Friday, May 10, 2019

J Fraser is going nowhere

J Fraser. Winning.
I thought the Court of Appeal was taking its time with the Post Office's application to appeal Sir Peter Fraser's decision not to recuse (sack) himself from the Bates and others v Post Office group litigation. I was wrong. It made its decision without a hearing yesterday. I am consoling myself with the knowledge I am the first journalist to get a hold of it. You can read it here.

The ruling was made by the Right Honourable Lord Justice Coulson. Over 19 pages he indicates that J Fraser was bang on about everything in his recusal application judgment and the Post Office's application to have his judgment overturned was "without substance", "misconceived", "fatally flawed", "untenable" and "absurd".

Lord Justice Coulson notes the claimants contended the purpose of the recusal application and application to appeal was to sink the Horizon trial.

He muses: "the mere making of these applications could have led to the collapse of that [Horizon] trial altogether. Although I can reach no concluded view on the matter, I can at least understand why the SPMs [Subpostmaster claimants] originally submitted on 21 March that that was its purpose."

There follows some choice quotes from the ruling broken down into sections. They are all critical of the Post Office.




In summary:

"Permission to appeal against Judgment 4 [the recusal judgment] is refused. I set out the reasons for that conclusion in greater detail than usual only because of the volume and nature of the criticisms which have been made and the importance of the group litigation to both parties. I do not do so because of the merits of the application itself, which in my view is without substance.”

"What matters for the purposes of any recusal application is whether, when looking at Judgment 3 [the Common Issues trial judgment] as a whole, a fair-minded observer would conclude that there was a real possibility that, to the extent that he made such findings, the judge was biased in so doing.... as explained in greater detail below, the PO has not come close to demonstrating it in this case."

The Post Office's obssession with trying to get rid of evidence it doesn't like:

"There is force in the submissions...  that the PO’s strike-out application [made in October last year and rejected in Judgment 2] arose because the PO wished to adduce extensive factual evidence in their favour, but objected to any evidence to the contrary from the SPMs [Subpostmasters]. As they put it, “the Post Office wanted the case decided all one way”. There remains a distinct flavour of that approach within the recusal application."

The Post Office's approach to cherry-picking a 180,000 word judgment:

"As the judge [J Fraser] explained... the PO is now having to argue that the outcome of the sub-trial was irrelevant to the recusal application, and that what mattered were individual sentences, scattered through Judgment 3 which they say amount to a demonstration of apparent bias. The judge thought that was a misconceived approach. So do I."

"The judge said in a number of different places in Judgment 4 that many of the phrases or sentences upon which the recusal application is based are taken wholly out of context by the PO. I agree with that conclusion."

"This is particularly egregious where, as happens repeatedly, the sentence before or the sentence after the phrase/sentence relied on makes clear that, for example, it is not a finding of fact, or it is an observation based on the PO’s own evidence."

"The fair-minded observer would only consider whether the passages relied on gave rise to a real possibility that the judge was biased by considering those passages in full and in context. That is what being “fair-minded'’ requires. I consider that the recusal application and the appeal ignore this basic principle and are fatally flawed in consequence."

The Post Office's behaviour before and during the Common Issues trial:

"The PO’s application is based on a total disregard of what it actually said and did before and during the Common Issues sub-trial... the PO’s skeleton argument, in keeping with the oral
arguments made to the judge, endeavour to present the sub-trial as a clearly-defined, simple set of issues concerned with the construction of contract terms, where factual disputes were few and far between. On any view of the papers, that is a significant misrepresentation, not only of the issues themselves, but also of the way in which the PO itself ran its case before the judge. It raised factual disputes at every turn."

"For the PO now to say - as they do - that actually all of this was irrelevant, and that the judge demonstrated apparent bias by dealing with and making findings upon those matters which the PO itself had put in issue, is an untenable position to adopt."

"For the PO now to complain about the making of findings on these issues, which arose out of the way which they themselves put their case, is absurd."

The Common Issues judgment's alleged mission creep:

"The mere fact that in a lengthy judgment, the judge may have strayed beyond the strict scope of a particular issue, out of thousands in dispute, is, in one sense, neither here nor there. It is quite capable of correction at any subsequent sub-trial."

In his recusal judgment J Fraser made it quite clear that even if the Post Office's submission for his recusal had any substance he would refuse them anyway due to the way they were made. Lord Coulson agrees:

"It is unnecessary to decide the waiver point, given that, for the reasons I have given, the substantive appeal has no prospect of success. However, it would be wrong to leave this application for permission to appeal without dealing with the timing and manner in which the recusal application was made."

