Tuesday, July 2, 2019

Horizon trial final day: the lights go out

Antony de Garr Robinson QC (l) arriving at court
this morning with fellow barrister Owain Draper
As we have reached the end of the road with the Horizon trial this is not going to be a straight report of what happened today. Anthony de Garr Robinson, QC for the Post Office, did a sterling job of making the Post Office's case, which largely remains the same as it was at the beginning of the trial.

The Post Office agrees Horizon is not perfect. It has bugs, errors and defects, but, according to the Post Office, the likelihood of a claimant Subpostmaster being held responsible for an error caused by a bug is statistically tiny. And in the absence of any other proof, they see no reason to abandon that position.

It is up to the claimants to provide proof and it is a question I have asked before - where is the smoking gun? During the first part of the Horizon trial the claimants produced something which looked like a smoking gun and I reported it. During his cross-examination of the claimants' IT expert Mr de Garr Robinson contested the claimants' position on this specific point. The judge will decide who is right on that instance with all the information before him. Still. One example...

Robustyness

During his closing argument today Mr de Garr Robinson suggested the judge was being led by the claimants into a category error. I think this whole trial has been a category error. There are 550+ claimants. Most apparently believe Horizon is the source of their woes - so why wasn't the Horizon trial an in-depth examination of each of the branch terminals/accounts/data in each of their cases?

That way you get a definitive answer as to whether Horizon was to blame. In the event we had a debate over whether Horizon is/was "robust" or "relatively robust" (which has, as predicted, become a semantic debate over the meaning of "robust") and a bad-tempered discussion about disclosure.

I hesitate to pass comment about the nature and effect of the bugs which were found in the disclosed documents - I haven't studied the reports of the independent IT experts in detail and I haven't read all of the closing statements (the Post Office's is longer than the first trial judgment) - but Jason Coyne, the claimants' IT expert agreed that relative to systems of a similar function and size, Horizon is robust. This is what Mr Coyne said under cross-examination:

Anthony de Garr Robinson: So when you say the Horizon system is relatively robust, you are saying that in the overwhelming majority of cases where conditions are both normal and adverse it works reliably, yes?
Jason Coyne: Yes, the vast majority of all the transactions that flow through the Horizon system will work successfully.
AdGR: And although there are occasions when it doesn't, those represent only a tiny proportion of the work that it does, correct?
JC: Yes, it will be a small fraction of the work that it does, yes.
AdGR: Even within that tiny proportion, a large majority of the problems thrown up are picked up and corrected by the various systems in place that are designed to do precisely that?
JC: Certainly many of the ones that go wrong for one reason or another appear to be picked up. There are examples where they don't appear to have been picked up and examples which appear to have an impact.
AdGR: That is a very important opinion, isn't it, in the context of this case? 
JC: Yes.

If the elephant in the room is what happened in the individual cases brought by the claimants, why not examine them?

I listed the Horizon Issues in a separate blog post. That is what this trial will be decided on. Cross-reference them against the transcripts and the documents I have been able to winkle out of this process (many published on this blog) and you too can play at being a High Court judge. 

I suspect the resultant ruling will be nothing like the first trial with regard to who it favours. But then I thought there was no way Boris Johnson would be elected Mayor of London. 

Justice delayed. Again.

The Post Office's attempt to get the judge sacked in the middle of the Horizon trial has thrown a spanner into the scheduling of the litigation. November's trial is now off as both parties agree they cannot possibly be ready in time. They also hinted in court today there is a natural window opening up in autumn for potential mediation. 

The second trial judgment should arrive around October and in the same month the Court of Appeal has indicated it intends to make a ruling on whether or not it will accept the Post Office's application to appeal the first trial judgment.

If both go against the Post Office they would have a massive incentive to attempt to settle. Even if the Horizon judgment is little more than equivocal, if the Common Issues judgment is upheld in its existing form it will be interesting.

If mediation comes to nought or fails to happen the third trial will take place on 2 March 2020. I understand it will be on issues of limitation, concealment and quantam.

What are they, then?

Well...

Limitation - there is a six year time bar in the civil courts, and the first claim in this litigation went in in 2016. This means that pretty much every claimant in this litigation whose substantive problems with the Post Office arose before 2010 will have to have a good reason for not suing them sooner. Which brings us neatly to...

Concealment - if the claimants can prove that information was kept from them which could or would have helped them in suing the Post Office, they may not be time-barred.

Quantam - part of the third trial will be a discussion/argument about the value of any damages the claimants might get should the judge rule in their favour.

Interestingly, the lead claimants in the third trial will be Naushad Abdulla, Pam Stubbs, Liz Stockdale and Alan Bates, partly because their cases were examined so closely in the first trial - both sides now have a significant amount of information on them. Starting from scratch with four other claimants would take yet more time and money.

There is still a fourth trial in the offing - where the judge will possibly decide on whether the Post Office has breached its contractual obligations to a representative group of claimants. That might take place in June 2020, which means the first substantial damages (if any are to be awarded) may not appear until October 2020, which, of course the Post Office could appeal, taking us into 2021. Only then might the terminally lethargic Criminal Cases Review Commission decide to send some or all of the cases it has under consideration to the Appeal Court, possibly taking us into 2022.

I know of at least one claimant who has already died waiting for an opportunity to clear his name. I suspect there will be a few more over the next three years. I'll go back to what I said in January: unless this starts playing out in the court of public opinion, it will drag on until someone runs out of money. And the Post Office is too big to fail.

Today's transcript is here.
The Post Office closing statement is here.
The claimants' closing submission is here.

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Horizon trial: Post Office written closing

This was the Post Office's written closing presented the on the final day (Day 22) of the Horizon trial at the High Court's Rolls Building on Tuesday 2 July 2019.

Read it here on scrib'd or embedded below, then have a look at the transcript of the day, and then you will probably be across the Post Office's perspective on the Horizon Issues.

Horizon trial Day 22: final day transcript

This is the unperfected transcript of Day 22  - the final day of the Horizon trial.

Mr Anthony de Garr Robinson QC for the claimants presented his closing submission to the judge.

