Tuesday, April 30, 2019

Common Issues trial judgment: Alan Bates and James Hartley interview

Alan Bates outside court on 15 March 2019
If you are a follower of the Post Office Horizon story, you may have noticed Alan Bates, lead claimant in Bates and others v Post Office, and founder of the Justice for Subpostmasters' Alliance, doesn't give very many interviews.

As far as I am aware, until recently, Alan Bates had given just one solitary broadcast interview - to Taro Naw, the now-defunct Welsh-language investigative documentary programme, back in 2009.

This has always been a source of annoyance to me, partly because Mr Bates was a very good interviewee on Taro Naw and would probably have made a valuable contribution to a number of programmes since. I also think had he been more vocal down the years, this would be a bigger story than it is.

Anyway, on 15 March 2019, the day the Common Issues trial judgment came out, Alan Bates did give some media interviews. In fact, he held a press conference outside the High Court's Rolls Building alongside James Hartley, a litigation partner at Freeths, the claimants' solicitors.

There follows a tidied-up transcript of the one-to-one interviews the two men gave me, and at the bottom of this blog post, links to all the media reports that were published on the day. First things first:

Alan Bates - lead claimant and founder, Justice for Subpostmasters' Alliance

"NW: That's a pretty hefty judgment you're holding in your arms there.... your initial reactions and responses to it?

AB: Stunning, absolutely delighted. We couldn't be happier for the whole group. I mean, we've all been working for this for years. But now we're actually there. I'm so pleased with it.

NW: You've been campaigning for what... definitely more than a decade... this is the first time you have been legally vindicated in your campaign. It must be a big moment for you.

AB: It is but it's taken us this long to get here, unfortunately. It's been slowly, slowly, stage by stage, step by step, until we've had enough evidence and managed to find the support of a legal team that would take it to court for us.

NW: I know you haven't had long to go through the judgment. Are there any things that you would particularly pick out as being significant to you?

AB: The culture of secrecy that Post Office has, and how they stonewall everybody, not just ourselves but also the MPs over the years. There's an awful lot of truth in this document in there. And as it comes out over the following weeks, I think people will be shocked to hear what's been going on.

NW: The whole cost of this litigation is being essentially borne on the Post Office side by the taxpayer. It's a taxpayer-owned organization. Why have they been so determined to fight you and shut your claim down?

AB: Because they don't want people to know what's been going on. It's a disorganized organization that's very poorly led and it has been for donkey's years. And all they try and do is cover up their mistakes. They try and keep things hidden from people. And they are absolutely desperate for us [sic] to discuss anything to do with their computer or IT systems.

NW: Paula Vennells [Post Office CEO from 2012 - 2019] has left before the music started, hasn't she? What's your take on her leadership of the Post Office and her exit from the job shortly before this judgment?

AB: I have to wonder, is she gone before she was pushed? But you know, I don't know that but she might just be moving on to bigger and better things. But I mean, I think it's very good for Post Office, she's going at this time and I hope they bring somebody in that actually clears out the house and starts afresh. And we'd be delighted to help any way we can along the way.

NW: Many people will not know what this story is. It's bubbled under for many, many years, occasionally raising its head in the media. But there will be people watching your interview who just have no idea what the claimants have been through. Could you just give us an idea of what some of your fellow claimants have been through?

AB: Well, people have been made bankrupt, they've been driven through the courts, they've finished up in prison. And mainly it's because, at the end of the day, it's due to a contract that's very poorly worded. It's been shown in court that it doesn't have a lot of legs to stand on legally. And it's... being held liable or responsible for losses that they've been generated by a system which they've got very little control over.

NW: So what does today's judgment mean for them?

AB: I think it's a new day for that. It's a new dawning. And I think from here we go from strength to strength.

NW: Is this a turning point?

AB: It is a turning point because we've now actually had something through the courts that the courts agreed with us about what we've done. And we'll just carry on with that as the cases progress.

NW: I realize you can't say much more because this is an ongoing trial, at the moment. This is a long, slow process.... Is it taking it out of you?

AB: Well, it does but you know, it's a full-time job in theory for myself nowadays, and I'm so engrossed with it. And I couldn't put it down even if I wanted to. It's just too many people involved, it affects too many people. And at the end of the day, we will get justice for them all.

NW: There are a subset of the claimants who have criminal convictions against their name, largely due to the way the contracts was enforced. What does today's judgment on the contract mean for them?