"The judge learned of the recusal application by accident just before the afternoon session of the last day of the factual evidence on the Horizon Issues trial This was at best discourteous; at worst, it betrayed a singular lack of openness on the part of the PO and their advisors."

In conclusion:

“… the scattergun way in [sic] the original application was made, now mirrored in the way that this appeal has been pursued, can be seen in the continually changing nature of the PO’s arguments."

“It is a great pity that the recusal application and this application for permission to appeal have had the effect of delaying the conclusion of the critical Horizon sub-trial. Indeed, the mere making of these applications could have led to the collapse of that sub-trial altogether. Although I can reach no concluded view on the matter, I can at least understand why the SPMs originally submitted on 21 March that that was its purpose."

So there we go. Sir Peter Fraser remains and will remain the managing judge in Bates and others v Post Office until it concludes. The Post Office's attempt to blow him out of the water has failed, miserably.

I have, of course, emailed the Post Office asking for a comment on the ruling, and as soon as I get it, I'll post it up.

Further reading:
Common Issues trial judgment (cheat sheet)
The drama of the day the recusal application was given to the judge
Being in court for the initial recusal application judgment
And because it's now in danger of being overshadowed by the Court of Appeal ruling, a piece I put up yesterday afternoon about a Subpostmaster currently being hounded by the Post Office for £35,000. It's always good to remind yourself why this story exists.

The Horizon trial now definitely re-starts 4 June. I'll be there. Join the secret email gang by donating below and enjoy the build up.

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If you can, please help keep this crowdfunded public-interest journalism project going by chucking a few quid in the tip jar below. Contributors who give £20 or more will start receiving regular "secret" emails which have all the info and gossip about this litigation as it makes its way through the courts.

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"The Post Office claim I owe them £35,000, despite never showing or telling me what I have done wrong."

Pete Murray
Many of the cases currently part of the Bates and others v Post Office litigation date back to the first decade of this century, but a large chunk relate to problems with Horizon online, which came on stream in 2010 and a version of which is still in use today.

Subpostmasters were having problems with Horizon online and joining the claimant cohort right up to the July 2017 deadline (cf Liz Stockdale*), and more Subpostmasters who aren't claimants continue to have serious problems with Horizon.

Hope Farm Road Post Office in Great Sutton used to be run by Martin Griffiths, who is sadly no longer with us. Whilst he was Subpostmaster, Mr Griffiths experienced huge, inexplicable discrepancies appearing on his Horizon terminal which the Post Office demanded he repay. He became depressed and eventually took his own life.

The current incumbent at Hope Farm Road, Pete Murray, was not told any of this before he took on the branch. He found, within weeks of taking over, his Horizon terminal was throwing up large inexplicable losses. He was suspended over the Christmas period last year and is facing legal demands from the Post Office to give them £35,000 of his own money.

What follows was written by Pete back in December whilst he was still suspended.

Here is Part 1 of Pete's story, in his own words:

"My problems started on 8 October 2014, when we took over Hope Farm Road. I already had one post office at Grove Road in Wallasey, which I took over in 2013. Apart from being temporarily suspended for problems with accounting for ATM cash (later identified as a gap in my training and wholly resolved in my favour), I did not have any problems at Grove Road.

The contracts manager for both my post offices is now Paul Williams, who also interviewed me for the Hope Farm Road office.

Since I took over at Hope Farm there have been a number of random, sudden and large deficits at close of business on a number of days. We are talking thousands.

Besides the staff member I inherited on buying the business, I also employ two other people on a relief basis from time to time.

All three are vastly experienced with the Horizon computer system. Much more so than me. That said, I am capable with computers and all things numeric. I definitely have more of a maths brain.

The first time there was a sudden shortage, we had no idea where it came from and were unable to find it, so we declared and rolled over a loss. We had no choice. I felt very guilty for apparently losing the money, and of course, I had to repay it.

Then it happened again. And again. And despite going through every transaction each time, nothing could be found.

"Don't trust your staff."

I was away in October for three weeks last year, and I asked a friend to cover two days for me, as the agency I had contracted to provide me with cover could not fill these two one-day gaps.

My friend had just a couple of days counter training in his own post office, but as I was going to be on the other side of the world and he owed me a favour, I crossed my fingers and hoped we would be okay.

During the three week period I was away, a shortage of £17,000 arose. I can't point the finger at anyone. I wasn't there, and I don't know what happened.

On another occasion, the lady who worked at our branch full-time turned to me and said “Look." Her end of day cash declaration was showing a shortage of £8,000. I was 100% convinced it wasn't her.

We went through the system together, and found nothing. The other weird thing is that her stock unit basically almost never had that amount of cash in it - for it to be that short, there had to be a random high value transaction put through by mistake. We searched, and found nothing.