                                         Tuesday, 2nd July 2019
   (10.30 am)
            Closing submissions by MR DE GARR ROBINSON
   MR DE GARR ROBINSON:  My Lord, good morning.  I'm going to
       start by seeking to draw your Lordship's attention to
       some extraordinary features of the claimants' case as it
       has developed before your Lordship during the course of
       this trial.
           First of all, I would like to remind your Lordship
       of some points of which you will be well aware, and if
       I can do it by reference first of all to the Horizon
       Issues which is at {C1/1/1}.
           The first point is that your Lordship ordered
       an expert-led trial and your Lordship will see that from
       the header to the Horizon Issues.  The header is taken
       from remarks that your Lordship made at the CMC on
       22nd February, and that's at {C8.4/4/1}.  Perhaps we
       could have a look at that.
           Sometimes one does rather miss the old days when one
       had files, my Lord.
   MR JUSTICE FRASER:  That's the document.  Which page?
   MR DE GARR ROBINSON:  It is at page 54.  I don't have
       a document.
   MR JUSTICE FRASER:  There is one on the common screen.
   MR DE GARR ROBINSON:  I'm so sorry.  The reason why I said
       that rather intemperate, which I now regret, is that
       I see nothing on my screen.  I wonder if someone could
       look at that for me?
   MR JUSTICE FRASER:  Have you not got a screen now?
   MR DE GARR ROBINSON:  It is a black screen, my Lord.
       Perhaps it is not plugged in.
   MR JUSTICE FRASER:  Well, that's unsatisfactory for obvious
       reasons.  It is not the best start.  I think you need
       a screen, but I can easily rise for a minute or two to
       avoid putting pressure on anyone.
   MR DE GARR ROBINSON:  I would be very grateful to
       your Lordship.  I do apologise.
   MR JUSTICE FRASER:  You don't have to apologise.  These
       things just happen.  Whenever they happen they are
       always at a very inconvenient time, but I suppose at
       least we haven't got into the depths of the day.  We may
       as well sort it all out at the beginning.  5 minutes?
   MR DE GARR ROBINSON:  5 minutes.
   (10.36 am)
                         (A short break)
   (10.38 am)
   MR DE GARR ROBINSON:  My Lord, I'm hoping we can continue at
       approximately this pace for the rest of the day.  It
       will be a much more enjoyable day that way.
           We are on the 22nd February hearing and
       your Lordship will be familiar with these words but
       I will, if I may, read them out.  You said:
           "It is very unusual in case management to find
       oneself having constantly to try and put either one or
       other party back on track for cost-effective resolution
       of serious disputes.  I reminded myself, again by
       reference to the actual transcript, of what I said last
       time, although I had a pretty clear recollection, that
       what I was going to be doing in March was to deal with
       expert issues that were present on the pleadings
       concerning Horizon which I described generically as the
       next big issue.  I wanted the parties to agree or each
       propose an isolated number of issues on the pleadings
       related to Horizon that would involve expert evidence
       but not evidence of individual cases."
           {C8.4/4/54}
           My Lord, it was with those words ringing in their
       ears that the parties agreed the Horizon Issues and
       offered them to your Lordship for approval.
           Disclosure was then given, hundreds of thousands of
       documents were disclosed and reviewed by the experts.
       They were disclosure of documents of an expert nature.
       The claimants criticised Post Office on their disclosure
       and Post Office criticises the claimants on their
       disclosure, but for present purposes the important point
       is a huge amount of disclosure was given by Post Office;
       it was directed at informing the expert process and many
       of the documents, I would say most of the documents,
       called for expert review and comment.
           The next important stage of the litigation was vast
       expert reports being served.  Mr Coyne's two reports run
       to well over 500 pages without appendices.
           They were many, many, many, hundreds of times
       I would say, more detailed than my learned friend's
       outlined allegation document that was produced in August
       which no one has really referred to, and they took weeks
       properly to assimilate.  It is fair to say that the
       Post Office was still trying to assimilate Mr Coyne's
       second report when the trial actually began.
       Your Lordship may appreciate how that felt at the time.
           Now, the experts co-operated to identify the
       principal agreements and disagreements between them, and
       that was, in my submission, a very helpful process that
       was overseen and encouraged by your Lordship and it led
       to four long joint statements which in my submission
       were helpful.
           JS2 is particularly helpful in that it sets out in
       the bug table what the experts say on each side.
       Without that we would be digging through the interstices
       of these interminable reports.  It brought a welcome
       measure of focus, and given we don't have detailed
       pleadings or schedules in relation to specific bugs it
       gave the parties an opportunity to decide how to
       organise their cross-examination and proceed.
           Your Lordship will be aware that the parties'
       cross-examination was limited.  I certainly would have
       liked more time given the scale of the reports.  But
       given the other factual evidence that had been called,
       I had four days; my learned friend took three.
           Now, the Horizon Issues are expert issues and we
       have had an expert-led trial as your Lordship ordered.
       But anyone who came to court for the first time
       yesterday might have formed a very different impression
       of what this case was all about.
           One expects oral closings to be about the oral
       evidence to explain how the case has developed since the
       openings now that everybody is much the wiser.  But in
       my learned friend's submissions there was almost no
       reference to Mr Coyne's oral evidence or to Mr Roll's
       oral evidence and no reference at all to the important
       respects in which that oral evidence changed the picture
       as compared with Mr Coyne's reports on the one hand and
       Mr Roll's witness statements on the other.
           I don't mention the fact that there were these
       changes as a criticism of Mr Coyne but merely as a point
       about the unusual approach that the claimants have
       adopted, I would suggest felt constrained to adopt, in
       the final days of this expert-led trial.  My learned
       friend was constrained to make many of his submissions
       largely without reference to the conclusions reached by
       the expert whom his clients had instructed and largely
       without reference to the very substantial common ground
       that was between the experts, both as set out in the
       joint statements and was achieved during the course of
       the cross-examination and, indeed, your Lordship's own
       questions.
           Important parts of my learned friend's submissions
       were directly contrary to that evidence and those
       agreements.  For example, your Lordship will have heard
       my learned friend say that Horizon is not robust.
       My Lord, that, as your Lordship will be well aware, is
       directly contrary to the experts' common views.
           My learned friend tries to duck that by effectively
       suggesting that robustness doesn't really mean anything.
       But, again, that's contrary to what the experts say.
       And your Lordship will see that from our written closing
       at paragraph 361; that's at page 132.  I'm not going to
       take your Lordship to it now.
           Mr Green didn't engage with any of that evidence,
       nor did he engage with Mr Coyne's oral evidence on the
       likely total number of detected bugs over a 20-year
       period.  Your Lordship will I am sure have well in mind
       that he said it was no more than 40 including transient
       bugs.  So if one takes into account that of the 29 bugs
       in the bug table he says only 22 were lasting, then one
       assumes, one infers, that his view is that the number of
       lasting bugs that are in the system would be around 30
       over 20 years.
           Nor did he engage with Mr Coyne's oral evidence on
       the number of instances of remote access that he had
       seen over that same period.  Your Lordship again will
       I hope have in mind that Mr Coyne said he had seen about
       30 instances of relevant remote access for the purposes
       of these proceedings.
           Those numbers loomed large in any worthwhile
       consideration of the key extent questions raised by the
       Horizon Issues.  But they weren't addressed by my
       learned friend.  Instead he gave examples of things.  He
       told your Lordship little stories and he relied on
       snippets from documents.  But what he didn't do is he
       didn't attempt to draw back and ask the question, after
       all the evidence that your Lordship has heard: where do
       we end up on the expert evidence that has been given in
       this case?
           In my respectful submission, the inevitable
       inference is that the claimants have considered very
       carefully where we do end up on the expert evidence and
       their considered view is that they would prefer the
       court to look elsewhere.  They would prefer
       your Lordship to take an impressionistic approach, and
       by that I mean the kind of approach under which all bugs
       that caused doubling up can be considered as one and the
       same thing, as my learned friend remarkably appeared to
       be suggesting last night.
           That suggestion was apparently made -- and I may be
       being unfair to him, but it was apparently made to
       provide some colourable basis on which to call into
       question the criminal prosecution.  My Lord, that's all
       headline-grabbing stuff but it is nothing to do with
       Horizon Issues and it is nothing to do with the
       expert-led trial that your Lordship ordered and on which
       the parties have spent so much time, money and, if I may
       say so, sweat.
           Now, I propose to focus on where we are left after
       the trial.  Most notably, in terms of Mr Coyne's
       evidence on Horizon Issues 1, 3, 4 and 6 and on
       Mr Roll's oral evidence as well.  And your Lordship will
       see that my submissions, I should say our submissions,
       the submissions of myself, Mr Henderson, Mr Draper and
       Ms Keating are set out quite fully and at length, and
       I'm sorry for the length of the submissions we have
       submitted to your Lordship.
           That brings me to another feature of the case which
       I submit is also extraordinary.  In their written
       submissions, their closing, the claimants say, I think
       more than once but they say it triumphantly, that
       Mr Roll was right.  What they mean is the Mr Roll that
       was portrayed in the witness statement that he would
       have had drafted for him was right.  But, my Lord, in my
       submission a very different Mr Roll came through when he
       gave oral evidence, and just as the claimants make no
       reference to Mr Coyne's oral evidence during the course
       of this trial, they similarly seek to distract, if I may
       say so, certainly pay no attention to, the oral evidence
       that Mr Roll gave.
           Just to remind ourselves quite how far we have come,
       perhaps I could ask your Lordship to have a quick look
       just at his first witness statements at {E1/7/1}.
       Rather than reading out long chunks perhaps I could ask
       your Lordship to read particular paragraphs; first of
       all, paragraph 7 {E1/7/2}.  Then the last sentence of
       paragraph 8.  The first sentence of paragraph 10.  The
       last sentence of paragraph 11.  And then, my Lord,
       finally paragraph 19 {E1/7/3}.
           That's a brief selection, but they are what could be
       described as headline-grabbing statements made by
       Mr Roll.
           In my respectful submission, your Lordship will have
       heard Mr Roll and will have seen our written closings,
       and from our written closings I respectfully submit that
       your Lordship should conclude that all of those claims
       have effectively gone.  For your Lordship's note these
       are addressed in pages 38 to 63 of our closing
       submissions.
           Here are some highlights.  Mr Roll accepted that his
       recollection of 70% of the work he did could be wrong
       because one tends to remember non-mundane things more
       clearly than mundane things.
           As regards time pressure on the SSC, that was
       a feeling from a long time ago and he said his
       recollection was quite hazy and he also said that he had
       that feeling not very often.  He said that when he said
       he spent 70% of his time looking for faults on data
       stores he was not looking for software bugs.  Remarkably
       he accepted that coding errors causing financial impact
       on branch accounts in his experience were extremely
       rare.  He accepted that paragraph 19 was wrong, that he
       and other colleagues were not routinely working on
       coding issues causing financial discrepancies, and even
       more remarkably he couldn't recall ever working on
       a coding issue which caused a financial impact on
       a branch.
           Be that as it may, in relation to bugs causing
       branch shortfalls, his evidence has been, if I may say
       so, over taken by the KELs and the PEAKs that have been
       disclosed in this case and the in-depth analysis that
       has been performed by the experts on those documents.
           Your Lordship will be well aware of Mr Coyne's oral
       evidence that he and his team, having read almost all
       the KELs and having done innumerable intelligent
       searches through all the KELs and all the PEAKs, his
       judgment was there are not more than 40 branch-affecting
       bugs over 20 years.
           Similar points can be made about remote access.
       Mr Coyne accepted that any work on branch data is
       typically recorded in PEAKs, and for your Lordship's
       note that's at paragraph 740 of our closing
       {Day16/28:1}.  Mr Coyne said that there had been no more
       than 30 occasions of relevant remote access; that's
       paragraph 746 of our closings.  And Mr Coyne said that
       the chances of remote access adversely affecting branch
       accounts was small.  My Lord, that's paragraph 748 of
       our closings.
           My Lord, all those points are consistent with
       Mr Roll's oral evidence.  But you would get no hint of
       that anywhere in the claimants' oral or written
       closings.  That, in my submission, is a graphic
       illustration of how the claimants would like to distract
       the court from the oral evidence given by their two most
       important witnesses.  What they want to do is tell
       little stories of individual incidents instead and to
       give the court the impression that those individual
       incidents are somehow symptomatic or representative of
       a wider phenomenon of which there is no evidence
       whatsoever.
           My Lord, they would also like to stop the court from
       deciding the most practically useful issue in this
       entire issue, the Horizon Issue trial.  And that is the
       extent of the risk or likelihood of Horizon bugs causing
       branch shortfalls for which SPMs are held liable.
           They do this in a number of ingenious ways.  Indeed,
       they do it rather beautifully by accusing Post Office of
       seeking to rewrite Horizon Issues 1 and 3.  Let me deal
       with those arguments very briefly.
           Horizon Issue 1 first of all.  They make three
       assertions.  First of all, the threshold for satisfying
       the enquiry required by Horizon Issue 1 is merely that
       there should be a potential of causing discrepancies or
       shortfalls, the logic of their position being if some
       potential is found, however slight, the court stops
       there.  And they follow up that submission by saying in
       no circumstances, Post Office's attempt to draw
       attention to the kind of bug that doesn't have a lasting
       impact is an impermissible exercise.  They say that
       Post Office is introducing a false concept which isn't
       written into the Horizon Issue itself.
           Thirdly, they argue that the discrepancies and
       shortfalls referred to in Issue 1 need only relate to
       branch accounts, they don't need to be in branch
       accounts.
           As to these three arguments, potential first of all.
       My Lord, it is important not to forget the words
       "extent" and "likelihood" at the beginning of Issue 1.
       I don't know if your Lordship has the issues with you?
       To what extent was it possible or likely for bugs of the
       nature alleged in the GPOC and referred to in the
       generic defence to have the potential to cause apparent
       or alleged discrepancies?
           The essential enquiry is an enquiry as to extent of
       likelihood, and I won't invite your Lordship to do it
       but if you look at the assertions made in paragraphs 23
       and 24 of the generic particulars of claim and the
       relevant paragraphs of the generic defence, that is how
       the case is put.
           These are bugs that caused these things.
       "Potential" is just a word that's emphasising that what
       the court is doing is assessing extent of likelihood or
       risk or potential; it just reinforces the essential
       enquiry that the court is required to undertake.
           Critically, the court is not required to stop if it
       identifies some potential.  It actually needs to assess
       risk or likelihood in a sensible way and, my Lord,
       your Lordship will be well aware that I submit that that
       sensible way requires a sense of scale or perspective,
       another thing that the claimants would rather not talk
       about.
           So, my Lord, that deals with potential.  Let's now
       deal with the so-called impermissible concept of
       lasting.  In my submission it is not impermissible, it
       is fundamental, otherwise the determination called for
       by Issue 1 would be practically pointless.  I'm not
       saying, and the Post Office doesn't submit, that whether
       a transient discrepancy was caused is irrelevant.  Of
       course not.  Issue 1(a) refers to apparent or alleged
       discrepancies but it also refers to apparent or alleged
       shortfalls.  I ask forensically: what's a shortfall?
       What is the difference between a discrepancy and the
       shortfall and why was it necessary for the Horizon
       Issues to distinguish between them?
           A shortfall is that for which an SPM is held liable.
       A discrepancy doesn't really matter at the end of the
       day.  I hope no one quotes me out of context.  But if
       your Lordship understands what I'm submitting to you, if
       a discrepancy occurs during the course of a month, if it
       doesn't actually result in a shortfall at the end of the
       month and the postmaster doesn't therefore have to make
       that shortfall good, that is not quite the same -- that
       is much less important than the question whether
       a liability is impermissibly foisted on a subpostmaster.
       That is what Issue 1 was trying to get at.
           So by all means your Lordship should consider
       whether and to what extent there was a likelihood of
       bugs causing transient impacts.  I'm not suggesting you
       should ignore them.  But what I do suggest is, by the
       same token, nor should your Lordship ignore whether
       those bugs caused discrepancies that were caught by
       countermeasures either in the short or medium or longer
       term, or, on the other hand, were lasting discrepancies
       that became shortfalls and that required a subpostmaster
       to put his hand into his pocket.
           That is why the word "shortfall" is contained in
       Issue 1.  And by the way, it is part of the overall
       judgment of robustness that's called for pursuant to
       Issue 3.
           My Lord, the final point relating to branch
       accounts.  This is the most ingenious argument of them
       all on Issue 1.  In my submission it is sophistry.  The
       purpose I think, or I suspect, is to allow the claimants
       to shoehorn into Issue 1 a consideration of whether bugs
       in Post Office's back end systems and whether and to
       what extent the bugs in those systems took place.
           But there is a problem with that essential approach,
       which is that Issue 1 is about bugs in Horizon.  The
       back end systems which may result in TCs being issued,
       those back end systems are not part of the Horizon
       system and the TC process was deliberately excluded from
       the Horizon Issues because if there were to be a trial
       of all Post Office's reconciliation processes over the
       last 20 years that would involve millions of documents
       and take a six-month trial.
           Now, in my submission, the drafters of the Horizon
       Issue, of whom Mr Green may well have been one at the
       time, could never have dreamed that the investigation
       called for by Horizon Issue 1 would be as stunted as the
       claimants are now seeking to achieve.
           That brings me to Issue 3.  Here, two arguments are
       being run for which there's no hint in their written
       openings.  There, they appear to accept that the Horizon
       system was relatively robust.  Indeed, their suggestion
       appeared to be that they had always accepted that it was
       relatively robust.
           If we could look, please, at {A/1/10}.  This is the
       second half of paragraph 17.1 of the claimants' written
       opening.  We don't need to look at the first half.  It
       says at the top:
           "This reflects language pleaded in the GDef, and
       indeed 'robustness' has been one of Post Office's
       'narrative boxes' and a favoured term in Post Office’s
       public relations pronouncements ... Coincidentally or
       otherwise, it has also featured in the NFSP's defence of
       Post Office, relied upon by Mrs van den Bogerd.
       However, as the Claimants made clear in their GReply,
       whereas the Claimants'," I think it must be claimants'
       case, "is that it is relatively robust and has become
       more robust over time – but not so as to be an answer to
       the Claim (and in so far as 'robustness' has, in this
       case, a sufficiently clear meaning – addressed further
       herein)."
           So they are toying with whether robustness has
       a meaning, but there they purport to say that relative
       robustness was actually accepted in their reply.  That's
       always been their position.
           That is the complete opposite of what the claimants
       are now saying.  They are now trying to ditch their own
       expert whilst still purporting to laud him to the skies
       in their written and oral submissions.
           Their first argument is that Issue 3 raises one
       point, not two: robust and extremely unlikely.  It seems
       to be an attempt to suggest that robustness can have no
       meaning other than that.  Well, my Lord, whether
       robustness has a meaning and what meaning it has is not
       in issue between the experts.  In JS3 at paragraph 3.1
       they both agree that it's relatively robust.
           We have a meaning from Mr Coyne.  He said
       "relatively robust" means performing well compared to
       similar big systems.  And those similar big systems
       require transactions to be handled properly in the
       overwhelming proportion of cases, and that they require
       the system to have lasting errors of a fraction of
       a percentage.
           My Lord, what that means is that when faced with any
       given transaction, the generic likelihood of that
       transaction being erroneous is extremely small.  In
       other words, it is extremely unlikely to be the cause of
       shortfalls.
           Clearly I'm not submitting to your Lordship that
       means that in any given case your Lordship should reject
       any suggestion that any accounts are wrong.  I'm not
       suggesting that for a moment.  I'm simply saying this is
       a trial of generic issues, and at a generic level,
       absent particular circumstances, and there may be
       several, any given set of accounts is overwhelmingly
       likely to be reliable.
           Now, it is worth pausing for a moment to note some
       other things that Mr Coyne agreed.  And if we could pick
       it up at {Day14/18:1}, he agreed at the bottom of
       page 18.  Picking it up at line 20 and going over the
       page to page {Day14/19:1} -- I said:
           "Question:  No, I'm not asking you, Mr Coyne -- I'm
       not suggesting to you that you have been asked to decide
       on whether any particular claimants' claim is right or
       not, what I'm suggesting to you is that the context in
       which these -- given the context in which these issues
       arose -- were drafted, and given the pleadings by
       reference to which they were drafted, it was obvious
       that the purpose of those issues was to assist the court
       so that it could use the judgment that will be produced
       in this trial as a basis for making ultimate decisions
       in ultimate breach claims by claimants?"
           Mr Coyne said:
           "Answer:  In a later trial?"
           I said:
           "Question:  Yes."
           He said:
           "Answer:  Yes, I was aware of that."
           I said:
           "Question:  Isn't that the main reason why we are
       here?"
           And he said:
           "Answer:  Well, it is certainly a reason why we are
       here, yes.
           "Question:  To enable the court to make useful
       findings as to the general likelihood of any transaction
       being wrongly recorded in a particular case?
           "Answer:  Yes."
           Then if we move on to page {Day14/25:9}, there was
       a passage of evidence from line 9 through to page
       {Day14/26:15}.  Perhaps I could ask your Lordship to
       read that.
   MR JUSTICE FRASER:  From line 9 of page 25?
   MR DE GARR ROBINSON:  25.  (Pause)
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  So what Mr Coyne accepts there is that
       robustness involves two things.  One is preventing
       errors from arising in the first place, but the other is
       having countermeasures to deal with errors when they do
       arise, hence the concept of lasting impacts.
           At the bottom of page {Day14/26:1} I put to him:
           "Question:  So robustness is the very concept which
       underlies the issues we have been discussing for the
       last half hour, yes?"
           And he says:
           "Answer:  Yes."
           He further accepted that the concept of robustness
       was a mature subject which was the subject of study, and
       that's at page {Day14/31:18}.  Picking it up at line 18,
       I say:
           "Question:  You agree robustness is an important
       concept?"
           He says:
           "Answer:  Yes.
           "Question:  You agree it is deployed very frequently
       in the IT industry?
           "Answer:  Yes.
           "Question:  It is a subject of academic study,
       isn't it?
           "Answer:  Yes."
           Then picking it up on page {Day14/32:10}:
           "Question:  ... isn't it obvious, doesn't it follow
       as night follows day, that the ultimate question being
       wrestled with by the concept of robustness is how well
       are the risks faced by a system guarded against?  In
       other words, what are the risks remaining after you have
       taken the countermeasures into account?"
           And he says:
           "Answer:  Yes ..."
           And I invite your Lordship to read the rest of his
       sentence.  (Pause)
           My Lord, I won't take your Lordship to the
       transcript but he went on to accept that it is possible
       to benchmark robustness against other systems, and
       against those other systems that are similar, that are
       comparable, it compares well.  My Lord, that's at
       paragraph 365 of our submissions but also {Day14/41:23}
       to page {Day14/42:6}.
           Critically, comparable systems require the
       overwhelming majority of transactions to be handled
       properly.  They require that there should only be a tiny
       proportion of lasting errors of a fraction of
       a percentage.  My Lord, that's at {Day14/56:1} to
       {Day14/59:1}, and in our closing submissions it is
       paragraphs 378 to 380.
           So all in all Mr Coyne accepts the importance of the
       concept of robustness, the reality of the concept as
       a concept that's the subject of academic study and
       practical application in the IT industry, and he accepts
       that a consideration of countermeasures is an important
       aspect of forming a view on robustness.  And my Lord,
       your Lordship will see that point made at paragraph 390
       of our closing submissions.
           At paragraph 391 we point out that he has sufficient
       information to form a judgment on robustness.  So that
       was something of a lemma when discussing the first
       argument that the claimants run in relation to Horizon
       Issue 3.
           I now come to the second argument.  This is the
       suggestion that the drafters of Issue 3 had in mind some
       sort of conditional probability.  It is so bold as to be
       impressive.  Let me see if I can find ... (Pause)
           If your Lordship looks at Horizon Issue 3 {C1/1/1}:
           "To what extent and in what respects is the Horizon
       System 'robust' and extremely unlikely to be the cause
       of shortfalls in branches?"
           Now, this is an argument of which a Platonic scholar
       would be proud.  They don't say extremely unlikely to
       cause shortfalls in branches, they say to be the cause
       of shortfalls in branches.
           So Issue 3 is not about the probability of causing
       shortfalls but the probability of something being the
       cause of a shortfall once a shortfall has arisen.
           My Lord, I would respectfully submit that that
       subtlety would obviously not have occurred to anyone at
       the time, and bearing in mind the first argument that
       the claimants are running, namely that robustness and
       extremely unlikely need to be put together, it would be
       a very curious argument to be running in any event.
           My Lord, the claimants should have ten out of ten
       for ingenuity with this argument.  Their obvious
       intention is to avoid their essential problem that with
       3 million sets of branch accounts, ignoring for the
       moment that up to 2005 accounts were weekly, that the
       evidence shows that relatively speaking there were
       hardly any bug impacts and the evidence suggests that
       there are even fewer, infinitely fewer remote access
       impacts, and that's a big problem for them.  So what
       they want to say is there's some smaller number of
       shortfalls which, very conveniently, have not been the
       subject of evidence so no finding can be made about
       them.
           The essential endeavour in this argument, all this
       time and money having been spent in preparing for this
       trial, is to put a block to the determination of Issue 3
       because neither party has thought to engage in any
       statistical analysis of the number of shortfalls versus
       the number of bug branch impacts.
           My Lord, in my respectful submission that is simply
       not an argument that it is proper to run at the end of
       a trial with no advance notice.  If they were going to
       run that kind of argument they should have raised it
       before the evidence was even prepared so that the
       parties could have addressed the point.  And I rather
       suggest that if the point had come up your Lordship
       would very easily have simply applied exactly the same
       language that's used in Issue 1: to cause apparent or
       alleged discrepancies or shortfalls in branch accounts.
           One of the curiosities of this argument is that they
       are suggesting that the mental process of the person
       that drafted Horizon Issue 3 was completely different
       from the mental process of the person who drafted
       Horizon Issue 1.
   MR JUSTICE FRASER:  Now, these issues I seem to remember,
       but I might be misremembering, were agreed by both the
       parties, weren't they?  I don't recall being involved in
       the detailed drafting of the issues.
   MR DE GARR ROBINSON:  I don't believe your Lordship was.
       I wasn't here then but I don't believe your Lordship
       was.
   MR JUSTICE FRASER:  I can go back and read the transcript of
       the hearings but I seem to remember I was presented with
       the proposed issues and I approved them.  Is that right?
   MR DE GARR ROBINSON:  I think that is right.  But, my Lord,
       overall my submission is that this is a transparent and
       desperate attempt to frustrate the plain intention of
       the people that drafted Horizon Issues 1 and 3 to
       prevent clear findings being made of obvious practical
       utility and to replace them with findings that have no
       practical meaning whatsoever.
           I would urge your Lordship not to be distracted by
       last-minute swerves of this sort.  Your Lordship will
       already understand that my submission is that the
       claimants are trying to sideline the most important
       issues and to distract the reader with isolated examples
       put forward in the hope of giving the impression that
       they have rather more widespread impact than is
       justified by the evidence.
           Let me give some examples of making that submission
       good.  The first one, in their written closing they
       start on page 1 with remote access.  That's their first
       point even though remote access is clearly a second
       order issue.  Mr Coyne effectively admitted in his
       cross-examination, and I will be taking your Lordship to
       it in due course, that the impact of remote access on
       branch accounts was de minimis.  He didn't use that
       phrase.  That's where we got to in my submission.
           But it said in the closing submissions, and my
       learned friend repeated roundly yesterday morning, that
       there is an open back door to the system.  That's said
       in paragraph 2.  And in paragraph 5 they build on that
       by saying that there is unfettered remote access.
           Now, it is intended, I surmise that it is intended,
       to be a headline-catching metaphor, but in my submission
       it is an illuminating and quite useful one, and I am
       sure this isn't intended.  The concept or the metaphor,
       the picture, of an open back door, it is not an open
       back door onto the street, it is an open back door, if
       you want to call it that, onto a walled garden,
       consisting only of an elite group of highly trained
       professionals, the SSC, who require months of training
       before they are even allowed in.
           Now the experts may agree that APPSUP privileges,
       that privileged user privileges, should not be
       permanently available to that many people and that when
       people in the SSC wish to use it there should be
       a process they go through to get temporary
       authorisation.
           That may well be the position, but that doesn't mean
       that APPSUP was actually misused or that there were any
       harmful events as a result of the fact that the facility
       was there available for the SSC and then, as time went
       on, it became available only for the most senior members
       of the SSC, not to the new members.
           There isn't evidence, my Lord, of a single harmful
       event that was the result of any APPSUP use.  Indeed,
       there's no evidence of any use of APPSUP to change or
       delete transaction data.  None at all.  But the
       important point is that the people to whom the door was
       left open were trustworthy professionals.  They weren't
       burglars waiting to get in through the back door once
       the homeowner had gone to bed.
           They are not going to run away with any money and
       they are not going to start using APPSUP as a means of
       doing creative vandalism in the branch network.  And to
       the extent that it is suggested otherwise, there is no
       evidential basis for making that suggestion.
           Another example of distraction with little stories
       is the rather elaborate business we had yesterday
       afternoon in which an impression was given that there is
       a longstanding problem of duplicate losses in the system
       of which Post Office has always been aware.  That's not
       what the evidence showed at all.  But you speak quickly
       and you go to particular sentences in particular
       documents, and hey presto, you have created that
       impression.  That is the essential endeavour that the
       claimants are engaging in in this trial.
           Another example, the most extraordinary reliance
       that my learned friend at the last minute places on some
       internal Post Office documents from 2016 and 2017,
       largely from those years.  What the claimants seem to be
       wanting to do is to substitute the opinions of the
       experts on matters on which they agree by reference to
       some internal management papers about how they are
       planning to improve and upgrade their own back end
       processes and the IT systems more generally, including
       Horizon.
           But I ask forensically: if that's all you need, why
       have so many millions been spent on experts at all?  The
       important thing about those documents is none of them
       say anything about whether bugs create discrepancies in
       branch accounts.  They are not about that at all.  They
       don't purport to grapple with Horizon Issues, and it is
       only if you do not consider them carefully that you
       might be confused for a moment into thinking that they
       are even relevant.
           Let me make that point good by just reference to one
       document {F/1161/87}.  It is a document with intent to
       supply attached to a board report.  I'm afraid I don't
       have page 1 to hand.
   MR JUSTICE FRASER:  It has not come up yet, I'm afraid,
       I think.  Can we go to F/1161?
   MR DE GARR ROBINSON:  I'm sorry, I misread it.  It is my
       fault.  It is {F/1611/87}, I do apologise.
   MR JUSTICE FRASER:  The dreaded spreadsheet.  Where are we
       going?
   MR DE GARR ROBINSON:  16/11.  Is it possible to become
       dyslexic in your 50s?  I don't know.
   MR JUSTICE FRASER:  Well, the F bundle generally is not easy
       to use because it is so big, I think.  Or the F folder.
       That is a PEAK.
   MR DE GARR ROBINSON:  This isn't it.  1611.  I'm looking
       at -- page 87?  1611.
   MR JUSTICE FRASER:  I think this is 16/11 and we want 1611.
   MR DE GARR ROBINSON:  We need to agree a protocol for this.
           1611, page 87, please.  {F/1611/87}.
           This is a board agenda, and if we go to page 87 this
       is a technology strategy update.  I don't want to put
       words into my learned friend's mouth, but the author is
       Rob Houghton who is the chief technology officer at
       Post Office, and so this may be one of their golden
       documents, one of my learned friend's favourite
       documents.  But let's just have a look at it:
           "Context.
           "This document forms an update to the IT Strategy
       approved in July 2016 by the PO Board.  In July we
       outlined that IT was not fit for purpose, expensive and
       difficult to change."
           Stopping there.  If your Lordship were a journalist
       you would think that looks really bad, but let's read
       on.  There is a list of questions addressed in this
       report, and then:
           "Conclusion.
           "Since reporting on the IT strategy in July; the
       landscape continues to shift with increasing cyber
       threat, deteriorating market conditions and several
       significant service outages to our back office systems
       ..."
           Your Lordship will note back office and not Horizon:
           "... and digital infrastructure.  These reinforce
       and give further urgency to, rather than change ..."
           There must be a missing word there:
           " ... the strategic roadmap."
           Then:
           "In the 5-year overlays, we have aligned our IT
       strategy to the business strategies and developed
       roadmaps for the digital, infrastructure and Horizon
       journeys.  Approval of the overlays is critical to
       improve our control environment, reduce costs and
       achieve our business strategy."
           So improving the control environment, reducing costs
       and achieving a business strategy.  Then two bullet
       points down:
           "Our view of the operational service risk has
       matured and we remain outside of our risk appetite zone
       in key operational areas.  The infrastructure related
       change programmes focus on reducing these risks over
       time."
           So your Lordship will see the general points being
       made.
           If one goes to page {F/1611/88}, the first bullet
       point says:
           "Supplier negotiations are underway."
           Second bullet point says:
           "There are a 'critical few' dependencies that drive
       reduction of the cost base and future business support
       in the most material way ..."
           So your Lordship has seen what they want is to save
       costs, they want to upgrade the system, there are all
       sorts of objectives they think they can achieve:
           "We need to quickly rationalise and resolve
       misaligned contracts enacted to support legacy IT,
       obsolescence and lack of PO technical competence
       particular focus on Fujitsu and Accenture.
           "'Thin Client' delivery success.
           "Appetite for reduced service levels and number of
       branches/users.  We are developing a hypothesis to offer
       two/three tier service offering to branches to reduce
       cost and target service delivery."
           Then on page {F/1611/89}:
           "The IT strategy outlined a view of the current
       state of technology within PO as failing to meet PO
       aspirations on any assessment lens (cost, risk, delivery
       or service).
           "The strategy laid out key interventions:
           "Improve IT - cost reduction, operating model
       changes, supplier renegotiations, capability hires,
       communications and engagement."
           "Reduce operational and security risk - IT
       infrastructure programmes, Back office transformation,
       Security Transformation programmes and improved
       Environment Monitoring/Management, collectively to take
       back control of the management of IT Services."
           That's a reference to outsourcing; they are planning
       to bring things clearly back in.
           Then, my Lord, over the page {F/1611/90},
       paragraph 4 at the top says:
           "Technology sits at the heart of the wider business
       strategy set out in our 5 Year plan ...
           Then the last sentence before the first bullet:
           "Ultimately our technology strategy should be judged
       in terms of the benefits it drives for each of our key
       customer groupings:
           "for end consumers ..."
           Then it talks about them.  Then for host retailers,
       that is postmasters:
           " ... technology is critical to simplifying our
       offer, removing the complexities which are frequently
       cited as the biggest deterrent to running a post office.
       Our network IT strategy is working towards the
       development of smaller point of sales solutions
       (including EPOS integration) that are more easily
       integrated alongside the main retail till, driving
       operational benefits for the retailer and quicker
       transactions for customers."
           Stopping there.  So the main branch, well, the first
       branch benefit or objective that's identified, nothing
       to do with the reliability of Horizon, it is to do with
       enabling people running their own retail business to
       plug the Post Office IT system into their existing EPOS
       systems to make it easier for them, less of a barrier
       for them to agree to become a Post Office branch.
           Then it goes on to say:
           "Stability of service is also vital for our
       postmasters, ensuring they do not suffer the significant
       business detriment that can arise from prolonged outages
       ..."
           So there's a problem that is identified: prolonged
       outages.  Your Lordship may think it appropriate to note
       that that's the only problem that's relating to branches
       that is identified in this entire paper, as far as I'm
       aware.
           Then, my Lord, page {F/1611/98}.  I will take
       your Lordship to this because this is quoted by my
       learned friend in his submissions.
           At paragraph 25, it says:
           "There are tensions in each contract.  Our approach
       and risk appetite around public Contract Regulations are
       likely to also inform outcome ..."
           First bullet point:
           "Fujitsu - a 6 year fixed contract signed with PO
       which continues to invest in legacy and obsolescence
       where FJs own strategy globally is to move to Cloud.
       Success is to re-contract to prime UK Cloud partner,
       align innovation, re-architect and position as a true
       retail partner."
           So there's the word obsolescence.  My learned friend
       loves the word obsolescence that's quoted.  But what is
       actually being talked about?  Moving to the cloud.  It
       is an improvement, it is not the fixing of a defect.
           Then, my Lord, over the page {F/1611/100}, I'm
       afraid this is in management speak, I find it hard to
       read with a straight face, but paragraph 30:
           "Our target state is to deliver an elastic, agile,
       secure, future proof, low cost model for the Post Office
       without undue reliance on specific suppliers."
           Then in 34 it says:
           "For Back Office: A Back Office system that provides
       a stable and robust financial system and MI/Analytics
       capability."
           Then "For Retail", it says:
           "The Horizon (HNGX) platform is at the end of its
       life and needs replacing.  Previous attempts to move
       away from HNGX platform, specifically with IBM, have
       been unsuccessful.
           "The current plan is to transition from HNGX to the
       updated HNGA (part of the Branch Technology programme)
       platform from April 2017 will incur (budgeted) capex of
       £16m."
           So they are spending £16 million on an improved
       version of the existing Horizon system.
           Then over the page that's made clear with the next
       bullet point {F/1611/101}:
           "However, whilst HNGA runs on updated Windows
       software, fundamentally its architecture is the same.
       This means that it remains a 'closed' and inflexible
       platform that cannot support the business' strategic
       objectives and is a drain on respective PL's.  HNGA will
       work and support our business BUT it will not enable us
       to compete and succeed with Clients retailers or
       Customers."
           Then there is an explanation of this thin client
       concept, and I don't need to take your Lordship to that.
           So I ask forensically: what does this document show
       us about how good the Horizon system is?  What does it
       show us about its likelihood of creating false
       discrepancies or false shortfalls in branch accounts?
       What does it show us about the robustness of the
       existing system and the reliability of the figures in
       it?  Answer: absolutely nothing.
           It is not about those questions, my Lord.  And this
       demonstrates in really graphic terms the dangers of
       taking little snippets from documents and pulling them
       together and seeking to create an impression that's far
       larger than the document from which the snippets are
       drawn.
           By relying on documents such as this, in my
       respectful submission, the claimants are inviting
       your Lordship to make a category error.  They are
       relying on documents with a completely different focus
       in order to establish a position in relation to the
       Horizon Issues which is inconsistent with the agreement
       between the experts.  They are trying to wallpaper over
       that inconvenient agreement between the experts by
       focusing on different points, by focusing on the
       position now, when of course it must be remembered that
       most of the claims made in this case relate to
       a position many years ago.
           My Lord, that entire approach, in my submission, is
       the very antithesis of what this trial is supposed to
       be.  If there is to be an analysis of the document it
       should look and see what particular point in time the
       document operates, what precisely the document says,
       what can properly be drawn from the document and what
       cannot properly be drawn from that document.  But that
       is not an endeavour which, in my submission, the
       claimants are interested in doing.  Just as, I say this
       with some regret, it was not an endeavour which Mr Coyne
       was particularly interested in doing in his two reports.
       When he came to give evidence the position changed.
           If documents like this do my learned friend's job as
       he seems to think, I do ask rhetorically why have we
       just spent four weeks trying this case?
           Another aspect of these documents which really is
       very striking is the attempt that my learned friend
       makes to criticise Dr Worden for not being aware of
       them.  There was a clear implication in the tone of my
       learned friend's questions of Dr Worden.  You are not
       aware of these questions, the implication being that he
       really ought to be as a reputable expert.  And that
       implication is made explicit in the claimants' closing
       submissions as if the documents represented exactly what
       any expert should be looking at instead of looking at
       the architecture, looking at the countermeasures and
       looking at the operation of the system and seeing how it
       worked, which is what Dr Worden has actually done.
           But, my Lord, there is a problem with that
       criticism.  The problem with that criticism is that
       Mr Coyne doesn't refer to any of these documents either.
       They weren't mentioned in his reports.  They weren't put
       to him in examination-in-chief.  They certainly weren't
       put to him in cross-examination.  I was blissfully
       unaware of them until they were pulled like a rabbit out
       of the hat when Dr Worden was giving evidence.
           So perhaps conveniently for the claimants, I wasn't
       able to ascertain Mr Coyne's views on those documents.
       I certainly didn't have a realisation that that was
       something I ought to be doing.
           Now, my Lord, in my submission, the inevitable
       inference is one of two things.  Either Mr Coyne wasn't
       aware of them either, so by criticising Mr Coyne my
       learned friend is also criticising his own expert, or,
       which may be more likely --
   MR JUSTICE FRASER:  You mean by criticising Dr Worden?
   MR DE GARR ROBINSON:  I'm so sorry, I do this too often.  Or
       Mr Coyne didn't think these documents were sufficiently
       material to the Horizon Issues to be worth referring to.
           My Lord, either way this last-minute tactic by the
       claimants to change the narrative in my submission is
       completely inappropriate.  They don't undermine
       Dr Worden's view on the Horizon Issues any more than
       they undermine Mr Coyne's views that Horizon is
       relatively robust and, indeed, is more robust now than
       it has ever been before.
           My Lord, I would like now to say a few words about
       bugs affecting branches.  Mr Coyne says that he and
       Dr Worden together found 29 potential branch-affecting
       bugs in PEAKs and KELs, and in his oral evidence he said
       that given the reading he had done and the searches that
       he and his team had performed, he didn't think there
       were more than 40 bugs overall in PEAKs and KELs.
           Now, of the 29 that he has found, he now says that
       22 are lasting; in other words, 22 are of a type that
       wouldn't, or might not ordinarily be caught by
       countermeasures.  Pro rata that suggests that the
       overall number of lasting bugs in PEAKs and KELs would
       be around 30, although I have to say I didn't put that
       to him.  I didn't realise that there would be this shift
       from 29 to 22 when we discussed the point.
           Now, the claimants absolutely hate that logic.  So
       they attack the concept of a lasting impact.  In his
       written closing and in his oral submission yesterday my
       learned friend said that Mr Coyne's use of the term
       "lasting impact" in the joint statement -- that's
       paragraph 115 of JS2.  Perhaps we could look at that.
       It is at {D1/2/29}, paragraph 1.15.  This is agreed:
           "The number of distinct bugs, for which the experts
       have seen strong evidence of the bug causing a lasting
       discrepancy in branch accounts, is between 12 and 29."
           Now, that is something which Mr Coyne has agreed.
       It is language that he has used.  It is obvious what he
       meant.  He means not transient, and your Lordship will
       see the reference to transience in paragraph 1.10 at the
       top of the page.  That is an RW statement.
           These are bugs whose impacts are not caught by some
       countermeasure and so one can't expect that they would
       necessarily be corrected.
           Now, Mr Coyne accepted all of that, he accepted what
       "lasting" meant in cross-examination.  And I frankly
       don't understand the attempt to suggest now that he
       somehow didn't.
           The claimants themselves have deployed the concept
       of lasting in their own opening.  My Lord, that's at
       {A/1/35}, paragraph 108:
           "As noted above, in Joint 2, the experts have