AB: I don't know. You'd have to ask the CCRC, the Criminal Cases Review Commission where their cases are now being looked at by them. But I'm absolutely certain that the CCRC will be studying this judgment in great detail.

NW: The MPs who have supported the claimants for a large portion of your campaign found that they were unable to make progress with the Post Office. The Post Office is supposedly controlled by the business ministry. What do you make of the dynamic that is going on at the very highest levels at the legislature?

AB: My feeling is that the Post Office executive have been doing private briefings to the ministers over the year every time these matters have been raised with them. And have given them all sorts of assurances which now they're starting to find they aren't true. Now, the Post Office has stonewalled MPs year in, year out, at its select committees and at all sorts of other events in there. And they haven't responded, I think honestly and transparently throughout all of this. And I hope now that the MPs will take up the battle once more and actually bring Post Office to account for what it's done.

NW: What would you like to the government to do?

AB: I want the government to call it in, I want the committees to actually pull the executive in. I want an independent inquiry into the whole thing. But we'll carry on with our court cases because we're not stopping now. We've been going long enough. We're quite happy to carry on. And we're going to show in court what Post Office has been doing, as we have already in the previous trial.

NW: At the moment, we got Horizon trial ongoing and then finally...well, not finally... later on this year, we may have a third trial which will actually look into whether or not the Post Office were concealing issues from individual sub-postmasters. If that goes in your favor, what should happen to individual Post Office employees who are part of this culture that you were describing?

AB: Well, we'll have to wait for the trials to take place, obviously. And very much in those cases, we'll be looking to our legal experts to advise us along the way. I can't really answer that much further.

NW: Okay. The final question then. To what extent is Paula Vennells culpable for the way the Post Office has been behaving?

AB: Well, I think you only have to look back at some of the transcripts of the BIS [Business Innovation and Skills select committee] hearing, for example, when she was told by the MPs who were questioning her at the time, the buck stops with you, Paula. And that's where it lies. And it was down to her to... She's been at the helm throughout all this time and we very much held her responsible and now she's leaving. So I don't... I mean, she's leaving now. I don't know why. But I mean, I think it's a fortuitous time for her to go if she is going."

James Hartley outside court on 15 March 2019
James Hartley - litigation partner, Freeths solicitors

"NW: Tell me then about the significance of today's judgment.

JH: This is significant, Nick, for a number of reasons. First of all, obviously for the group, it's a very, very significant watershed for this group of claimants who've been fighting this for years now. So from their perspective, they're finally being listened to, and they're finally watching Post Office being held accountable. So it's enormously significant to these claimants. Secondly, it's significant on a legal footing, in a sense that we now have a judgment of the High Court, which sets out very clearly what Post Office's contractual obligations have always been, which are wide-ranging. And that includes an obligation and duty for them to act with good faith and transparency and cooperation with these claimants. And if it's found that Post Office haven't done that over the years, then they will be in breach of contract, and they will be responsible for damages. So significant on a legal footing.

NW: What does it mean for the individual claimants, many of whom have been left tens of thousands of pounds out of pocket by the way they've been treated contractually by the Post Office?

JH: Well, what this means is that, as I say, their particular situations are now being listened to and looked at. So ultimately, if breaches are confirmed, breach of contracts are confirmed, then they will be entitled to compensation. Which won't put right what's been done but it will help them.

NW: So the significance of this judgment is that it sets out exactly what the nature of the contract was. And it's largely the way that the claimants were stating that it should have been.

JH: Correct. The other significant point about this judgment as well as the findings by the court as to how some of these claimants have been treated, and also the references to Post Office's culture of secrecy. So not only has the judge found that a number of these claimants have been treated oppressively but the judge has, as I say, referred to this culture of secrecy, which is a significant issue in this case, and there will be more on that in future trials.

NW: So we're in the middle of a trial right now. Just give us a sense of scale of what's going on in this litigation and how it fits into the campaign that the claimants have been running for goodness knows how many years already?

JH: Well, the scale of the litigation is we've got over 550 claimants. And as you, I think, mentioned earlier on, Nick, there has been need to deploy a large legal team that has been working flat out, producing witness statements, reviewing hundreds of thousands of documents at enormous cost. And enormous time has been imposed by these claimants as well. So the cost is significant. And that was pretty necessary because the Post Office has continued to defend this case for years and years.

NW: The judge has some very harsh comments to make about the credibility of the Post Office witnesses. What are your comments on that?

