  The next point is the costs.  The next point is
       resumption of the Horizon Issues trial, solely for
       dealing with fact, to be on Thursday.
           Then the next point is the resumption of the
       Horizon Issues trial so far as the expert evidence is
       concerned to be on a particular day and then a provision
       within it for further directions, because we have two
       professional witnesses and a number of different
       counsel, and that can all be dealt with when everybody
       has a much clearer picture.  We could even have a case
       management hearing on Thursday afternoon, having heard
       the evidence in the morning.
           But I don't think there's much to be gained by me
       standing here while you go through your diary, and then
       we have other people's diaries which are of equal
       importance, and Mr de Garr Robinson isn't even here.
           Based on the Post Office counsel, who I have
       obviously come to know through the hearing, I think it
       is the Common Issues and recusal team here.  Mr Draper
       is not here and he is Horizon Issues, and I don't think
       any of the other Horizon Issues counsel are here,
       actually.
           Mr Cavender, is there anything you want to add?
   MR CAVENDER:  My Lord, no.
   MR JUSTICE FRASER:  All right.  I'll draw up the order.  If
       junior counsel wait in court, please, I will go to my
       room, draw up the order, my clerk will bring you a copy
       down as soon as possible.
           And, Mr Cavender, one point which I am also going to
       add in the order, or Mr Cavender and Lord Grabiner, is
       I am also going to direct that your appellant's notice
       be accompanied by a letter simply on its face
       identifying that it relates to an ongoing trial, the
       date when I propose to call the remaining evidence of
       fact and my direction in terms of the expert evidence,
       so that whoever is first tasked with looking at it in
       the office can see what the state of play is as of now.
   MR CAVENDER:  My Lord, of course.
   MR JUSTICE FRASER:  And the reason I have given a relatively
       short period of time for you to lodge the appellant's
       notice is obviously this is the last full week of the
       Court of Appeal before the Easter vacation.
   MR CAVENDER:  Indeed.
   MR JUSTICE FRASER:  Anything else?
   MR GREEN:  My Lord, no.
   MR JUSTICE FRASER:  Anything else?  No.  Thank you all very
       much.
   (2.30 pm)
       (The hearing adjourned until a date to be notified)