       resolved some but not all points of difference
       (eg Dr Worden now accepts that there is strong evidence
       of a lasting discrepancy on branch accounts from 12 of
       the 29 bugs which Mr Coyne identifies as having such an
       effect."
           So there we have two statements in that paragraph.
           First of all, they themselves are deploying the
       concept of lasting effect.  Secondly, they are clearly
       saying that they clearly thought at that time that
       Mr Coyne was saying that there were 29 bugs which had
       a lasting effect.  And your Lordship will recall the
       cross-examination on his last day of evidence about
       that.
           So against that background it is difficult to
       understand what the claimants mean when they say that
       the use of the word in paragraph 1.15 was a compromise.
       Unless they are seeking to go behind it in some
       impermissible way, an agreement was made in without
       prejudice discussions between the experts.  I can't
       imagine they are doing that, but I can't imagine what
       else they are doing.
           My Lord, what one gets from paragraph 108 is that
       while the claimants were entirely comfortable with the
       concept which was fully deployed and explained in
       Dr Worden's first report, as the evidence has come out
       and as Mr Coyne's own evidence on these points has come
       out, they have had second thoughts.  Now that Mr Coyne's
       views have been properly explored, they want to
       backtrack.
           In my respectful submission, that this process is
       being engaged in is actually a good illustration of what
       cross-examination can achieve.  Nowadays it is
       fashionable to suggest that what one gets by
       cross-examining witnesses is very limited and shouldn't
       we have trial mainly by reference to the documents?  In
       my submission, this trial is a good example on both
       sides of points being established in cross-examination
       that wouldn't be established without it.
           I make the same submission about Mr Roll's
       cross-examination.  My learned friend is entitled to
       make the same submission about some of my witnesses.
       But be that as it may, it is important to recognise the
       significance of Mr Coyne's evidence on the number of
       bugs to be found in PEAKs and KELs and the proportion of
       lasting bugs that are liable not to be caught by
       countermeasures.  He and Dr Worden disagree on
       particular bugs, and your Lordship has our submission on
       the bugs in appendix 2 to our closing, but let's take
       Mr Coyne's views at face value.
           At {Day15/94:1}, he said if you get a bug with
       a branch impact there will be a KEL for it.  My Lord,
       that is addressed at paragraph 352 of our closing
       submissions.
           At page 122, unless your Lordship would like me to
       I'm going to go too fast to allow the reading of the
       transcript --
   MR JUSTICE FRASER:  No, but the transcript I think you are
       just referring to has just come up and that's him
       agreeing to your question that:
           "Question:  ... generally speaking, if you get a bug
       ... once it is detected there will be a KEL ...?"
   MR DE GARR ROBINSON:  Yes.  My Lord, {Day15/122:1} Mr Coyne
       says he has now reviewed between 5 and 6,000 KELs.  He
       says at line 24:
           "Answer:  ... probably ... between 5 and 6,000."
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  At page {Day15/123:1}, he says that
       his team will have reviewed an additional 1,000 KELs.
       So between he and his team there has been a review of
       between 6 and 7,000 KELs of the 9,500-odd that have been
       disclosed.
           At page {Day15/123:1} he says that all the bugs that
       have been found come to 29.  And he goes on to say that
       the total number of bugs likely to be found in the KELs
       is likely to be no more than 40.
           My Lord, at page {Day15/128:16} Mr Coyne agrees that
       his search processes are reliable and will have
       successfully identified the majority of bugs identified
       by the SSC during the operation of the PEAK and KEL
       system.
           So there aren't that many more bugs to be found even
       if he had had more time to look.
           Your Lordship will also recall, I'm afraid I don't
       have the reference in my note, Mr Coyne saying that it
       is possible to identify the number of impacts of
       a particular bug by looking at the PEAKs, and that's
       quite a reliable system too.  And he then shamed me by
       indicating that he had given an indication in JS2 as to
       the number of impacts.
           My Lord, on this side of the court we have done our
       best to do a calculation --
   MR JUSTICE FRASER:  Was it in JS2?  I thought it was in his
       report.  Was that when you took him to the graphic?
   MR DE GARR ROBINSON:  It was JS2.  Second column.
   MR GREEN:  It is actually both.
   MR DE GARR ROBINSON:  My learned friend helpfully says it is
       also in his report.
   MR JUSTICE FRASER:  No, when you said he had shamed you
       I thought that might be when you said you'd put
       a question to him and he then pointed to a graphic.
   MR DE GARR ROBINSON:  I think I had missed it and he pulled
       me up on it, very properly.
           On this side of the court we have done our best to
       work out how many impacts are suggested, and I'm not
       suggesting for a moment that this is accepted but it
       appears to be in the region of 545/550 branch impacts in
       very round numbers.
           So that would suggest less than 20 impacts per bug,
       and I would ask your Lordship to bear that statistic in
       mind.
           I wonder whether this would be a convenient moment?
   MR JUSTICE FRASER:  I am sure it would, yes.
           When you say on your side you have identified it,
       that's the one in your closing?  The 545/550, that's in
       your closing submissions?
   MR DE GARR ROBINSON:  It is in a footnote to our closing.
       I can give you the reference if your Lordship would like
       after the break.
   MR JUSTICE FRASER:  I do not think it is in any of the
       evidence, is it?
   MR DE GARR ROBINSON:  No, it isn't.  What has been done --
       I'm afraid I haven't done the process, but what has been
       done is you look at the column, you and try and work out
       what that implies.  It is not a simple counting process,
       one has to use a degree of judgment.  It is footnote 794
       of our closing submissions, my Lord.
   MR JUSTICE FRASER:  Thank you very much.  All right.  We
       will have ten minutes.  We will come back in at
       11.55 am.
   (11.47 am)
                         (A short break)
   (11.55 am)
   MR DE GARR ROBINSON:  My Lord, talking about bug numbers and
       bug impacts, it may be helpful at this point to look at
       one of Dr Worden's calculations.  If I could ask
       your Lordship to go to {D3/8/1}.
           Thank you very much.  Your Lordship will have seen
       this before.  It is worth spending a few minutes so that
       we all understand it.
           This is a calculation which involves all sorts of
       financial impacts and also involves an estimate of the
       number of bugs detected and undetected in a system over
       a period of 20 years.
           It starts at row 3, but your Lordship will see the
       label in column B.  So I'm working behind those column B
       labels.  So row A is "mean number of branches in PO
       network, 1999-2018".
           Your Lordship may recall Dr Worden being taken to
       task because his number of 13,560 was from 1999, not
       from 2000.  I think his report did say 2,000, but in
       actual fact, as is clear from his spreadsheet, it was
       from 1999.  So that is the number of branches, mean
       number of branches over that period.
           Then row B is years of Horizon.  19 years.  Total
       branch months in C.  Nearly 3.1 million in branch
       months.  So that is 3.1 million sets of accounts, as it
       were.  But Dr Worden, your Lordship will be aware, has
       rounded that down to 3 million.  In his reports he talks
       about 3 million.  He could of course have said 3.1, but
       he said 3 because that was sufficient precision for him.
           Then there is the scaling factor in relation to
       which some time was taken in Dr Worden's
       cross-examination, and your Lordship will see --
       actually, this is a good place to see.  Column C is
       central estimate.  That is Dr Worden's central estimate,
       what he thinks is likely to be the case, and D is his
       conservative estimate, because as your Lordship will
       recall, he deliberately makes assumptions in favour of
       the claimants to increase likelihood or reduce the
       likelihood of things happening so as to increase the
       number of bugs and so on.  And that's his conservative
       estimate.  He explains all this in his report.
           Your Lordship will see that there is a scaling
       factor of 0.45 central and he just pushes it up by just
       over 10% to 0.5 conservative.  We needn't worry about
       scaling for these purposes.
           Row E is another scaling number.  Then row F is the
       total number of claimed shortfall.  And as your Lordship
       ascertained yesterday, that's taken from the schedules
       of information and is explained in Dr Worden's first
       report.
           Row G is:
           "Total claimant branch months (sets of monthly
       branch accounts for claimants)"
           Or, indeed, any other SPMs with similar
       characteristics.  That is 52,000.  So of the
       3 million-odd monthly branch accounts, ignoring for the
       moment until 2005 they were weekly, 52,000 was occupied
       as it were by claimants.
           Then H is "scaling factor".  I'm not going to talk
       to your Lordship about that.  Then here's an assumption
       in row L:
           "Maximum number of KELs with potential impact on
       branch accounts, based on limited sampling of KELs."
           And his central estimate is 100.  Does your Lordship
       see that?
   MR JUSTICE FRASER:  Mm.
   MR DE GARR ROBINSON:  And his conservative estimate is 200.
       It is quite important to note that those two estimates
       are explicitly based upon limited sampling of KELs.
       Dr Worden didn't do what Mr Coyne did.  What Mr Coyne
       did is he looked at virtually all the KELs; he and his
       team looked at between 6 and 7,000 of the 9,500.  That's
       not what Dr Worden did.  What Dr Worden did is he looked
       very carefully at a limited number of KELs.  He did
       a number of passes through the KEL system, one of which
       was he looked at 200 KELs at random, and another pass
       that he did was he looked at KELs that referred to
       a pound sign, and a third pass that he did was he looked
       at KELs that had been referred to in Mr Coyne's expert
       report.
           The result of those enquiries are set out in
       appendix D to his first report, and then of course in
       his supplemental report he has looked at more KELs, so
       there is an expanded appendix for the 200 KELs that he
       looked at.  But on any view he had only looked at
       a small proportion of KELs; not statistically
       insignificant, but hardly occupying the whole ground.
           It is important to note, and I will be coming back
       to this, that Mr Coyne has now looked at the whole
       ground or more or less at the whole ground.  He has
       looked at over 6,000, over two-thirds, of the KELs.
       What's more, he has done intelligent searches through
       all of them.  What's more, he's done intelligent
       searches through the 220,000 PEAKs.
           As I think he may have demonstrated to your Lordship
       already, his opinion is that he has found most of the
       bugs, potentially branch-affecting bugs that are out
       there to be found.
           I hope I'm not oversimplifying his evidence when
       I say that.
           And he has found -- his view is that there wouldn't
       be more than 40.
   MR JUSTICE FRASER:  Mr Coyne's view?
   MR DE GARR ROBINSON:  Mr Coyne.  Am I saying --
   MR JUSTICE FRASER:  No, no, you switched to "his", so
       I wanted to be clear.
   MR DE GARR ROBINSON:  Mr Coyne's view is that there are not
       more than 40, and that is compared with 100 in row L,
       conservative Dr Worden and the 100 central, 200
       conservative.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  Those have been superseded, I would
       respectfully submit, by Mr Coyne's own analysis.
           If one takes into account the revelation on the last
       day of his cross-examination that of the 29 bugs that he
       has found that scale up to 40, he is now of the view
       that only 22 of them are lasting, so if one were
       interested in only lasting bugs, the figures to put in
       row L would be 30, rather than 100 and 200.
           If one does that, my Lord -- your Lordship may,
       I fear, and I'm sorry to say that your Lordship is
       probably better at this than I am, but even I can do
       this -- that one can insert the figures into the
       spreadsheet, one could put the figure of 30 or 40 in
       those two columns, C and D, and then see where you get
       to.  And where you get to is that at the bottom of the
       page, in row E2, maximum possible number of bugs, that
       changes from 145; if the figure is 30, it becomes 44.
           And would it be helpful if I talked you through how
       the calculation works?
   MR JUSTICE FRASER:  I think I can tell how it works.
   MR DE GARR ROBINSON:  You have it.  It is to do with various
       assumptions about KEL efficiency, and so on.
   MR JUSTICE FRASER:  Well, L -- yes -- L is going to change
       and that's the figure that's currently in N.
   MR DE GARR ROBINSON:  One very annoying typographical error
       that your Lordship will see in E2 at the bottom of the
       page, you see that E2 is defined as R/X?
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  Actually that should be L/X.  That's
       a typo.
   MR JUSTICE FRASER:  On the basis there isn't a R.
   MR DE GARR ROBINSON:  Well, on the basis that what it should
       be doing is it should be starting with the number of
       bugs in the KELs and then doing something with them in
       order to scale up to an estimate of a total number of
       bugs to include undetected bugs.
   MR JUSTICE FRASER:  So E2 equals L/X.
   MR DE GARR ROBINSON:  E2 equals L/X.  And on Dr Worden's
       central approach, if there were 30 lasting bugs
       detected, one would end up with 44 lasting bugs in
       total.  That's detected and undetected.  The figure
       would be higher, significantly higher, in D, but much
       lower than 672.
           Now, in the claimants' closing, it is quite
       interesting, it is suggested that there is a reasonable
       evidential basis for assuming that your average bug will
       have 40 or 48 affected branches, and that's worth
       noting, my Lord.  That's {A/5/177}, paragraph 1515.  We
       don't need to go to it.
           But on the basis of the results of Mr Coyne's
       enquiries in JS2 in the second column, where he has
       found 440- impacts, or 450-odd, one would imagine it is
       rather less than 40 or 48, could be closer to 20.  And
       just for the sake of illustration, if one took E2, the
       central estimate of 44 bugs, that's on the basis of 30
       lasting in the KELs, and one multiplied by 20, one would
       get a total of 880 branch impacts over 3 million sets of
       branch accounts over 20 years.  I say 20, I should
       say 19.
           That is a vivid illustration, in my respectful
       submission, of the kind of scale of the extent that we
       are really talking about when we talk about bugs in
       Horizon affecting branch accounts.
           But that's not the calculation that the claimants
       put to Dr Worden.  They rather like, although they
       refute his entire methodology, the figure that's
       currently in row E2 in column D.  They like the 672
       figure.  Your Lordship will see that in
       cross-examination they put to him that if you take 40 or
       48 branch impacts per bug and you multiply by 672,
       I think if you take 48 branch impacts you get something
       like 32,000 branch impacts.  Does your Lordship recall
       that evidence?
   MR JUSTICE FRASER:  I do.
   MR DE GARR ROBINSON:  And by that means Dr Worden, with some
       heroic mental arithmetic that I would not have been able
       to do, worked out that you would end up with one branch
       impact per claimant on average.
           Now, I am sure that my learned friend was quite
       pleased with that result and I am sure if you were
       a journalist you would think "Crikey", but it should be
       remembered that there are 561 claimants who are claiming
       £19.7 million in shortfalls.  On average that's about
       £33,000 each.  So if you have one claimant with one bug
       impact in their tenure, how do you get to a £33,000
       shortfall?  In my submission, that calculation on its
       own is another vivid illustration of the scale of the
       judgments that are really called for by the evidence in
       this case.
           But, my Lord, it goes further than that.  As is
       explained in our closing at pages 157 to 158, and
       perhaps I could ask your Lordship to look at that.  It
       is {A/6/157}.
   MR JUSTICE FRASER:  Just while that's coming up I think you
       said 19.7 million in shortfalls, but you mean 18.7.
   MR DE GARR ROBINSON:  Oh gosh, I do.  Absolutely.
       Thank you.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  If we could pick it up at
       paragraph 439:
           "If no scaling factor for small claimant branches is
       applied at all ..."
           So the table in paragraph 637 of Worden 1, and
       that's the same table we have been looking at, label D
       becomes 1, then label E -- your Lordship will recognise
       the 3.1 million-odd figure, H becomes 193,000 and so on,
       and then what that produces.  And that's explained in
       paragraph 440 on the next page {A/6/158}, 440.1:
           "For a bug such as the Suspense Account bug which
       occurs 16 times with a mean financial impact of £1,000
       ..."
           And your Lordship will recall Mr Coyne accepting
       this is one of the big ones.  Or your Lordship may
       recall.  I should not assume your Lordship has perfect
       recall of every single piece of evidence that's given in
       the case:
           " ... in order for there to be a 1 in 10 chance that
       a shortfall of £1,000 would be caused in a claimant's
       branch in any given month, there would need to be 19,000
       similar bugs ..."
           Because each bug is assumed to have 16 impacts or
       occurrences, that would mean 304,000 occurrences, or
       incidents they are called there.  So you are looking at
       19,000 bugs to give a 10% chance of causing a £1,000
       loss and you are looking at 304,000 branch impacts in
       order to have that result.
           And if the mean financial impact was smaller, let's
       assume it is £500, there would have to be 38,000 similar
       bugs and 608,000 incidents.  And if the mean financial
       impact were £100, there would have to be 190,000 similar
       bugs with over 3 million incidents.
           Now, my Lord, these are just illustrations but what
       they illustrate, or what they are intended to do is to
       give your Lordship a sense of perspective, a sense of
       scale as to what the evidence demonstrates as to the
       likelihood of bugs causing shortfalls in branch
       accounts.
           In my respectful submission, a useful touchstone,
       a useful yardstick for measuring scale is the claimants'
       claim.  That's not to suggest -- I'm absolutely not
       suggesting -- that this is a way of disproving the
       claimants' claim.  Indeed, this calculation that we are
       looking at here ignores any scaling factor, it just
       looks at average branches of the same sort of tenure as
       the claimants.  That's all.
           But it gives your Lordship a handle on the sense of
       how big the bug problem would need to be in order to
       have a material chance of generating the sort of losses
       that are being -- in fact, a small proportion of the
       sort of losses that are being claimed in this case.  And
       your Lordship may find that useful as a touchstone.  It
       certainly shouldn't be your only touchstone.
           But what touchstone do the claimants use?  What do
       they say about extent in relation to these Horizon
       Issues?  They say, and your Lordship will see that from
       the appendix to their closings where they very helpfully
       set out in a table what they say the answers are to each
       issue.  In relation to Horizon 1, Issue 1, 3, 4 and 6,
       those I hope are the extent of the issues that are
       extent questions.  They say material and significant
       risk.
           Now, that begs an important question: material
       compared with what?  Significant in comparison with
       what?  And in my submission the complete absence of any
       sense of scale is a complete giveaway.  To say material
       insignificance is not actually an answer to the Horizon
       Issues, it is an attempt to avoid answering them.
           My Lord, the point is just as stark.  Perhaps it is
       even more stark with remote access.  If I could go to
       our closing submissions.  That's {A/6/247}.  At
       paragraph 740 of our closing, perhaps I could invite
       your Lordship to read it.
           Mr Coyne accepted that any remote access work
       involving branch data is typically recorded in PEAKs.
       So if there is any remote access happening you will see
       it in a PEAK.  You may not have full details but you
       will see that it happened, typically.
           The relevant reference is {Day16/28:1}.  Then if one
       moves to the next page {A/6/249}, actually,
       paragraph 746:
           "Mr Coyne fairly accepted that he had identified
       relatively few instances of remote access being used to
       affect branch accounts, especially compared to the vast
       number of branch accounts over the life of Horizon."
           So I ask:
           "Question:  I would be right in thinking, wouldn't
       I, that of the PEAKs you have seen you found relatively
       few examples of remote access having been exercised?
       Would the answer to my question be right?
           "Answer:  I don't know exactly what the number will
       be, but it is tens, twenties --
           "Question:  Looking at your report it would be low
       tens, wouldn't it?  You haven't found hundreds?
           "Answer:  No, I haven't found evidence of hundreds,
       no."
           I ask:
           "Question:  So you have found, as I say, a
       relatively small number; relative to the fact that we
       are talking about 3 million branch accounts over the
       last 20 years, all you have actually found is a very
       small number which is less than 20 or 30, let's call it
       less than 30, would you agree with that?
           And his answer was:
           "Answer:  Yes."
           So when considering remote access, which is a big
       subject and by its very nature it is bound to be the
       subject of forensic interest, it is easy for lawyers to
       be considering that kind of issue and it is fun for the
       lawyers to do it because there is the Select Committee
       meeting at which Post Office gave evidence, and
       Post Office's response to the Panorama programme, all
       the things which engage the press and are in the public
       eye.  These things naturally focus attention, and not
       surprisingly -- I don't blame my learned friend for
       doing it, I am sure I would do it were I in his
       position -- that goes on page 2 of my learned friend's
       closing submissions.
           But if you take your eyes away from the pyrotechnics
       to stage left and you actually look at the Horizon
       Issues, you see that to call remote access a second
       order issue actually overstates its importance.  It is
       actually, if you think about it, a third order issue.
           You would need some remote access to change branch
       accounts.  Mr Coyne says he hasn't found more than 30.
       I respectfully submit the number is far lower than that.
           Your Lordship has seen what we say in our
       submissions but let's take him at his highest.  He says
       there is not more than 30.  Then you need error or
       malice which might have an adverse impact on branch
       accounts.  That, on any view, is going to be rare
       because we know from the evidence given by Mr Roll and
       the evidence given by Mr Parker that these things were
       done carefully.
           And no examples have been found of any remote access
       actually causing a discrepancy, and certainly not
       a shortfall in branch accounts.  Only one candidate has
       been put forward; that's {F/432/1}.  That's the $1,000
       bug.  Your Lordship has lengthy submissions about that
       in our closing submissions.
           We say as a matter of principle it is clear that the
       error was made in that case, if it was an error -- no,
       it wasn't an error.  The change to data that was made in
       that case which it is suggested had an impact on branch
       accounts was actually a change in back end data; it was
       an OCR making a change to data that was in the TPS
       system.  It wasn't any change to branch account data at
       all, it couldn't be because it was in the TPS system.
           So there is not one single, we submit, example given
       of any exercise of any remote access facility which has
       actually been shown to adversely have affected the
       branch account.
           So, on any view, the proportion of cases in which
       that happens is going to be small.  As I have already
       submitted to your Lordship, the remote access when it is
       done, it is done reluctantly, it is done professionally.
       There is a four eyes principle.  My learned friend has
       perfectly fairly drawn attention to what I think he
       describes as many examples of OCPs where the monitoring
       individual seems to be the same as the individual doing
       the change, from which it is inferred, and I don't know
       whether this is right or not, I'm not in a position to
       dispute it, that the four eyes principle has become two
       eyes in those particular cases.  That doesn't mean
       mistakes have actually been made, but whether they were
       or not, it is quite interesting to note that he says
       many.  So far as we are aware on this side of the case
       it is only four examples.
           They have plainly been looking very hard.  That
       gives an idea of the smallness of the problem that we
       are looking at.  And there's the third requirement.  Not
       only is it necessary for there to be some relevant
       remote access in the first place and for there to be
       an error, carelessness or malice, one can't imagine what
       malice there would ever be, but there would also have to
       be the sort of situation where the postmaster himself
       doesn't know that it is happening.
           My Lord, it is very important to recognise that in
