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)