JH: We agree with his comments. The cross-examination of those witnesses did highlight the fact that they seem to find it impossible to avoid their evidence being tailored to the interests of Post Office. That was the observation made or finding made by the judge. So we absolutely agree with the judges' comments and the judgments on that. And it doesn't surprise us because we have been, of course, reviewing documents that have been produced over many years where I'd say we have a good idea or a very good idea as to what the true facts are.

NW: To what extent is today's judgment historic? This campaign has been running for the best part of two decades now. And as far as I'm aware, no legal finding has ever been made against the Post Office in all the different iterations of ways this has reached court.

JH: I think it is historic. And as I say, I think it's historic because of the subject matter of the litigation, because of the amount of time it's been ongoing, and because we are dealing with a state-owned entity with very, very significant question marks now over their culture and how they're operated. So the phrase miscarriage of justice has been used a lot. And I think that that is a very appropriate phrase to use, particularly when one considers the work that's going on by the Criminal Cases Review Commission, the CCRC, who are looking into whether or not the 20 or 30 convictions, criminal convictions of postmasters should be appealed on the basis they're unsafe. So again, there is a link between this case in the High Court and the work of CCRC. And I think if one looks at that in the round, then yes, one gets to the conclusion that this is a significant and historic judgment.

NW: Final question, there were some severe criticisms made of the evidence of one of the Post Office directors, Angela van den Bogerd, for her evidence in the first trial. She is due to be cross-examined next week. Does anything that is in this judgment have any bearing on what is happening in the ongoing trial?

JH: It doesn't necessarily have any direct bearing on what the judge will decide at the next trial because he will base his decision on evidence that he hears in the next trial. However, observations in the judgments regarding the impact on the weight that the court will put on her evidence. Because the judge has indicated that by reason of the way she gave evidence in the last trial, they will need to be documentary evidence supporting what she says. So that could well impact on the weight that is given to her evidence in the next trial."


Post Office response

The Post Office refused all requests for interviews on the day the judgment was handed down (as they have done all but once in my ten years of covering this story), but they did release the following statement, from Post Office Chairman Tim Parker:

"We take this judgment and its criticisms of Post Office very seriously.

“While the culture and practices of the business have improved in many ways over the years, the Judge’s comments are a forceful reminder to us that we must always continue to do better.  We have taken his criticisms on board and will take action throughout our organisation.

Our postmasters are the backbone of our business, and our first priority will be to consider the points raised about the management of our contractual relationships and how we could improve them.

We will make sure that problems brought to our attention by postmasters are investigated even more quickly and transparently.

In addition, we will further improve communications with postmasters, as well as the training and support they receive.

We note that the judgment highlights the ways our Network Transformation Programme improved procedures for incoming postmasters since 2011. The vast majority of those running post offices do so without problems and we can reassure the millions of customers who use our services every week that this judgment, focusing as it does on the interpretation of contracts with postmasters, will not affect their ability to do so.

Post Office will continue to defend the overall litigation, which has been underway since April 2016 and is scheduled to continue through four trials until at least March 2020.

This judgment from the first trial is long and detailed and we will take time to consider it fully.

There are, however, areas around the interpretation of our contracts where the Judge’s conclusions differ from what we expected from a legal standpoint and we are therefore seriously considering an appeal on certain legal interpretations.”

Further reading:

The Common Issues trial judgment
A quick fisking of the Common Issues trial judgment
"He did it" - report written on the day of Common Issues trial judgment for this blog.
Post Office response to the judgment
Post Office video response to the judgment - needs to be seen to be believed
NFSP response to the judgment
My take on the NFSP's pasting in the judgment

Some on-the-day press/tv/radio reports:

ITV News: "Landmark court ruling in favour of Subpostmasters"

Channel 4 News: "Subpostmasters win court battle against Post Office"

Sky News: "Hundreds of Subpostmasters win landmark case"

Sky News (again): "Bankruptcy and jail: why we sued the Post Office"

FT: "Sub-postmasters win legal victory against Post Office" (paywalled)

Daily Mail: "Subpostmasters hail High Court Victory"

Daily Mail (again): "Emphatic victory as 550 ex-Subpostmasters win High Court battle"

Computer Weekly: "Subpostmasters achieve stunning victory against Post Office in Horizon case"

The Register: "Blighty's most trusted brand? Yeah, you wish, judge tells Post Office"

If an outlet/publication wrote something about the judgment on the day and I haven't listed it, please send me the link (via the contact form on this webpage) and I'll add it with thanks.

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