       all the PEAKs that have been looked at and all the OCPs
       and the OCRs and the MSCs that have been looked at, so
       far as I'm aware only one example has been found of
       an SPM not being involved in the process by which his
       branch data was worked on.
           And I discussed that, as I recall, in
       cross-examining Mr Roll who frankly admitted -- this is
       from memory so I need to be careful, but my recollection
       is that he frankly admitted that it would be suicidal to
       muck about with a postmaster's branch accounts without
       involving him because then all sorts of problems could
       occur.
           I do hope my memory is correct.  And I will check it
       to make sure.
           So where do we get to with all of this?  30, taking
       Mr Coyne's figure at its highest, multiplied by a small
       fraction to reflect a possible error rate, multiplied by
       a small fraction to reflect the SPM not knowing what has
       happened results in an absolutely tiny number.  It would
       be surprising if it were more than one in the real
       world.
           What scale are we talking about?  The scale is over
       3 million branch accounts.  So the chance of a remote
       access problem adversely affecting a branch account is
       absolutely tiny.  It is 1 in 3 million.  2 in 3 million
       maybe.  It is being hit by lightning territory.
           Even Mr Coyne accepted that the chance of remote
       access adversely affecting accounts is reasonably small.
       My Lord, that's referred to in our submissions at
       paragraph 748 at the bottom of this page {A/6/249}.  He
       didn't want to say vanishingly small, but he couldn't
       resist saying it was small.
           Yet in their answers to the Horizon Issues regarding
       remote access, what do the claimants say?  They say
       material and significant risk.  In closing they put
       remote access at the forefront of their case.  In my
       respectful submission, that they seem to think that
       remote access is their best point might be thought
       revealing about the overall merits of their case.
           My Lord, I'm going to move on and deal briefly now
       with some criticisms that were made of Dr Worden.  I'm
       going to do this as quickly as I possibly can.
           The suggestion is made that he is biased.  I refute
       that suggestion.  Reliance was made on the first joint
       statement which, in my submission, was entirely
       misplaced.  If we could go to JS1 at {D1/1/1}, please.
           I don't have the page reference.  Would
       your Lordship give me a moment?
   MR JUSTICE FRASER:  Is this the part where they set out
       balanced approach?
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  I think it is the first page after this,
       if we could just go forward.
   MR DE GARR ROBINSON:  It is page {D1/1/3}.  So:
           "Each expert's approach to writing his report, and
       to this joint memorandum which foreshadows their
       reports, could broadly be one of three possible
       approaches:
           "(a) to focus mainly on negative points ...
           "(b) To focus mainly on those aspects of Horizon
       which were intended to achieve robustness ... and the
       evidence implying that they succeeded."
           And (c):
           "To provide the court with a clear foundation for
       understanding the design and operation of Horizon; then,
       building on that foundation, to provide a balanced
       assessment of the ways in which Horizon succeeded,
       whilst addressing any disclosed issues where Horizon may
       have fallen short."
           What Mr Coyne said he was going to do is at the
       bottom of the page, two lines from the bottom:
           "Whilst my report will take a balanced approach, it
       is the case that many of the issues require a deep focus
       on the occurrences of bugs, errors and defects as well
       as the potential for modification of transactional
       data."
           It is interesting to note that his deep focus was on
       bugs and his deep focus was on potential for
       modification.  But I ask rhetorically, how many
       instances did he find of bugs?  29.  How many impacts?
       500 and something.  And how many instances of remote
       access?  Not more than 30.
           My Lord, both of those numbers, as your Lordship
       will be aware, are disputed on this side of the court.
       But that was the result of his deep focus.
           Then Dr Worden, he says:
           "I intend to take the balanced approach (c)."
           My Lord, in my respectful submission, that's exactly
       what he did.  He looked at the architecture to see how
       Horizon worked.  He looked at the countermeasures within
       Horizon to see whether they were properly configured and
       designed in order to achieve the robustness which they
       were designed to achieve.  He looked at testing to see
       how they were tested to make sure that they were tested
       properly.
           There is an entire section on testing in his second
       report, for example, where he enhanced his review of the
       testing process.  Then he reviewed how the
       countermeasures had operated during the entire life of
       Horizon.  Your Lordship will see that from his tables in
       appendix D of his first report and then the updated 200
       bug table in his second report.
           My Lord, in my respectful submission, that was the
       right thing to do.  My learned friend criticises him for
       taking a top down approach, but I would respectfully
       observe that Horizon is a massive system.  If you don't
       start by seeing how it is configured and how it works
       from the top, and if you don't then delve into the
       system to see how the support systems work, to see how
       bugs are dealt with and so on, then you are likely just
       to get an incoherent catalogue of problems which aren't
       properly organised and are just a wall of problems which
       are very difficult to manage.
           In my respectful submission, that's exactly what
       Mr Coyne's reports produced.
           I do refute the suggestion, which I am sure my
       learned friend has made, that Dr Worden only stayed at
       the top level.  He went down, he looked down into the
       KELs, he looked at PEAKs, he looked at dozens of PEAKs
       at the time of his first report and looked at many, many
       more by the time of his second report and by the time of
       the trial.
           The exercise that he performed was not a biased one.
       He looked for good and bad.  There were sections in his
       report where he criticised Post Office and Fujitsu.  It
       is worth noting, my Lord, that of the 29 bugs that are
       currently in the bug list, nine of them were actually
       identified by Dr Worden.  So if it hadn't been for him,
       we would be looking at 20 bugs in all probability.
           Your Lordship will get that.  It is paragraph 253 of
       our closing at footnote 383, page 100.  We needn't go
       to it.
           Dr Worden made some mistakes.  He, for example, it
       is just an example, made a mistake when doing his
       scaling calculation first time round, dividing by 461
       instead of a smaller figure.  561 instead of 496,
       I think it was.  My Lord, that was a mistake.  Actually,
       as he explained in cross-examination, he dealt with the
       mistake.  The mistake wasn't repeated when he redid the
       calculation for the purposes of his second report, but
       it wasn't his only mistake.  He did make mistakes.
           But there's no basis for saying that he was biased
       and there's no basis for suggesting that his mistakes,
       if that's what they were, had any substantial impact on
       the validity of his ultimate conclusions.
           The second suggestion that's made was that he
       assumed Horizon was working properly and worked back
       from that.  My Lord, that's simply not the case.  If you
       look at all his assumptions, if you look at the
       financial calculation we looked at previously, the
       spreadsheet, look at all his assumptions about rate of
       imperfections.  A fortiori look at all his conservative
       assumptions which push things radically into the
       claimants' direction.
           Criticisms are made of his scaling approach.
       My Lord, there were some mistakes, but his evidence was
       clear.  Most of the points that were put to him were
       points which misunderstood his approach to undertaking
       calculations of that kind.  Approximations are not
       mistakes.  Engineering estimates always involve
       approximations.  The important question is what
       precision do you need to arrive at a usable answer and
       what precision is available in the light of the
       information you have?
           You have to beware searching for spurious precision.
       My Lord, I freely accept it doesn't make my job easier
       that he did take approximations of figures, he took
       48 million instead of 47 million for one of his
       calculations, and your Lordship will remember the GAAP
       figures.  He didn't take the GAAP figures in another one
       of his calculations.  But, my Lord, all of these things
       are small beer compared with the assumptions he makes in
       the claimants' favour in {D3/8/1}, 0.45 to 0.5, the
       row Y calculations and so on.
           Dr Worden is criticised because he didn't consider
       Dalmellington at all in his first report and he didn't
       consider it properly in his second report.  Well,
       my Lord, he did consider it in his first report.  It is
       considered twice actually in his appendix D3 where he
       goes through the KELs that Mr Coyne had relied on.
           For your Lordship's note -- we don't need to go to
       it -- it is {D3/2/117} and 132.  Both of them consider
       the KEL acha621P.  That's the Dalmellington KEL,
       I think.  So he did consider it but he didn't consider
       it, address it specifically in the text.  He did address
       it specifically in his second report, but there he is
       criticised for not having specifically mentioned, for
       example, that there were 102 occurrences of the
       Dalmellington bug before it was detected.
           The reason why there were so many, of course,
       your Lordship will be aware, is because the
       Dalmellington bug mimicked, it caused human error.  So
       it looked exactly like human error when it occurred.
       And what's more, it was fixed as and when it occurred by
       reason of the ordinary countermeasures that apply in
       Horizon.
           So it never caused any lasting harm.  It just looked
       like human error and it only got picked up.  That's why
       it lasted as long as it did and that's why there were so
       many impacts.  It is not a representative bug in that
       respect.
           But he deals with it quite fully in his second
       report at paragraphs 144 to 163.  Mr Green seems to be
       aggrieved because he doesn't specifically mention the
       112 occurrences, but what he does do is he refers to
       Mr Godeseth's second statement, paragraph 55 onwards,
       which does contain that information.
           I do find myself asking forensically why on earth
       does Dr Worden have to repeat the same information
       a second time?  My Lord, I'm now going to address you on
       what's loomed large in this litigation.  It is not
       a Horizon Issue, but it is a matter to which the
       claimants keep going back.  It is the question of
       disclosure.  I'm going to do that, if your Lordship will
       permit me by reference to our closing submissions.
           If I could ask your Lordship to go to {A/6/371},
       picking it up at paragraph 1119.  There's
       your Lordship's order of 2nd February requiring Model C
       disclosure.
           Paragraph 1120 and 1121 draws your Lordship's
       attention to the practice direction dealing with the
       pilot scheme disclosure, and notes that:
           "... It is for the party requesting Extended
       Disclosure to show that what is sought is appropriate,
       reasonable and proportionate (as defined ..."
           It is described also as "request-led, search-based
       disclosure".
           Paragraph 8 of the practice direction also provided
       over the page at {A/6/372}:
           "(1) The court may order a party to give disclosure
       of particular documents or narrow classes of documents
       relating to a particular Issue for Disclosure, by
       reference to requests set out in or to be set out in
       Section 1B of the Disclosure Review document or
       otherwise defined by the court."
           So what does that establish?  It established the
       requirement of a request:
           "(2) If the parties cannot agree that disclosure
       should be given, or the disclosure to be given, pursuant
       to a request, then the requesting party must raise the
       request at the case management conference …"
           Now, I ask forensically, why does it use the word
       "must"?  The answer is simple.  The fundamental shift
       that has been achieved between ordinary, if I may say
       so, sounding like a dinosaur, standard disclosure and
       modern Model C disclosure is that with standard
       disclosure there is a default obligation to provide
       documents that adversely affect your case or support
       your opponent's case.
           There is no such requirement in relation to Model C.
       All there is is a requirement to disclose known adverse
       documents, and a critical word there is of course
       "known".  You have to know about, and if you don't know
       about it then you are not under an obligation to
       disclose it.
           So in order to be in a position to complain about
       not having had a document, it is incumbent upon you as
       the requesting party if you are not satisfied by the
       response to go to court to get an order.  That's how it
       is supposed to work.  Ironically, it means that more
       work now needs to be done by the court than hitherto.
       Although it is supposed to reduce costs, I rather wonder
       whether in the long run it will increase them.
           So that's the regime that we work under nowadays in
       these courts.
           If I could pick it up at paragraph 1125:
           "By the Court’s Fourth CMC Order 1368 Post Office
       was ordered to disclose the documents set out in
       Schedule 1 to the Order.  Schedule 1 was largely agreed
       by the parties (mainly before the CMC but some of it
       after).  It focused on various documents (in particular
       reports and briefings) being provided to various
       categories of custodians which were defined in the
       Schedule itself."
           So that's Model C working as intended.
           The parties come together, they have a conversation,
       they reach an agreement and an order is made.  There was
       no outstanding issue at that stage, it would seem.
       Certainly there was no application for anything further.
           So we say at 1126:
           "This was an example of Model C disclosure working
       broadly [as intended]."
           If one goes over the page {A/6/373}, paragraph 1127
       adverts to paragraph 13 of the third CMC order where
       your Lordship reminded the parties that the experts had
       the right to come to court to seek directions.
           If I could pick it up at paragraph 1130.  Well,
       perhaps at 1129, the fourth CMC order:
           "... the Court, by paragraphs 8 and 9 of the Order
       ordered the experts to provide an Error Codes List and
       jointly to compile a list of information which either or
       both considered they required."
           1130:
           "This joint report was duly produced on
       26th June 2018."
           It should be, it was a request:
           " ... for a huge amount of information, explanation
       and documentation."
           My Lord, stopping there, what often happens in cases
       of this kind is that when issues have arisen, when the
       car crash has already arisen, you look back with the
       benefit of hindsight and you look back at a particular
       decision or letter and you look at it through
       a microscope and you think "Isn't that awful, I can't
       imagine why on earth that was done".  Of course at the
       time when a party is faced with 30 or 40 pages of
       requests which go up hill and down dale which involve
       all sorts of different things, and remember these are
       technical requests which often the lawyers won't
       entirely understand, the lawyers don't act for Fujitsu,
       they act for Post Office, that can put a recipient,
       a receiving party in a difficult position.  And it put,
       in my submission, Post Office in a difficult position.
           Then over the page {A/6/374} at paragraph 1131,
       Mr Coyne on 20th July sent an email to Freeths and WBD
       requesting yet further material.  And at 1132, it says:
           "Some mechanism was clearly required in order that
       (i) each side's position on the various requests being
       generated by Mr Coyne was properly set out and could be
       fully considered and (ii) the requirements of Model C
       were met."
           And 1133:
           "The parties agreed a sensible mechanism which the
       Court approved in the Fifth CMC Order ..."
           Perhaps I could invite your Lordship to read the two
       paragraphs quoted there, the order's at C7, tab 22, but
       we needn't look at it.
   MR JUSTICE FRASER:  The two paragraphs at 1133?
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  My Lord, if I was a trust lawyer
       I would say those two paragraphs gave effect to the
       spirit and intendment of the pilot scheme for
       disclosure, Model C disclosure.  In particular, it
       created a mechanism by which, if there were any
       objections, the claimants would explain why the
       documents were needed and then the recipient,
       Post Office in this case, would be required to elect as
       to whether to continue its objection or not, with the
       benefit of the explanation as to relevance and why it is
       reasonable and proportionate.
           That is how Model C is supposed to work in my
       submission.
           This mechanism would have ensured that by the end of
       August, in fact by the middle of August, the parties
       would have known where they stood and it would have been
       open to the claimants to raise the matter with
       your Lordship and seek an order if need be, if agreement
       couldn't be reached.
           That is how Model C disclosure is supposed to work.
       That's effectively what's said at paragraph 1134.  But
       your Lordship will see over the page at 1135 {A/6/375}
       or 1136, Post Office's response on 8th August:
           "[It] provided its response, as required by the
       Fifth CMC Order, on 8 August 2018.  In many cases, it
       provided the information requested and additional
       documentation.  In other cases it did not.  Post Office
       was genuinely unsure of what Cs' case was in relation to
       many of the Horizon Issues – neither the Outline
       Document nor Mr Coyne's reports had been served at this
       point – and many of the requests sought not categories
       of documents but lengthy analyses and explanations of
       matters which Post Office did not have and which
       appeared to cut across the carefully negotiated
       categories of documentation which the Court had ordered
       at the Fourth CMC."
           So following this impasse, the claimants were put to
       their election pursuant to the fifth CMC order, they
       should have served an explanation by 18th August if they
       maintained a claim to any of these requests together
       with the necessary explanation.
           Did they do that?  No, they didn't.  They in fact
       sabotaged this entire exercise by doing nothing.  I'm
       not here to blame them for doing nothing, I am sure they
       had plenty of other things to do at the time.  But,
       my Lord, I'm here defending constant criticisms made of
       my clients, including during my cross-examination of
       witnesses.  My learned friend kept popping up and giving
       your Lordship "That was disclosed on such-and-such
       a date".  The reason why we are having this conversation
       is because Post Office has been consistently attacked by
       the claimants for failing to give proper disclosure in
       circumstances where those criticisms are based upon
       a fundamental misunderstanding of the way that
       disclosure is supposed to operate in the modern world,
       in my submission.
           If one were to look at the claimants' account of
       disclosure in their own closing submissions, it is quite
       revealing.  We needn't go to it, but that is
       paragraph 40 of their closing, {A/5/15}.  They suddenly
       say Mr Coyne made some requests in December or renewed
       his requests in December.  But, my Lord, by then it was
       the ground rush to trial.
           Two points that it is important to make clear about
       their complaint about disclosure.  The first point is in
       actual fact, in my respectful submission, the claimants
       have had the disclosure that they could legitimately
       expect to have.  Their real complaint is not that they
       have not been given the disclosure they need, their
       complaint is that it was disclosed late.
           But, my Lord, that brings me to my second point,
       which is why was it disclosed late?  The answer is it
       was disclosed late because they didn't take the
       opportunity that they had agreed that they would take in
       the terms of the fifth CMC order.
           If, as I say, the claimants' only objection is one
       of delay, at whose door should responsibility for that
       delay be laid?  In my submission, it should not be laid
       at the door of Post Office.  Post Office tried to comply
       with the order.  It did comply with the order and it got
       no response from the claimants, and it does not lie in
       the claimants' mouths in those circumstances to say that
       between August and December Post Office should have been
       busying itself voluntarily disclosing documents it
       thought were a dead letter because it had no response.
           My Lord, there is the third submission that it is
       important to bear in mind as well, because although in
       my submission the only real complaint that can be made
       about disclosure is one of delay and, as I say, if
       a complaint is to be made it is to be made of the
       claimants, not of the Post Office, but at the same time
       the claimants also wish to maintain a suggestion that
       the reason why this has been happening, the reason why
       they didn't get these documents when they needed them,
       was because Post Office is exhibiting a lack of candour
       about its case.  That's lawyer's speak for trying to
       conceal the truth from the court.
           My Lord, nothing can be further from the truth.  In
       my respectful submission, it is an outrageous submission
       for the claimants to make in circumstances where they
       had the power in their own hands, an agreed power, to
       ventilate this issue in a way that they were required to
       do pursuant to the pilot scheme practice direction and
       they chose not to take it for whatever reason.
           My Lord, just a final point on lack of candour.  It
       really is important to note that the documents that have
       been disclosed, the KELs were disclosed in May last
       year, they have had the KELs for well over a year.  As
       soon as the Horizon Issue trial was ordered, KELs were
       agreed to be disclosed.
           No order of disclosure for PEAKs has ever been made,
       but the PEAKs were identified in the Post Office's EDQ
       back in December 2017 and steps were taken.  It was
       difficult to extract the PEAKs from the proprietary
       database on which they are held by Fujitsu and software
       had to be written in order to allow them to be extracted
       so that they could be used in a usable way.  And that
       cost quite a bit of money, as I understand it, and that
       took time, but there was no resistance to giving them
       the PEAKs.  No order has actually been made but PEAKs
       were provided as soon as they became available, and they
       became available in the September.
           It is in the submissions.  I'm going too fast.
       My Lord, OCPs, OCRs, MSCs, I have to confess at the time
       I didn't really understand what these documents were.
       I'm speaking for me.  But, again, once Mr Coyne's report
       had been served and it became clear what the
       significance of these documents were, urgent steps were
       taken actually to secure that these documents were
       available.  And the dates on which they became available
       were set out later on in these submissions.
           But, my Lord, this is not a story of Post Office
       seeking to hold back material that's unhelpful to its
       case.  If that had been Post Office's objective, it
       wouldn't have run around like a headless chicken trying
       to get these documents for the claimants without any
       even threat of a court application.
           What's more, the effect of these documents has not
       been unhelpful to Post Office.  In fact, they have been
       helpful.  The PEAKs, its OCRs and the OCPs and the MSCs
       all show, first of all, how few bugs there have been
       that are relevant for the purposes of at least Horizon
       Issues 1(a) and 3, and secondly, how minuscule the
       exercises of remote access have been in the context of
       a system of this size.
           Those documents are actually helpful.  There has
       been no smoking gun.  There has been nothing that has
       been revealed that changes the whole complexion of the
       case, save insofar as it reveals things and has been
       useful for the arguments I'm now making to
       your Lordship.
           So I would invite your Lordship to view with some
       scepticism an entirely understandable and, I have to
       say, entirely typical submission from my learned friend
       to the effect that Post Office is engaging in a process
       that is inappropriate and deserves judicial criticism in
       relation to this particular instance.  In my submission,
       such a suggestion is grotesquely unfair.
           Then, my Lord, just going on through the
       submissions.  It is worth adverting to, but only very
       briefly, paragraph 1146: the decision of the Court of
       Appeal in Serafin v Malkiewicz.  A very different case:
       a question of procedural unfairness to a party.  And the
       Court of Appeal naturally drew attention to the fact
       that the judge made criticisms of the party for not
       disclosing documents that that party had not been
       ordered to disclose.  And I would invite your Lordship
       similarly to refrain from making criticisms of that
       sort.
   MR JUSTICE FRASER:  I am glad you have mentioned that case
       because that was one of the questions I had for you.
       That is under the heading "The Court's interventions on
       disclosure".
           That case concerned demands and criticisms by the
       judge during the trial.  Now, I'm unaware of making any
       criticisms or demands during this trial.