I called the helpline, followed their instructions and got nowhere. I called the helpline again, asking them to put me in touch with Mr Williams.

He never contacted me. I would get letters from the "Agents' Accounting Team" asking me to call them to set up repayments. I called them, on one occasion in tears, saying "PLEASE, can you get someone to come out?"

Eventually the Agents' Accounting Team agreed to "an intervention", and an auditor came out. He spent 20 minutes in the fortress [the secure area behind the counter] with me, chatting about my problems, but he didn't even bother to log into or Horizon, take a look at it or read any of my paperwork. He left me to it.

I called the Post Office head of security, who was on leave at the time. His voice message offered two other mobile numbers. I called one of them, got no answer and left a voicemail.

The man who called back was the Post Office's number two in the security department. He just told me repeatedly “Don't trust your staff.”

He said it over and over again. I was three years or so into being a Postmaster at this time. The staff at my branch had all been doing it for decades, completely professionally and honestly. Or so I thought.

How can I start not trusting these people? I was asking for help from the Post Office, from 5 different departments, all of whom were my gateway to the contracts manager, and NO HELP whatsoever was coming through. All I had was demands for payment. But I still stand on the fact that those losses were not down to me.

It was not until after I bought the Hope Farm Road post office branch that I learned that the previous Postmaster, Martin Griffiths, had taken his own life. He had thrown himself under a bus.

This was after a few years back and forth arguing the case with the Post Office about the shortages.

"They left litter lying around my office."

So far the Post Office have taken a total of £23,000 out of my monthly income. I have debts of £5,000 to my father and a friend and the Post Office still claim I owe them a further £35,000, despite never showing or telling me what I have done wrong.

On the 1 November 2018 I had a surprise audit. There were two people from head office at my Grove Road branch and at three at Hope Farm Road. It was like they already knew they were going to suspend me before the audit even started.  I felt really under pressure and vulnerable. They found another £2,000 discrepancy. I was suspended.

Something that really ground on me was the way these auditors behaved. They left litter lying around my office, coffee cups and wrappers from the bakery next door. They spent the entire time in my office bitching about colleagues.

Also, all three of them were talking about upcoming or just taken foreign holidays and the new company cars all three had recently ordered. Whilst they were going on about which model they'd chosen and the spec they'd gone for my blood was boiling. I can't afford any time off from my branch. I work really hard all day long, every day. I can't take my family away for a weekend, as I can't afford cover in my Post Office. Every day I strive to survive, making money for Post Office, only to listen to three head office staff members chatting away merrily about their lovely cars and holidays, whilst the input of 11,500 postmasters generates their income for them.

Several times during the audit, they called Mr Williams. This is the same Paul Williams who appeared in court during the recent trial [NB the Post Office have got in touch to say it's not]. I did not know the trial was happening until I saw it on twitter.

So when I read the transcript from the court during which the Postmasters' QC asked Mr Williams: “So, you are saying, your team has never had any complaints?” and Mr Williams responded: “No.” I was absolutely gobsmacked. [NB again this appears to be a case of mistaken identity - the Post Office says there are two different Paul Williams here]

To summarize, as a result of the recurring losses in Hope Farm Road Post Office, I have reached out to:

• Paul Williams – I called the helpline on at least three occasions, asking to speak to him, each time being told they will contact him to get in touch – he never has;
• the Agents' Accounting Team – during discussions about how to repay the missing monies, I asked them to please send help. I got a random visit from one auditor who hung around for 20 minutes chatting, basically said 'you're on your own', and left;
• the Post Office Security Team – I called them, they said 'don't trust your staff' repeatedly – and nothing else;
• the Helpline – not just asking for help to contact Mr Williams, but also, on the times I have had losses and gone directly to the helpline for guidance, generally they were clueless and/or unable to help.

"It was humbling, embarrassing, and downright wrong."

Since my suspension, Mr Williams has postponed a 'discussion' meeting twice so far. I've now been suspended three months, when he initially told me it 'could be up to 8 weeks'. The reason, he says, for the delay is that the team who specialise in deeper searches in the Horizon system have not found anything yet as regards the faults in Hope Farm Road.

I was extremely disappointed – then it struck me like a thunderbolt – if such a department exists, to do deeper, more intense searches into Horizon, then why on earth are they not available to do these searches when a postmaster reaches out to them for help?

Whilst I have been on suspension, I received a letter from the “Former Agents' Accounting Team” - FORMER! - demanding a response as to how I was to pay them £35,000. I haven't even had the meeting yet to discuss what happens next, but Post Office have handed my case over to the people who deal with "Former Agents". It seems to me that in their minds, they have already fired me – or at least that they have a system in place that is so automated, that there's a routine to it, and they do this often.