   MR DE GARR ROBINSON:  I'm going to interrupt your Lordship
       with the greatest of deference.
   MR JUSTICE FRASER:  Well, I'm interrupted regularly by both
       of you, so ...
   MR DE GARR ROBINSON:  I want to make it clear that this case
       is not cited for the purpose of affecting your Lordship
       in any way, or suggesting to your Lordship in any way
       that that has happened during the case of this trial.
       And I would like to reassure your Lordship of that fact.
   MR JUSTICE FRASER:  I'm not necessarily seeking reassurance,
       I'm just seeking clarification because 1146 {A/6/377}
       says that that passage is relevant and it is under
       a heading "interventions on disclosure".  Now, when
       I read it I went back and reminded myself not only of my
       approach to disclosure during this trial, but Common
       Issues trial as well, and I did in the Common Issues
       Judgment make certain observations in respect of
       managing the group litigation generally.
           But so far as this trial is concerned, I think
       I have only been involved on three occasions.  One was
       to invite you to perform a redaction review.
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  One was to require a witness statement
       of explanation in respect of Royal Mail.
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  One was to require a witness statement
       of explanation in respect of a large quantity of
       documents which came, I was told, originally in May, May
       of this year.  But I do not think I have criticised
       anybody.  I certainly haven't intervened.  But if I have
       I would like you to identify those occasions to me.
   MR DE GARR ROBINSON:  My Lord, I do not think you have
       criticised.  No, I would go further.  If you had I would
       remember, and you haven't.  The purpose of my reliance
       on this case -- this is a terrible thing, I'm throwing
       my learned friend under a bus here --
   MR JUSTICE FRASER:  No, please don't throw anyone under
       a bus.
   MR DE GARR ROBINSON:  It is that the importance of this
       case, this paragraph -- it is a paragraph -- is simply
       the principle that my learned friend is making
       criticisms which are based upon the very error that was
       identified by the Court of Appeal in this case.
       That's all.
   MR JUSTICE FRASER:  Well, that's rather my point.  But it is
       not necessary to spend too long on it.  But what
       occurred in that case were interventions during the
       trial in respect of disclosure said to be deficient, in
       respect of which there was no order.
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  What Mr Green did and his team did in
       their opening is they made a number of complaints in
       respect of the known error log, which we call the KELs,
       the PEAKs etc.  And as you rightly point out there have
       been no applications in respect of that.  It is more
       what could be said to be a generic complaint about the
       Post Office's approach generally, which I understand
       your submission to be is effectively made for forensic
       reasons, is what it comes down to.
           Let me put it slightly differently.  I'm generally
       unimpressed with a party complaining about not receiving
       disclosure if they haven't made a specific application.
       Equally, during this trial there have been certain
       features of disclosure that have developed, for example,
       Royal Mail and the recent bulk disclosure when Fujitsu,
       I think you explained, had forgotten that there was some
       archive documents --
   MR DE GARR ROBINSON:  This is the OCRs?
   MR JUSTICE FRASER:  Yes.  Which so far as the court is
       concerned I'm always interested in having an explanation
       in a witness statement.  But I'm not aware I have
       criticised the Post Office.
   MR DE GARR ROBINSON:  Nor am I, my Lord, and I'm happy, I'm
       glad your Lordship has given me the opportunity to make
       that clear.
           The simple point that I make, and I'm glad I have
       come to this so we have had this discussion, the simple
       point that I make is that just as it would have been
       inappropriate were your Lordship to have done that, by
       the same token it is inappropriate for my learned friend
       to make those criticisms in the hope that your Lordship
       is going to echo them.
   MR JUSTICE FRASER:  I understand.  I mean, I also
       appreciate, so far as disclosure is concerned generally,
       that the Post Office has been reliant on Fujitsu to
       a large extent.
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  But now that we have the Fujitsu
       Post Office contract, it is obvious that Fujitsu has got
       a contractual obligation in respect of assistance so far
       as documents are concerned, but those things take time
       obviously.
   MR DE GARR ROBINSON:  Yes, and whether that obligation --
       I was going to raise the question of what that meant
       about control, but my Lord, I'm not in a position to do
       that.
   MR JUSTICE FRASER:  I do not think it is necessary, to be
       honest.  But the short point is, and I think it is
       mentioned once or twice in this passage in your closing,
       that the Post Office was reliant upon Fujitsu.
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  And as you say, for example, the PEAKs,
       they had to develop the certain piece of software to
       extract them.
   MR DE GARR ROBINSON:  Yes, my Lord.  I believe that's also
       the case with OSPs, and also MSCs have to be -- a lot of
       work had to be done in order to -- your Lordship will
       have heard Mr Coyne complain about the form in which
       MSCs were disclosed.  Well, they would have been
       completely unusable if effort hadn't been made to put
       them into spreadsheet form.  And actually, in relation
       to that it is worth mentioning that it is possible, it
       was possible on the spreadsheet to actually download
       individual documents and drop them onto paper in the way
       that I did, or was done at my request, so that one could
       see precisely what the documents showed.
           My Lord, I see that it is 12.58.  I have still got
       perhaps 10 or 15 minutes on disclosure.
   MR JUSTICE FRASER:  Do you want to stop now?
   MR DE GARR ROBINSON:  This may be a convenient moment.
   MR JUSTICE FRASER:  All right.  We will come back at
       1.58 pm.  Thank you very much.
   (12.59 pm)
                     (The short adjournment)
   (1.58 pm)
   MR DE GARR ROBINSON:  My Lord, two matters of housekeeping
       before I proceed.
           First of all, I have handed up a series of
       typographical -- they are purely typographical --
       corrections to our closing submissions.  Some of the
       internal paragraph references hadn't been updated when
       the document was served and there were some false
       references.  An amended version of the submissions will
       be uploaded onto Magnum, but I imagine that
       your Lordship will have already started marking up the
       version that you have got, so a copy of just the
       amendments that have been made has been provided and
       that's available to your Lordship.
   MR JUSTICE FRASER:  I actually got two hard copies.  I was
       working off the one that came from your solicitors,
       although I did get one from you.  Yours was in two
       volumes and theirs was in one, which is why I used
       theirs not yours.  But I assume they are both exactly
       the same.
   MR DE GARR ROBINSON:  I would be very surprised if they
       weren't.
   MR JUSTICE FRASER:  That's why I mentioned it.  These are
       corrections to the submissions?
   MR DE GARR ROBINSON:  Yes.  They are purely typographical.
       It is things like footnote 5 should be GDCC, and things
       like that.
   MR JUSTICE FRASER:  Thank you very much.
   MR DE GARR ROBINSON:  My Lord, the second housekeeping
       matter is something I have been taken to task on over
       the short adjournment.
           When addressing your Lordship on what the impact
       would be of having a trial of the reconciliation and
       transaction correction processes in Post Office that
       have existed over the last 20 years, they have changed
       quite a bit during the course of those years, as
       I understand it, I told your Lordship it would be over
       1 million documents and could take six months.  I have
       to say that was a product of my brain.
           My instructing solicitors have very properly
       indicated to me that rather than just firing off the hip
       with a prediction of that sort one should be rather more
       careful, and really my submission should have been if
       those things were to be included in the Horizon trial it
       would not have been possible to have covered them within
       the timetable that was available by any means.
   MR JUSTICE FRASER:  All right.
   MR DE GARR ROBINSON:  So I stand corrected in relation to
       that.
           My Lord, disclosure.  I was on the question of
       disclosure and I addressed your Lordship on the
       standards that I submitted the claimants were, in my
       submission, inappropriately seeking to impose on
       Post Office.
           Before leaving the question, I would like to compare
       the standards that the claimants have been seeking to
       impose with the standards that they are willing to
       accept for themselves.
           My Lord, if we could pick it up in the disclosure
       section of our written submissions, and if we could pick
       it up, please, at page 382, paragraph 1171 {A/6/382}:
           "By paragraph 5 of the Fourth CMC Order, Cs were
       ordered to provide disclosure of documents upon which
       they intend to rely at Horizon Issues Trial ..."
           At that time, it pointed out in 1172:
           "... that the Fourth CMC Order provided for witness
       statements to be limited to 'any witness of fact whose
       generic evidence (in distinction to Claimant-specific
       evidence) they wish to rely upon for the purposes of
       determining the Horizon Issues'."
           So those two orders went together.
           The reason why there was a limitation in the order
       that was applicable to the claimants was because the
       claimants weren't expected to be given the same sort of
       evidence that the Post Office would be giving.
           That point is made in paragraph 1173 {A/6/383}, and
       I invite your Lordship to read that.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  Then picking it up at {A/6/383},
       paragraph 1174:
           "On 17th July ... Cs provided disclosure of 45
       documents.  At this time it was not known to Post Office
       that Cs would be serving extensive claimant-specific
       witness statements."
           But certain slightly ominous sounding statements
       were made and Post Office sought to explore that in
       1175, explaining that:
           "... 'additional relevant documents may come to
       their attention, and most likely as a result of the work
       of experts'."
           So no mention was made of claimant-specific evidence
       that was to come, but they did say it was not their
       intention to make another round of disclosure.
           Then there was correspondence in which my
       instructing solicitors sought to press my learned
       friends on the scope of the disclosure which had been
       given, and your Lordship will see the submission that's
       made in paragraph 1178 on page {A/6/384}.
           There is a suggestion that there was a desire to
       avoid a repeat of late disclosure of documents close to
       trial which had happened at the Common Issues trial.
       My Lord, I don't know about that.
           Then we then come to 28th September where the
       claimants serve nine witness statements, including
       several claimant-specific witnesses.  Those witness
       statements for the first time exhibited 17 new
       documents -- that's in paragraph 1180 -- and a total of
       30 new documents were disclosed at that time.
   MR JUSTICE FRASER:  Is this with the witness statements that
       means?
   MR DE GARR ROBINSON:  My Lord, I believe so, yes.  At the
       end of paragraph 1180.
           Then, your Lordship will see quite a lot of
       correspondence where my instructing solicitors are
       pressing for information as to the scope of the
       disclosure that has been taken.
           Then at 1182 there is a reference to the letter of
       14th January:
           "... 'Given the nature of the Horizon Issues Trial
       there was good reason for the court to seek to limit the
       ambit and cost of disclosure from the Claimants
       themselves.  Hence, the disclosure order made here; the
       obvious good sense of that has not changed.'"
           Well, my Lord, your Lordship will anticipate what my
       response to that is.  Everything changed when the
       claimants served substantial evidence of their own which
       they weren't supposed to, and that's the point that's
       made in paragraph 1183.
           At paragraph 1184 it is pointed out that as
       claimants had flouted the order that your Lordship had
       made about evidence, Post Office sought to understand
       what searches, if any, had been conducted by claimants
       so that it could understand whether further disclosure
       would be required.
           Several requests were made.
           1185:
           "This lack of response by the Cs should be viewed in
       light of the approach adopted by Post Office.  One
       example of the further disclosure that Post Office has
       agreed to give to Cs which is outside that ordered by
       the Court is the requests for disclosure made by Cs on
       18 December 2018 in which the Cs sought ..."
           Your Lordship will see the following categories of
       documents including:
           "... 'disclosure of the documents that were
       responsive to searches by, and collated by the Defendant
       in respect of the operation of branches by Angela Burke,
       Aakash Patny, Anup Patny, Jayesh Tank, Setpal Singh and
       Adrees Latif.  We would expect such documents to include
       but not be limited to."
           Then there is a whole series of documents which the
       claimants were demanding.
           So your Lordship will see the double standards that
       are being applied by the claimants.  On the one hand
       they are standing on the orders, or rather the lack of
       orders, that have been made against them, but at the
       same time although no order has been made against
       Post Office either, they are demanding all manner of
       further documents.
           Further requests for claimant-specific disclosure on
       4th February.  Post Office responds on the 11th and
       provides disclosure on the 20th:
           "The failure by [claimants] to provide their own
       claimant-specific disclosure suggests that they clearly
       intended disclosure to be a one-sided exercise."
       {A/6/386}
           My Lord, there is a further observation I would
       respectfully make about that.  The observation being
       Post Office are criticised for only producing documents
       on 20th February.  My Lord, in my submission, the double
       standards explicit in that criticism takes the breath
       away.
           On the one hand claimants refuse to give disclosure
       themselves or explain what disclosure has been given
       further to the few documents they have or provided.  On
       the other hand they are demanding more and more
       documents from Post Office.  And one can understand why.
       I'm not criticising them for that.  What I'm criticising
       them for is for applying double standards between
       themselves and Post Office.
           Then at 1187 the claimants write to Post Office
       indicating there is a document which is helpful to the
       claimants, Mr Tank's Yahoo -- what is it called?  --
       Yahoo group forum document which he has found.  He has
       found a post.  The point is made just for consistency,
       notwithstanding the claimants' complaints about delay,
       it is pointed out in paragraph 1187 that there is no
       explanation of delay by the claimants.  This is a double
       standards point, not a complaint point.
           My Lord, there is then a series of paragraphs
       dealing with various documents that appear to exist.  At
       page {A/6/387} there is a long part of the transcript of
       Mr Tank's cross-examination.
           About halfway down the page, where Mr Tank says:
           "Answer:  I kept all my Post Office sort of related
       paperwork in a box file and that's -- when I was asked
       to look for evidence I went strictly to that box file
       and that's where I sourced all my information from."
           So when asked "How do you know all this?" he says
       there is a box file that's got this information.
           Similar points arise at the top of page {A/6/388}.
       A lot of reliance on this box file.  Amongst other
       things, 1192:
           "... it was Horizon generated receipts, print-outs,
       with hand-written dates and reference numbers on them."
           My Lord, a similar summary of the evidence of
       Mr Latif where he discusses the records that he had
       access to to help him change his evidence.  My Lord,
       that led to a request for disclosure which your Lordship
       will see on paragraph 1196 on page {A/6/390}.
           My Lord, just to cut a long story short,
       your Lordship will see at paragraph 1198, {A/6/391}, the
       claimants refused:
           "... to provide further disclosure of the requested
       documents on the basis that they were either outside Cs'
       control, no longer existed or were not relevant to the
       [Claimants'] evidence and not relied upon at trial."
           My Lord, if one compares the approach that
       Post Office adopted to providing disclosure relevant to
       the allegations made by the claimants against them with
       the approach that the claimants have adopted in relation
       to the same issues, one does see distinct divergence, in
       my submission.
           The claimants appear happy to stand behind the fact
       that no order has been made against them, whereas they
       won't for a moment countenance the possibility of the
       fact that no order has been made as being at all
       relevant to Post Office's position.
           To be fair, Post Office hasn't stood on the orders
       either.  Virtually all of the disclosure about which the
       claimants make so much complaint is actually all
       voluntary.  But still Post Office is accused of lack of
       candour.
           My Lord, before leaving the question of disclosure,
       and in particular disclosure by the claimants, I would
       respectfully submit that that reinforces the point that
       I hope your Lordship already has loud and clear from our
       submissions in relation to how inappropriate it would be
       for your Lordship to make findings that
       claimant-specific witnesses were the victims of
       undetected bugs or other defects in Horizon causing them
       trouble.
           In principle --
   MR JUSTICE FRASER:  You mean in a Horizon Issues judgment?
   MR DE GARR ROBINSON:  Yes.  My Lord, in principle that is
       a matter for --
   MR JUSTICE FRASER:  None of the Horizon Issues go to that
       at all.
   MR DE GARR ROBINSON:  Well, my Lord, the reason why
       I mention it is because your Lordship is invited to make
       all sorts of findings by the claimants and I'm quite
       anxious that your Lordship should understand, and
       I imagine you already do, that we say that would be
       an entirely inappropriate --
   MR JUSTICE FRASER:  Well, I'm trying the Horizon Issues and
       I am answering the Horizon Issues.  There will obviously
       be a lot of detail in the judgment prior to arriving at
       the answers to those issues.  The idea that a specific
       finding could be made on the evidence before this court
       on a specific shortfall for a specific claimant in
       a specific amount allocating it to a specific bug seems
       to me to go outside the Horizon Issues.
   MR DE GARR ROBINSON:  I'm obliged to hear that from
       your Lordship.
   MR JUSTICE FRASER:  But I'm surprised it is a point of
       enormous difference between you given the orders, given
       the CMC orders about what the trial is about.
   MR DE GARR ROBINSON:  My Lord, I agree.  It is surprising.
       But if your Lordship were to go to the claimants'
       closing submissions, you will see that you are being
       invited to make all sorts of findings.  And one of the
       most remarkable ones I think is in relation to Mr Latif.
       Your Lordship will recall there is said to be
       a difficulty about a stock unit transfer in or around
       July 2015.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  The evidence demonstrates, in my
       submission quite clearly, if your Lordship were to make
       findings on it, which I say you shouldn't, the evidence
       demonstrates quite clearly that there was no such
       problem during the period identified by Mr Latif.
           The claimants are suggesting your Lordship should
       make a finding that it happened at some other
       unspecified time that's not covered by any disclosure,
       it is not covered by any evidence, in circumstances
       where Mr Latif himself didn't say it happened at
       a different time.
           There is an Alice in Wonderland reaction to those
       submissions, but it is right that your Lordship should
       understand -- I can see that your Lordship does -- our
       response to the submissions of that kind.  In my
       submission, it would be entirely inappropriate.
   MR JUSTICE FRASER:  Well, the way in which I deal in the
       judgment with claimant-specific issues is obviously
       something I am going to have to consider carefully and
       deal with carefully.  But so far as the findings on the
       Horizon Issues are concerned, it is very clear on the
       face of the order and the discussion that led to the
       order that they are not going to be claimant-specific.
       They are generic.
   MR DE GARR ROBINSON:  I'm grateful for your Lordship's
       indication.
   MR JUSTICE FRASER:  That's not to say that I have
       a concluded view now that I should ignore all of the
       claimant-specific factual evidence, but I'm fairly
       clear, as with the Common Issues in fact, that the
       answers arrived at in the judgment are the answers to
       the issues that I am trying.  I would have thought
       that's a fairly elementary approach.
   MR DE GARR ROBINSON:  To the extent that -- the experts --
       Mr Coyne doesn't base any conclusions on the witness
       evidence, as far as I'm aware.  He refers to the witness
       evidence as being consistent with his views.  But
       nowhere -- I hope I'm correct, I am sure I am correct in
       saying.  The fact that I'm saying I am sure I am correct
       in saying means I'm not sure.  But I think I am correct
       in saying that nowhere does Mr Coyne conclude that
       a particular bug existed because a particular
       claimant-specific witness has said something.
           At most, what he does is he says, well, I noticed
       Mrs Burke had problems with reconciliation, or I see
       that Mr Latif says this, that and the other.  But he
       doesn't, first of all, base any conclusions on the basis
       of their evidence, nor should he.  Secondly, nor does he
       suggest that their assertions flow from a bug that he
       has identified that could be the source of
       a particular -- I think I'm right in saying he doesn't
       specifically say bug 13.  This was in existence at that
       time and that's when we had Mr Latif's problem.
           My Lord, that's not how his evidence is constructed,
       as I recall.  In those circumstances it would be
       highly -- your Lordship as got my submissions.  There
       hasn't been proper disclosure.  If there were to be some
       findings about what the claimants did, what they
       suffered, there would need to be an investigation of
       wider issues about how the relevant branches were
       operated.  One would need to go into the history.  One
       would need to investigate all sorts of things.
           These snapshot witness statements, most of which are
       almost impossible to understand because they are so
       short and bereft of detail, one would need to go into
       far more material in order to be able to be in
       a position to make findings at all.  If your Lordship
       were to make findings, in my submission the only proper
       findings would be to dismiss the claims that are made.
       But my primary submission is that your Lordship should
       not entertain them in the first place.
           My Lord, that completes my submissions on
       disclosure.
           Let me now come as briefly as I can to the bugs that
       my learned friend addressed you on yesterday.  What
       I would like to do as briefly as possible is to talk
       about bug 11, bug 12, bug 13 and bug 15.
           Bug 11 is Girobank.  Your Lordship will recall that
       Post Office contends that there's no evidence of
       financial impact from the relevant bugs.  Your Lordship
       may or may not -- I suspect not -- be alive to this
       already, but bug 11 raised in appendix 2 raises six
       issues.  My learned friend didn't deal with all of those
       six issues in his submissions yesterday.  He only
       addressed Issues 1 and 2 and he referred to a principal
       PEAK which is at {F/25/1}, and perhaps I could ask
       your Lordship to go to that very briefly.
           My Lord, this is opened on 5th May.  The claimants
       argue that Post Office hadn't grappled with the concept
       of what a discrepancy is, and I'm informed that that's
       in the transcript at {Day21/101:1}.  If that is their
       submission, in my submission it is not correct.
           Post Office has grappled with what a discrepancy is,
       but the word "discrepancy" means more than merely
       a comparison between one thing and something else, as
       the claimants suggest.
           The thing and the something else are relevant to the
       Horizon Issues.  They can't be any two things.  Here
       what's required is a discrepancy in branch accounts.
           Now, the PEAK notes that there was a £505
       discrepancy between a branch's cash account, and the
       cash account at this period of time means its own
       accounts, and its daily reports.
           Your Lordship will see that from the bottom of
       page {F/25/1}.  5th May at 15.02:
           "New evidence added - Full message store.
           "... Response:
           "This difference (£505.72) between the Cash Account
       and the Daily reports is explained by," a particular
       KEL.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  The discrepancy there is not
       a discrepancy in the branch's accounts.  It is
       a discrepancy between the accounts and the report that
       was sent to Girobank every night.  The issues discussed
       in the PEAK are reporting issues, they are not account
       issues.
           Indeed, Mr Coyne agreed the following in
       cross-examination, that the detection and investigation
       of Issues 1 and 2 in this PEAK demonstrated the good and
       effective operation of robustness countermeasures in
       Horizon.  My Lord, that was at {Day17/52:1} to 56, and
       pages 63 to 64.
           He also accepted that the PEAK was not evidence of
       a transaction correction or error notice being issued to
       the subpostmaster in such a way as to subject him to
       a risk of loss.  That is {Day17/65:1}.  My Lord, that
       summarises my submissions on bug 11.
           If we could move on to bug 12: counter replacement
       causing one-sided transaction.  The claimants raise
       a specific issue, namely that the KEL at F421, that's
       J Ballantyne 5328R, does not make reference to issuing a
       transaction correction, or error notice, or a BIM
       report.
           If we could go to that, it is at {F/421/1}.  It is
       true that the KEL does not make reference to a BIMS or
       to an error notice or transaction correction.  However,
       usually KELs don't do that.  They don't include specific
       instructions in relation to BIMS or TCs.  It is
       a standard process which goes beyond what's required in
       one specific KEL.
           If a SPM needs to be made good it is a standard
       process, and in paragraph 12 of his third witness
       statement Mr Parker said:
           "This process of identifying a bug, then identifying
       its effects and then remedying those effects is not
       special to Horizon.  It is a standard part of any IT
       support practice." {E2/13/3}
           Having said all that though, look at the bottom at
       page 1, just before "Evidence" {F/421/1}.  About three
       lines from the bottom, it says:
           "For a multi-counter outlet ... need to retrieve the
       messagestore from another counter, as well as the
       affected counter.  For MCO (and SCO), transaction
       numbers for the RiposteVersionString messages should
       reveal the original transactions.  When you have
       identified any missing transactions attach the details
       to the PinICL," that is an old name for PEAK, "and route
       to MSU."
           Now, the reference to MSU, there has been quite
       a bit of evidence about it but for present purposes
       I can simply rely on Parker 1.  If I could ask
       your Lordship to go to {E2/11/12}.  It is paragraph 44.
           Starting at the second sentence, Mr Parker says:
           "There was (and is) a process run by the Management
       Support Unit (MSU) which involves examination of various
       system reporting and may result in Business Incident
       Management Service (BIMS) entries going to Post Office.
       An incident may also be raised by MSU with the SSC to
       provide support to the MSU in resolution of the BIMS."
           My Lord, the MSU is the body within Fujitsu which is
       involved in the production of BIMS.
           So the fact that the MSU was being involved by the
       SSC here actually is an indication that what could end
       up happening is that a BIMS report will go from MSU to
       Post Office.
           My Lord, secondly in the context of this very bug,
       it is worth looking at {F/77.1/1}, one of the other
       PEAKs.  Same phenomenon.  If one goes over, this is
       24th November 2000, so a similar period.  One goes to
       page {F/77.1/3} of that PEAK.  The bottom green box
       starts at 5th December 2000 at 10.43:
           "Response:
           "4/12/2000 ... By John Moran - MSU."
           It is worth noting.
   MR JUSTICE FRASER:  I can't see where you are.
   MR DE GARR ROBINSON:  It is halfway down the page.
   MR JUSTICE FRASER:  Have you still got black and white or
       have you got colour?
   MR DE GARR ROBINSON:  No, I have green now.  It is the green
       box.  If I didn't make that clear, I do apologise.
       5th December at 10.43.
   MR JUSTICE FRASER:  Yes, I've got that.  Oh, I see, yes.
   MR DE GARR ROBINSON:  So MSU is involved.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  "This incident has the same cause as
       one to be recorded on the SIL ..."
           I'm afraid I don't know what SIL means:
           "... under BIM."
           And there is a number.  You see MSU is involved in
       BIMS.  Then if one goes down to the bottom of the box,
       about two-thirds of the way down there is a line that
       starts "These two credits".  Does your Lordship see
       that?
   MR JUSTICE FRASER:  Yes, equal £167.12.
   MR DE GARR ROBINSON:  "As they were written over they were
       not added to the cash account.
           "Final BIM issued.
           "Please close this call.
           "Closing as Reconciliation resolved."
           Here you have evidence first of all of BIMS being
       sent in relation to precisely this bug, and second you
       have evidence of the MSU being involved.  So that
       disposes of the submission made by my learned friend
       about that.
           Withdrawn stock next.  That is bug 13.  If I could
       pick it up at {F/765/1}.  Your Lordship may recall that
       this is a problem where stock is withdrawn.  It is no
       longer being sold by Post Office.  Branches are supposed
       to rem out the relevant stock and send it back to
       Post Office, but what sometimes happened is that they
       don't rem it out, they just send it to Post Office and
       the problem is Horizon doesn't actually have a pair of
       eyes.  If you don't record the rem, then Horizon doesn't
       know that the stock has been removed, and then there is
       a problem because you have stock which Horizon thinks is
       held at the branch, and it is historic stock, it's stock
       which Post Office no longer sells.  And that creates
       problems in itself and what to do about that stock and
       so on.
           This was a case where the SPM did not follow the
       correct procedure.  The underlying issue explained of in
       the PEAK is not a bug in withdrawn stock, but it is the
       SPM not following correct procedure in remming out the
       stock that's being withdrawn.
           One gets that, my Lord, if one looks at page 1 of
       this PEAK halfway down the big yellow box:
           "This office physically held 137 £5 Post Office
       stamps and did not rem them out before the date the rem
       out icon disappeared."
           That will be when, I presume, reference data ceased
       to be applicable to in relation to that particular
       stock:
           "The office physically returned the stamps to
       Transaction Processing as advised and the office then
       did a Trading Period balance on 17 November 2010 and
       showed this value as a loss."
           Now, what my learned friend did yesterday was go
       like a magnet to the second line and said: look, look,
       transaction processing advised them to do what they did.
       It must be a bug.  I don't know if your Lordship recalls
       that?
           I think the quote from the transcript is:
           "So pausing there.  We do not get from the PEAK
       itself the fact that the SPM failed to do what they were
       advised to do in terms of failing to rem them out."
           That is {Day21/110:14}.  But your Lordship will see
       from this very sentence that the SPM had not done what
       he was supposed to do.  He had not remmed out the stamps
       in the first place.  So it is quite right that the SPM
       had been advised to return the stamps, but they had to
       also rem them out.  That is fundamental to the way that
       the Post Office business works and it is commonsense
       really because, as it says, Horizon doesn't have eyes.
           So, my Lord, again, a very brief submission in
       relation to that.
           Phantom transactions is more complicated.  There
       were three documents that my learned friend referred to
       yesterday.  The first was -- well, a PEAK at F/97, then
       at PEAK at F/100.1 and then a PEAK at F/88.2.  These
       PEAKs are relied on with a view to casting doubt on the
       conclusion set out in those PEAKs that the problems were
       not probably attributable to bugs in Horizon.
           If we go to {F/97/1} first, your Lordship may recall
       that I cross-examined Mr Coyne about this, who would
       only rely upon the Romec engineer point.  Does
       your Lordship recall the Romec engineer point?
   MR JUSTICE FRASER:  I do.
   MR DE GARR ROBINSON:  That was the point he had referred to
       in his report and I had taken him to the end of the PEAK
       in which Patrick Carroll had set out his overall
       conclusion.
           My learned friend very fairly went to a different
       page of the PEAK, page {F/97/7}.  Before going there, it
       is worth noting that this is a master PEAK that doesn't
       just relate to one particular branch, it covers a number
       of different incidents with different branches.  And
       that's an important part of the context.
           If one goes to page {F/97/7}, that's relevant to
       what's said in the box that my learned friend referred
       to.  It is 19th June, 15.17, about two-thirds of the way
       down.  My learned friend understandably relies on the
       sentence:
           "This has been seen at Old Iselworth (OI) and Wawne
       ... with OI being the best site; when the PM has been
       asked to leave the screen on overnight I have observed
       system activity corresponding to screen presses
       happening with no corresponding evidence of either
       routine system activity or human interference, the way
       forward now is to correlate this with the Microtouch
       supplied monitoring software and to this ends Wendy is
       arranging for installation of Kit at OI on Friday ..."
           So it is the Old Isleworth site on Friday:
           " ... we can then, provided the PM agrees, leave
       screens on over the weekend and record what happens.
       Once these results have been analysed I feel sure that
       we will be in a position to move forwards at OI.  All
       other cases should be considered on their individual
       merits ..."
           So this is 19th June, the installation took place on
       22nd June.  This entry followed up on 20th July at
       13.40.  That's at page {F/97/8}.  It says:
           "Comtest readings have been correlated with perfmon
       stats and a recommendation to install resitive screens
       at Old Iselworth has been made."
           So that is the last entry relating to this site on
       this PEAK.  But it is picked up in {F/100.1/1}, if
       I could ask your Lordship to go to {F/100.1/1}.  I'm
       sorry to jump about like this.  Your Lordship will see
       the last entry was 22nd July.  This picks up at the top
       of the page, 25th July 2001 at 9.39.
   MR JUSTICE FRASER:  25, yes.
   MR DE GARR ROBINSON:  Does your Lordship see that in the top
       green box?
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  Third line down:
           "24/07/01:
           "PM reports that he has been having phantom
       transactions ..."
           Over the page, here is Patrick Carroll's conclusion
       about all of this {F/100.1/2}.  5th September:
           "Following a significant amount of monitoring ..."
           Stopping there.  That clearly is the case.  Mr Coyne
       himself I think accepted that Fujitsu had worked quite
       hard to get to the bottom of what these reported
       problems were:
           "Following a significant amount of monitoring we
       have been unable to definitively link any
       equipment/environmental issues to any particular event.
           "There have been incidents which showed a possible
       correlation between system activity and phanton Txns,
       these pointed to a touch screen problem and as a result
       the screen was replaced with a Resitive model.  As this
       produced no measurable improvement it has to be assumed
       that the problems were user related."
           So that's Mr Carroll's considered opinion having
       done all the tests and changed all the equipment that
       could be changed.
           If one goes back to the previous master PEAK at
       {F/97/9}, his overall conclusion at 12th November 2001
       at 9.48 at the bottom of the page:
           "Phantom Txns have not been proven in circumstances
       which preclude user error.
           "In all cases where these have occurred a user error
       related cause can be attributed to the phenomenon.
           "I am therefore closing this call as no fault in
       product."
           My Lord, that's the conclusion of Mr Carroll who is
       on site and who is the experienced Fujitsu operative.
       In my submission, that opinion should not be rejected.
           So far as is relevant to the Old Isleworth site it
       is also worth noting something about the postmaster
       there.  If one goes to {F/88.2/1}, this is
       15th February 2001.  So we were in July 2002, weren't
       we?  I'm so sorry, we were in September 2001.  That was
       the last entry for Isleworth in the previous F/100.1,
       but this started in 15th February 2001.
           If one goes to the green box at the top about
       halfway down:
           "Outlet went live ... requested further training,
       the PM was referred to his RNM ...  It would appear that
       there is a training issue here which needs to be
       addressed."
           Then PON actions:
           "Has PM completed and passed his training?
           "When, where and with whom did PM complete training?
           "Has further training been considered?"
           One sees that the postmaster seems in need of help.
           Then at page {F/88.2/3}, 20th September, 12.07, the
       main box:
           "PON have written to the RNM to address the training
       issue, see text below.
           "From RNM - I spoke to training and Dev this
       afternoon and arranged 2 days training for next week,
       when I rang Mr Parker he told me that he did not need
       the extra training so I have now cancelled it.  He also
       told me that the phantom transactions have stopped.
           "PON to RNM: There seems to be no issues at this
       outlet if you are happy with the postmasters response.
           "Is there anything else that needs investigating at
       the outlet proven to be directly liked with phantom txns
       (discrepancies?) as there are none recorded?"
           "If not I would like your agreement to close down
       this problem as now resolved. I would like to make you
       aware though that the postmaster does seem to be making
       quite a few calls still to the HSH helpdesk, mainly
       around simple things such as reversals."
           "RNM to PON:  Thanks for making aware about the
       number of calls your still receiving, I don't think we
       will ever stop him from making these.  I see no reason
       why this call cannot not be closed.  As i said the
       Postmaster said he is no longer getting these
       transactions."
           So the changes made didn't seem to change anything
       but then miraculously the transactions stop.  What's
       more, it seems that this postmaster is the kind of
       person that needs more support than perhaps you would
       expect for more postmasters.
   MR JUSTICE FRASER:  What does "PON" stand for?
   MR DE GARR ROBINSON:  My Lord, I would have to take
       instructions.
   MR JUSTICE FRASER:  Don't worry, I will give you a list of
       three-letter acronyms later on.
   MR DE GARR ROBINSON:  I shall look forward to that.
   MR JUSTICE FRASER:  I will give it to both of you so you are
       not the only person who has to ...
   MR DE GARR ROBINSON:  Unless I can assist your Lordship
       further, those would be my submissions on the PEAKs that
       my learned friend went through yesterday.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  Then, with your Lordship's permission,
       I propose to deal with a number of miscellaneous points.
           First of all, number of criticisms made of Mrs Van
       Den Bogerd's evidence.  First of all, she was criticised
       for her treatment of the Helen Rose report and she
       accepted some criticism in her evidence, and my learned
       friend places some emphasis on that in his submissions.
           In my respectful submission, her witness statement
       was clear and fair.  It wasn't right to criticise her.
       If I could ask your Lordship to go to her witness
       statement.  It is {E2/5/34}.  This is to do with the
       Helen Rose report.
           Your Lordship will recall that Mr Coyne in his first
       report made a number of criticisms based on the
       Helen Rose report, including the criticism that
       a transaction correction had wrongly been sent to the
       postmaster in that case.
           At the bottom of page 34 Mrs Van Den Bogerd refers
       to paragraph 5.175 of his report.  She says:
           "The extracts taken from the report by Helen Rose
       ... are taken out of context and mistakenly claim that
       the relevant reversal was issued in error by Horizon,
       not the Subpostmaster.  The Rose report makes it clear
       that:
           "154.1.  The concerns were based on the fact that
       reversals were not being shown on the particular data
       sets reviewed / reports typically run by Subpostmasters
       in branch on Horizon.
           "154.2.  Transaction reversal data can be extracted
       from Horizon;
           "154.3.  The issue was therefore surrounding how the
       transaction reversals were displayed / accessible in
       branch and that there was no issue with Horizon itself."
           Then 155:
           "There is therefore no indication that the reversal
       was not notified to the subpostmaster.  When recovery
       was carried out a discontinued session receipt would
       have been printed and messages would have been clearly
       displayed to the User in branch during the recovery
       process."
           My Lord, in those paragraphs Mrs Van Den Bogerd is
       not saying that the postmaster reversed the transaction.
       She is saying that what happened in the branch was part
       of the reversal process and was correct.  And she was
       saying that the SPM knew about it.
           In my submission, the evidence shows that both those
       points were true.
   MR JUSTICE FRASER:  Both which points, sorry?
   MR DE GARR ROBINSON:  First of all, that the reversal was
       part of the recovery process operating normally, and
       secondly, the SPM knew that the recovery process was
       operating because he received the printed receipts.
   MR JUSTICE FRASER:  You are saying that's what's on the face
       of her witness statement?  Are we at the point of her
       witness statement now rather than her cross-examination?
   MR DE GARR ROBINSON:  Yes, I'm talking about her witness
       statement.  I'm not going to go to her
       cross-examination, my Lord.  What I'm submitting to
       your Lordship is that there was no basis for criticising
       her --
   MR GREEN:  My Lord, I'm sorry to interrupt but she agreed
       that was wrong in her cross-examination.
   MR DE GARR ROBINSON:  What she said in her cross-examination
       was that she didn't intend to suggest that the SPM was
       responsible for the reversal and that's not what she
       says in this witness statement.  So she was right to
       have that intention.
   MR JUSTICE FRASER:  All right.
   MR DE GARR ROBINSON:  So, my Lord, that's point 1 on Mrs Van
       Den Bogerd.
           Point number 2, paragraph 183 of the same witness
       statement {E2/5/42}, she says:
           "Before the change to Horizon Online, a cash check
       was completed in branch by the HFSOs.  Branches were
       notified in advance that this cash check would be
       carried out.  I recall that this mandatory cash check
       across the entire network caused a temporary spike in
       declared losses.  I suspect that this was due to
       branches tidying up their accounts before the cash check
       and therefore losses coming to the surface that had
       previously been ignored or covered up."
           My Lord, it's always dangerous for counsel to say
       this, but I don't understand what the criticism of
       Mrs Van Den Bogerd is here.  She is speaking from her
       own recollection and she remembers a spike in declared
       losses during the period of the mandatory cash check,
       which of course is before the migration to
       Horizon Online.
           She is not purporting to state a considered view
       that having investigated the matter this must be the
       cause.  She specifically qualifies what she says by
       saying:
           "I suspect that this was due to branches tidying up
       their accounts."
           So she lived through the process and she suggests
       a possible reason.  My Lord, that's not speculation on
       which she needed to be challenged by reference to
       Fujitsu documents to which my learned friend sought to
       take her.
           My Lord, furthermore it is worth noting that
       Mr Coyne himself agreed, and had already agreed, that it
       was a likely factor in the spike along with a possible
       increase in bugs during migration to Horizon.
           My Lord, that's in JC2, {D2/4.1/219}.  Perhaps we
       could go to that.
           Paragraph 5.345.  Mr Coyne has referred to certain
       statements made by Dr Worden in the previous paragraph,
       you can see the end of it is in italics, and he says:
           "In my experience, a major change to a platform will
       almost always lead to an increase in bugs, errors and
       other issues.  Therefore, I do not agree that the
       mandatory cash check was 'more likely' to be the cause
       of the spike in 2010.  The most likely scenario is that
       both of these were factors."
           So my learned friend's own expert says it was
       a factor.
           Mrs Van Den Bogerd is talking about the period
       before migration when the mandatory cash checks were
       being done.  My Lord, in those circumstances it was not
       necessary to take Mrs Van Den Bogerd to any documents to
       challenge her evidence.  Her evidence was perfectly
       understandable and needn't have been challenged at all.
       And that's my very brief submission about that.
           My Lord, a third point about Mrs Van Den Bogerd's
       evidence is that in paragraph 35 of the claimants'
       submissions there is a suggestion that she is basing her
       evidence on a document that she didn't actually have
       because it didn't come into existence until after her
       witness statement was made.
           I don't criticise the claimants for doing this but
       they have done this quite a lot.  I can tell
       your Lordship on instructions why it was that the cash
       declaration that they refer to in paragraph 35 -- it is
       not necessary to go to it -- was dated 1st March when
       her witness statement was dated the previous year, in
       November the previous year.
   MR JUSTICE FRASER:  1st March this year then, you mean?
   MR DE GARR ROBINSON:  Yes.  She couldn't explain that in
       cross-examination.
           My Lord, on instructions I'm in a position to
       explain it now.  During preparation for the
       cross-examination of Mr Patny, my instructing solicitors
       realised that they didn't have a copy of that particular
       declaration and so they requested it from Post Office.
       That was on 1st March.  My Lord, that was the document
       that was then hyperlinked to Mrs Van Den Bogerd's
       statement.  She doesn't specifically say "I refer to
       a cash declaration".  The fact is she had seen a cash
       declaration.  She had seen it a long time before, but it
       was the same data just obtained on a different date.
           So the fact that the date on that particular
       document post-dates the date of her witness statement
       doesn't mean that she didn't have sight of the same
       information previously; she certainly did have.  That's
       why one sees it.  She makes a number of statements about
       it which are correct.
           My Lord, a similar claim made in the claimants'
       written closings about the evidence of Mr Membery, who,
       as your Lordship is aware, was unable to give evidence.
       It is at paragraph 123(c) of their submissions.  It is
       to the effect that Mr Membery refers to a document that
       has been produced to him by Mr Lenton but the metadata
       on the document suggests that the document was produced
       by someone called BH.
           My Lord, I can tell your Lordship on instructions
       that the version of that document received by my
       instructing solicitors from Fujitsu recorded that it had
       last been modified by Mr Lenton.  How BH's name got on
       it and who BH is they have no idea, and my instructing
       solicitors are happy to provide that document in native
       form if my learned friend would wish to see it.
           My Lord, another miscellaneous point.  Criticism is
       made of Mr Johnson in my learned friend's closing
       submissions.  He is criticised because he didn't know
       the source of a screenshot.  My Lord, it did not matter
       where the screenshot came from.  What mattered was
       whether it was a true screenshot.  It was not from the
       Horizon guide, but Mr Johnson did not claim that it came
       from the Horizon guide.
           If I could ask your Lordship to go to {E2/4/2}.  At
       paragraph 10 you will see that Mr Johnson says:
           "The screenshots that appear in this statement are
       primarily taken from a document called Post Office
       Onboarding Counter Guide ... Where a screenshot has been
       taken from another document I refer to that document."
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  My Lord, Mr Johnson didn't know where
       the particular screenshot had come from but he did know
       that it was a proper screenshot, and that's the short
       point.
           And indeed it was.  My Lord, another criticism made
       of the claimants' witnesses relates to the
       cross-examination of Mrs Burke.  It was suggested in the
       claimants' closing submissions that because Mrs Van Den
       Bogerd's witness statement was only amended shortly
       before she went into the box, that enabled my learned
       friend Mr Draper to criticise Mrs Burke on the basis of
       a false apprehension of the facts to be collected from
       the unamended witness statement.
           My Lord, this related to the fact that in Mrs Burke
       had undertaken three transactions for several different
       customers all in one basket, which of course is not
       proper procedure.  And she explained why.  She very
       fairly explained why in her witness statement: it was
       because Horizon was playing up.
           But what was suggested to her was, first of all,
       that was a breach of procedure as it evidently was, and
       secondly, it was suggested to her that by doing that she
       increased the risks of unfortunate things happening.
       For example, if there was a failure it might well be
       that the failure would relate to a transaction in
       relation to which the customer was long gone.
           My Lord, that was all that was put.  No criticism
       was made of Mrs Burke and, more importantly, no
       suggestion was put to her that her having undertaken
       a series of different transactions all within one
       basket, that had a causative effect on the issue that
       she then faced when there was a system outage on
       9th May.
           My learned friend's suggestion that a false case was