It did strike me that every time I spoke on the phone with the Agents' Accounting Team (Current, not Former), their behaviour on the phone seemed all so matter of fact. It seemed like they are perfectly used to taking card payments over the phone from postmasters, with a brusque efficiency that gives you a feeling that they see you as an unprofessional criminal paying what is owed. It was humbling, embarrassing, and downright wrong. The Post Office have also withheld money which I should have been paid on 1 December 2018, for work completed in October, before the suspension.

I also received a letter from a firm of solicitors, acting for the Post Office (it's very, very nerve-wracking to receive a letter with the heading “Post Office Ltd vs Peter J. Murray” I can tell you), which was basically a demand for me to give them evidence of how I was to repay the money they say I owe them.

I wrote back to the solicitors and said that as I have not yet had a review meeting with the contracts manager who suspended me, how could they be threatening me with legal action? As far as I was concerned, I am not yet an ex-Postmaster. They wrote back retracting their demand, saying as I am still waiting for a meeting with my contracts manager they will not take any steps until after that.

This, whether intentionally or by mistake, is extreme harassment, and strikes me as guilty until proven innocent.

"I have been contacting the Post Office for help, and absolutely NONE has been forthcoming."

Other than the ATM issue at the Grove Road branch, I had no problems before buying Hope Farm Road Post Office – which I later learned has a history of discrepancies going on for years. The first couple of times it happened, I didn't have a clue what caused it, and repaid it, but since it has happened more often and to more than one person, I have been contacting the Post Office for help, and absolutely NONE has been forthcoming.

Based on their refusal to answer my calls for help, along with their brick wall obstacles to prevent postmasters from contacting their contracts manager, how on earth can the Post Office hold me responsible for losses when I have asked repeatedly for their help?

When I read in the court transcript the other week that Mr Williams told the court that his team had received no complaints [See above] I was livid. The reason he's received no complaints was purely because the system is so set up that he could disappear from his desk for a year and none of the postmasters he is responsible for would have any idea.

I am still waiting for my meeting with Mr Williams. As a result, the people in Great Sutton and the people in Wallasey Village have had no Post Office for three months, and it is not fair. My family life is suffering, the stress is causing arguments, and I think it is just not fair that someone who clearly doesn't even watch his patch rules it like a bully – the guy round the corner who has been suspended had not had an audit in OVER 20 YEARS – surely the Post Office should be investigating Paul Williams, and not me?

I just want to walk away from Hope Farm Road and never return, but I have to pay £14,000 a year rent to the landlord. Not only that, now this is all coming out – who is going to want to buy a post office?

I wanted to write this a few weeks ago, and remain anonymous, as my meeting had not yet come up.

Now it has been postponed a second time, and given what they have done to me and to my branches, I think my relationship with Post Office may well be beyond repair, though I can hold my head up high in the knowledge that I have done nothing wrong. So now I just have to get all of the above out there, as I fear the Post Office are trying to silence stories like this, based on what I have seen of the recent court case.

I want to get the debt quashed and walk away from Hope Farm, and for Grove Road, where my wife usually works, to be returned to us and reopened. I believe the Post Office have a moral obligation to acknowledge that their rebuffs and refusals to help over the last two years should make these discrepancies THEIR responsibility, and not mine.”

Shortly after writing this, two things happened. Pete suffered a stress-related stroke on 20 Dec 2018, temporarily losing the use of his arm. Also after having his Subpostmaster pay stopped and losing two months worth of trade at the busiest time of the year (due to his suspension), the Post Office suggested a meeting in early January 2019.

Did Pete get reinstated? Is the Post Office still chasing him for £35,000?

You can read part 2 of Pete's story here: "What kind of games are you playing with human beings' lives?"
You can read part 3 of Pete's story here: "Post Office Ltd see fit and well to treat me like this, pending an 'investigation' which appears not to be taking place."

After my request for comment the Post Office told me its not appropriate to comment on individual cases.

Read more Subpostmaster stories of being pursued and sometimes sacked and prosecuted by the Post Office here: Victim Testimony.

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* Read Liz Stockdale's Witness Statement and the transcript of her evidence via the Common Issues Trial Menu. The judge found Mrs Stockdale to be "a careful and accurate witness, and I consider she was telling me the truth."

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If you can, please help keep this crowdfunded public-interest journalism project going by chucking a few quid in the tip jar below. Contributors who give £20 or more will start receiving regular "secret" emails which have all the info and gossip about this litigation as it makes its way through the courts.

If you want to find out a little bit more about the underlying story, click here.
                                                     
Choose an amount