       improperly put to Mrs Burke on the basis of an unamended
       witness statement of Mrs Van Den Bogerd's is simply
       unfounded, and it is an unfair criticism and
       I resist it.
           My Lord, I'm going to finish with some very brief
       submissions in relation to audits.  A number of
       submissions are made about audits in the claimants'
       closings.  I can pick them up really at paragraph 620 of
       the claimants' closings, which is at page {A/5/217}.
           Picking it up at (c) at page {A/5/220}:
           "The purpose of these audits is to provide
       assurances to Post Office and its auditors about the
       risk of material misstatements in Post Office’s
       financial statements.  The audits themselves expressly
       state that they 'should not be used by anyone other than
       these specified parties'."
           So there is a claim.
           Your Lordship will recall that there were a number
       of financial audits done by Ernst & Young for
       Post Office, including in 2011 and 2013.  They are the
       documents that spring to my mind as being relevant.
   MR JUSTICE FRASER:  I think you just read from page 217 and
       you said page 217, but I followed it perfectly
       adequately.
   MR DE GARR ROBINSON:  I'm grateful.  I read from page 220
       and I may have given the wrong page number.
   MR JUSTICE FRASER:  No, you said 220 but in mine it is 217.
       But that could be because I'm using the hard copy.
   MR DE GARR ROBINSON:  I see.  My hard copy version seems to
       be different, I'm so sorry.
   MR JUSTICE FRASER:  Don't worry.  Just pause one second.
           On the common screen we have got page 217, which
       starts with paragraph (a) and runs down to (g) and has
       621(a) and (b), which is what my version has.  Have you
       got a different version?
   MR DE GARR ROBINSON:  My version has page 220.
   MR JUSTICE FRASER:  I do not think it has come up before so
       I do not think it is an issue.  But I have got the right
       paragraph and I followed you reading it.
   MR DE GARR ROBINSON:  I'm grateful.
           But in subparagraph (c) {A/5/217}, a factual claim
       is made, which is that there are Post Office's financial
       audits is one thing and then there are the service
       audits that were done for Fujitsu.  And the suggestion
       is being made that the service audits were just about
       Post Office's financial statements.
           My Lord, in my submission that is demonstrably
       wrong, and if we could look at the document referred to
       in the submission, {F/1041/9}, please:
           "Intended use.
           "This report, including the description of tests of
       controls and results thereof in the Description of Tests
       and Results, is intended solely for the information and
       use of Fujitsu, POL as the user of the IT support
       processes and controls used by and on behalf of Fujitsu
       to support the HNG-X and POLSAP applications during some
       or all of the period ... and the independent auditors of
       POL, who have a sufficient understanding to consider it,
       along with other information including information about
       controls implemented by user entities themselves, when
       assessing the risks of material misstatements of user
       entities' financial statements."
           So your Lordship will see two things.  First of all,
       the intended users are not just the auditors when
       auditing.  The intended users include Fujitsu itself and
       Post Office as the user of the IT support processes
       provided by Fujitsu.  That's point 1, and point 1
       demonstrates that the submission made in (c) that we saw
       before was incorrect.
           Point 2 is wider really, which is there is
       an interesting, how can I put it, tension in the
       claimants' attitude because on the one hand they are
       very happy to trumpet the reliability of Ernst & Young's
       financial audit when referring to the 2001 E&Y
       management letter, but when it comes to a document which
       is helpful to Post Office they suddenly say, well, it is
       just financial misstatements, it's got nothing to do
       with the price of fish.
           So, my Lord, those are the two submissions I derive
       from that page.
           Finally, it is worth adverting in this context to
       the evidence which Mr Coyne gave on {Day16/188:1}.  We
       needn't go to it, but on that page Mr Coyne accepted
       that the service audits are more specific than general
       financial audits.
           My Lord, if we can go back to the closings, that
       will be at {A/5/217}, I believe, we see another claim
       that's made by the claimants.  (d):
           "The control objectives and controls are selected by
       Fujitsu rather than the auditor ..."
           What the claimants are trying to do here is they are
       faced with a series of audits that essentially are very
       positive about Fujitsu's approach to the IT support that
       it is giving, all the way from 2012 through to 2017.
           So here they are trying to think of points which
       will somehow undermine the value of those audits.  And
       what they are suggesting in (d) is that somehow Fujitsu
       is marking its own homework.  It has self-developed the
       test which it is to be inferred therefore has no real
       value and cannot be taken as a justification for
       anything.
           But, my Lord, first of all, there is no proper basis
       for suggesting that Fujitsu would have developed tests
       that had no value in this context.  Secondly, if one
       goes back to the document, so this is {F/1041/8},
       please -- I'm so sorry, I'm afraid I haven't marked up
       this document.  If your Lordship will give me a moment.
   MR JUSTICE FRASER:  Don't worry.
   MR DE GARR ROBINSON:  Yes.  Top of the page.  This is
       Ernst & Young describing the work it was doing:
           "An assurance engagement to report on a description
       of a service organisation's system and the suitability
       of the design and operating effectiveness of the service
       organisation's controls to achieve the related control
       objectives stated in the description involves performing
       procedures to obtain evidence about the fairness of the
       presentation of the description and the suitability of
       the design and operating effectiveness of those controls
       to achieve the related control objectives stated in the
       description."
           My word, that is a six-line sentence:
           "Our procedures included assessing the risks that
       the Description is not fairly presented and that the
       controls were not suitably designed or operating
       effectively to achieve the related control objectives
       stated in the Description."
           So your Lordship will see the auditors weren't
       simply taking a test that was given by Fujitsu and
       blindly applying it, they were also assessing the risks
       involved in the relevant functions and assessing the
       suitability of the design of the controls.
           Then it goes on:
           "Our procedures also included testing the operating
       effectiveness of those controls that we consider
       necessary to provide reasonable assurance that the
       related control objectives stated in the Description
       were achieved.  A reasonable assurance engagement of
       this type also includes evaluating the overall
       presentation of the Description, the suitability of the
       control objectives stated therein and the suitability of
       the criteria specified by the service organisation and
       described in the Assertion."
           So what Ernst & Young are saying there is that not
       only did they audit the processes to ensure that the
       control objectives were met, but they also evaluated the
       suitability of the control objectives in the first
       place.
           So this wasn't simply them jumping over a hurdle
       that Fujitsu had very conveniently placed for itself.
       It was Ernst & Young evaluating the value of that very
       hurdle itself.  I hope I put that point clearly.
   MR JUSTICE FRASER:  Yes.  As I understand it, Fujitsu
       specify the control objectives and the service auditors'
       responsibilities, which actually start on the previous
       page, on page {F/1041/7}, are described in detail in
       those two full paragraphs?
   MR DE GARR ROBINSON:  Yes.  Those functions include
       evaluating the objectives in the first place; in other
       words, making sure that the objectives that they have
       been told to test for are appropriate objectives to
       test for.
           My Lord, that's my submission on the suggestion that
       appears to be made in paragraph (d) in paragraph 620 of
       the closing submissions, that there's something wrong
       with the objectives because Fujitsu selected them.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  My Lord, (f) in paragraph 620 on
       page 217 of the closing submissions:
           "Much of the content of these audits has been simply
       cut and pasted from one year to the next. (Eg for
       control objective 10, which Dr Worden relied upon, the
       tables within the audits for 2013 and 2014 are
       identical, and likewise for 2015 and 2016 ..."
           My Lord, difficult to know what to make of that
       submission.
           It is added to in (g), where it is said:
           "Dr Worden said he had noticed that quite a lot of
       the wording was very similar or identical from one year
       to the next ..."
           There appears to be an intention, I may be wrong,
       but so far as I can tell it may be intended to achieve
       the implication that somehow Ernst & Young weren't doing
       a proper job, it was simply repeating words it had said
       previous years.  If that is the suggestion, there's
       absolutely no basis for it.  Given that they were every
       year evaluating and assessing similar objectives it is
       not surprising to see them use the same language if
       their views remain the same.
           My Lord, if that's not being suggested I don't
       understand what the relevance of the submission is and
       I invite you not to understand it as well.
           My Lord, that leaves a submission in (e), which is
       that:
           "The audit expressly excludes the auditor giving any
       opinion on application processing and application
       controls."
           My Lord, difficult to know what that submission
       means.  In my submission, the control objectives and the
       conclusions drawn in relation to those control
       objectives mean what they say.  It wouldn't be right to
       somehow construe Ernst & Young's opinions as somehow
       having no application to Horizon system or the like if
       that's the intended implication.
           My Lord, finally, paragraph 621 {A/5/217}.  This is
       where the claimants cut to the chase.
           They say:
           "The only one of the EY audits which significantly
       advances the parties' understanding of the issues in
       this litigation is in fact the 2011 EY audit ..."
           My Lord, all these comments in relation to the
       service audits which actually are more specific than the
       financial audit in 2011, all these arguments are
       designed somehow to dismiss the value of the service
       audits.  And in my submission it wouldn't be right to do
       that.
           Secondly, it wouldn't be right also to suggest that
       all that matters is the 2011 EY audit.  What should also
       be borne in mind, for example, is the 2013 EY audit.
       I needn't go to the document, but for your Lordship's
       note the reference is {F/1138/1}.
           At page 4 of that document it records that
       management action has addressed many of the issues
       raised.  At page 7 of that document it praises the
       efforts taken to strength the control environment.
       My Lord, in my submission, that advances the parties'
       understanding of the issues in this litigation.
           My Lord, your Lordship may be really rather
       exhausted by the miscellaneous points/submissions that
       I have to make.  I do have time to make one final
       submission and then I will stop, you will be pleased to
       know.
   MR JUSTICE FRASER:  I'm not remotely exhausted by them.
   MR DE GARR ROBINSON:  Perhaps it is just me.
           My Lord, it is a criticism that's made quite
       forcefully in the closing to the effect that Post Office
       didn't behave with candour because when it had
       corrections for its witness statements it would produce
       a document setting out those corrections rather than
       producing a red-lined version, an amended witness
       statement.
           I say this some trepidation because your Lordship's
       experience may be completely different from my own, but
       I have to tell your Lordship that neither I nor members
       of my team have ever encountered an amended witness
       statement that has been amended in the way the
       claimants' witness statements are amended.  I have to
       say personally I feel a certain amount of discomfort,
       just because of habit, I think, of amending witness
       statements that way.
           So suggesting that Post Office is at fault for not
       adopting a practice which to me is an innovation is, in
       my submission, rather unfair.  It is inappropriate in my
       submission to make criticisms of Post Office because its
       legal team did things in the traditional way.
   MR JUSTICE FRASER:  Well, I have seen them done in three or
       four different ways and the way you have adopted was not
       unconventional.
   MR DE GARR ROBINSON:  I'm grateful.
           My Lord, I would finish on this point by suggesting,
       by speculating really, what would Mr Roll's witness
       statement look like if it had been amended to reflect
       the evidence he gave in open court.
           Unless I can assist your Lordship further, those are
       my submissions.
   MR JUSTICE FRASER:  Your closing submissions in toto rather
       than the end of the miscellaneous section?
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  All right.  Well, I have got some
       questions for you.  We have also got a bit of
       housekeeping, but it is not going to be very much.
   MR DE GARR ROBINSON:  Actually, on housekeeping matters,
       there has been some discussion between Mr Green and
       Mr Henderson about the suggestion that your Lordship
       made yesterday about a mechanism for identifying the
       source for various statements contained in appendix 2.
           My Lord, we would suggest the simplest route would
       be for the claimants to provide us with a version of
       appendix 2 which marks in highlight particular passages
       for which they don't understand the support relied upon.
           If that's provided by a certain date then my team
       can respond by a certain date by explaining the source
       with a footnote.
   MR GREEN:  My Lord, I did mention to my learned friend
       Mr Henderson that we are already partway through
       producing overnight, the efforts of the entire team,
       a table which is confined only to those points
       your Lordship mentioned, which is where no evidential
       support is identified.
   MR JUSTICE FRASER:  All right, I'm not going to deal with
       this now.  We are going to have a short break for the
       shorthand writers.  We will come back, I won't deal with
       housekeeping straightaway because I have some questions
       on your submissions.
   MR DE GARR ROBINSON:  I should not have --
   MR JUSTICE FRASER:  Which I will deal with then and then we
       will deal with housekeeping.
           There's that point plus another one and then we are
       going to deal with the rest of 2019.
   MR GREEN:  My Lord, we have a couple of references by way of
       factual correction only to hand up to the court.
   MR JUSTICE FRASER:  We do.  Or I do, not using the royal
       plural -- these breaks are for the writers, they are not
       for me or for you, although I know most people look
       forward to them, particularly people who are not on
       their feet.  But I don't think it is going to take
       longer than about 20 minutes.  But I think out of
       fairness I will break for them and then we will have the
       20 minutes.
   MR GREEN:  Of course.
   MR JUSTICE FRASER:  In view of the fact we are so gloriously
       ahead of schedule, let's come back at 3.25 pm.
   (3.15 pm)
                         (A short break)
   (3.25 pm)
                           Housekeeping
   MR JUSTICE FRASER:  The first point I actually confirmed
       with you during your submissions.  It was that the
       Horizon Issues were drafted and agreed by the parties
       and approved by me.  I do not think they were imposed on
       the parties.  But you confirmed that this morning.
           I'm fairly sure I know the answer to this question
       but I just want to be very clear just because the nature
       of the word might, or has been so contentious.  Insofar
       as the place I go for a benchmark definition of
       robustness, I intend, unless you tell me I should go
       somewhere else, to go to your pleading because you
       define it in your pleading.
   MR DE GARR ROBINSON:  Sorry, I'm not sure I understand
       your Lordship's question.
   MR JUSTICE FRASER:  Well, robustness, the experts have
       agreed a particular meaning.  I asked Mr Green where
       I should go for his meaning yesterday and he told me,
       made submissions.
           I would ordinarily, and I have looked at your
       pleading quite carefully.  Where you do define
       robustness?
   MR DE GARR ROBINSON:  Do you know, I'm afraid I need to
       remind myself.  Could we go to my pleading, my Lord?
           It is a slightly impertinent thing to ask the judge.
   MR JUSTICE FRASER:  I am sure it is your pleading, but
       I might be wrong.
           My private screen seems to have stopped working for
       some reason.  It will be in the C bundle somewhere.
   MR DE GARR ROBINSON:  {C3/3/1}.  It will be referred to in
       the Horizon Issues, won't it?  I'm so sorry, my Lord.
   MR JUSTICE FRASER:  Not at all.
   MR DE GARR ROBINSON:  Mr Draper is suggesting paragraph 16
       on page 5, so he'll get all the blame if he's wrong.
   MR JUSTICE FRASER:  So {C3/3/5}, paragraph 16.
   MR GREEN:  My Lord, yes.
   MR JUSTICE FRASER:  I didn't bring the reference to your
       pleading with me but I did look at it very recently, so
       I'm pretty sure that's likely to be right.
   MR DE GARR ROBINSON:  So what's pleaded in paragraph 16 is:
           "Like any other IT system, Horizon is not perfect,
       but Post Office maintains that it is robust and that it
       is extremely unlikely to be the cause of losses in
       branches.  Its design and technical controls, when
       supplemented by the various accounting and cash controls
       applied in branches, make it very unlikely indeed that
       an error in Horizon could affect a Subpostmaster's
       financial position and go undetected."
           Is that the paragraph your Lordship had in mind?
   MR JUSTICE FRASER:  On the basis I haven't got that
       paragraph you have just read in front of me on either
       screen.  Just to put your mind at rest, it is not
       designed to be a trick question.
   MR DE GARR ROBINSON:  No, and I'm not trying to be clever
       either, my Lord.  Every time I do try I always come a
       cropper.
   MR JUSTICE FRASER:  I have now lost it off the common screen
       as well.  Give me one second.
           The short point is that the experts in different
       places discuss robustness in more or less expert terms.
       They also agree robustness in one of the joint
       statements.  I asked Mr Green the specific question
       yesterday where I go for his benchmark definition of
       what robustness is and I wanted just a similar reference
       from you.
   MR DE GARR ROBINSON:  My Lord, I would not say that
       paragraph 16 is a definition.  I would submit that
       a system that is robust is extremely unlikely to be the
       cause of losses in branches.
   MR JUSTICE FRASER:  Quite.
   MR DE GARR ROBINSON:  It has the features referred to in the
       rest of that paragraph {C3/3/5}.
           My Lord, my submission would be that it is
       consistent with the answers that Mr Coyne gave when
       I asked him to unpack what he meant by "relatively
       robust" when he identified comparable systems, and then
       he identified the condition under which comparable
       systems needed to operate and he said Horizon compared
       well with those conditions.
   MR JUSTICE FRASER:  I know, and I have gone through that in
       some detail.
   MR DE GARR ROBINSON:  I'm grateful.
   MR JUSTICE FRASER:  In fact, probably the best thing to do,
       and it is really just a request for a reference, I would
       just be grateful for a reference from you for the best
       place to go for -- I used the phrase loosely
       yesterday -- a benchmark definition of robustness.  If
       one is describing robustness in specific terms this is
       what it is.
   MR DE GARR ROBINSON:  My Lord, I will --
   MR JUSTICE FRASER:  It is just going to be a reference.
       I do not think it is this passage in your pleading
       actually because I was looking in your pleading, I was
       looking in all the pleadings, and that is not the one
       that jumped out at me.  But I'm not going to tell you
       where the best place is, that's rather why I was asking
       the question.
   MR DE GARR ROBINSON:  My Lord, I will try to resist the
       inevitable urge that barristers are subject to --
   MR JUSTICE FRASER:  I don't want a fresh definition.
   MR DE GARR ROBINSON:  Exactly.  I will try and avoid all of
       that.  But it may be I will be referring to a number of
       different documents.
   MR JUSTICE FRASER:  That's perfectly in order, but I just
       want somewhere to go to so when I'm explaining, probably
       quite early on in the judgment, what robustness is,
       I can explain by reference to a specific -- the way in
       which the defendant construes the word "robustness",
       because it is obviously different from what the
       claimants are suggesting.
   MR DE GARR ROBINSON:  I need to remind myself of where the
       claimants' definition is, but that's my problem.
   MR JUSTICE FRASER:  I do not think I got one, but I got
       an explanation of why there wasn't one.
           So that was supposed to be an easy starter, that
       one.  We will see about that.
           The next point is essentially -- I suppose it could
       be seen as an extension of the appendix 2 exercise, but
       yesterday Mr Green took me to your closings at page 68
       and paragraph 147.4.
   MR DE GARR ROBINSON:  68?
   MR JUSTICE FRASER:  Yes.  Paragraph 147.4.
   MR DE GARR ROBINSON:  My Lord, I have it.  {A/6/68}
   MR JUSTICE FRASER:  Which what it says about the adoption of
       section 1.4 of the relevant document and when it was
       adopted.  I beg your pardon, when it was implemented.
           Now, that's either evidence or it is a submission.
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  He says it is a submission, it wasn't in
       any of the evidence.
   MR DE GARR ROBINSON:  My Lord, it is my instructions but,
       my Lord, it is based upon a previous version of the
       document and then an amended version of the document.
       And I will undertake to give your Lordship the two
       references.
   MR JUSTICE FRASER:  And the dates on documents.
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  If you could give me those references
       that would be great.
   MR DE GARR ROBINSON:  If my understanding of those documents
       is incorrect I will withdraw the --
   MR JUSTICE FRASER:  All right.  That's helpful, thank you.
           The next point is -- and you won't be able to give
       me this now, but just if it could be added to the
       references I'm going to be sent -- could I have
       a reference, please, to the ruling that I made at the
       PTR about Mr Henderson -- the witness, not counsel --
       and the Second Sight report.  Because within the
       transcript of that hearing when one gets to my ruling
       there is just a bracket that says "see separate ruling".
           I am sure it is there somewhere, I just don't know
       where it is and I would like to know.
   MR DE GARR ROBINSON:  We will look for it.
   MR JUSTICE FRASER:  Appendix 2 we will come onto in
       a moment.
           There are the following acronyms I would just like
       to know what they stand for.  Two are from today, one is
       yesterday.  Yesterday's was RPOS.  So R-P-O-S, RPOS.
       Today's were SIL and the one this afternoon, PON.
       I would just like to know what they are.
   MR DE GARR ROBINSON:  My Lord, yes.  It will be something
       like retail point of sale --
   MR JUSTICE FRASER:  I was tempted to guess and I decided
       I wouldn't and I would like to know what they are,
       please.
   MR DE GARR ROBINSON:  That will be done.
   MR JUSTICE FRASER:  Then the appendix 2 exercise, and this
       again is not supposed to be controversial but I think
       from your side, Mr de Garr Robinson, you said can they
       highlight it with highlighter and they may have started
       doing the exercise in a different way.  Is that right,
       Mr Green?
   MR GREEN:  Yes, we have a table just identifying roman
       paragraphs.
   MR JUSTICE FRASER:  I do not think anyone is going to go to
       the stake on the difference.
   MR DE GARR ROBINSON:  If they want to do unnecessary work
       I won't stop them.  I was anxious that there shouldn't
       be any hidden submissions, but my learned friend has
       assured me that isn't the position so it is just
       a matter of dates.
   MR JUSTICE FRASER:  Of dates, yes.  Well, actually, there is
       more than just dates, there's something I want to make
       clear because I'm very anxious to do two things.  One is
       not to create unnecessary expensive work and the other
       is not to lead to fresh rounds of submissions.
           When you are responding to that, Mr de Garr Robinson
       and your team, it seems to me there are one of three
       available alternatives: a reference to a witness
       statement; a reference to an expert's report; or just
       the word "submission" to demonstrate that it is
       a submission.
   MR DE GARR ROBINSON:  My Lord, what about a reference to
       a document or a reference to commonsense?
   MR JUSTICE FRASER:  All right.  Well, let's have a look at
       appendix 2.
           By reference to commonsense, do you mean a statement
       of the blindingly obvious?
   MR DE GARR ROBINSON:  Yes.  Or words to that effect.
   MR JUSTICE FRASER:  All right.  Well, then we will add the
       following alternatives: reference to a document and then
       in brackets it has to be said if that document was put
       to anyone or not.
   MR DE GARR ROBINSON:  Okay.
   MR JUSTICE FRASER:  And then the fifth one, I will adopt
       your nomenclature and we will say commonsense.
   MR DE GARR ROBINSON:  I'm grateful.
   MR JUSTICE FRASER:  So those are the five alternatives.
   MR DE GARR ROBINSON:  I understand.
   MR JUSTICE FRASER:  The ones we were shown yesterday, I'm
       not necessarily sure any of them jump out at me as
       commonsense, but as I said yesterday some of them, for
       example, the notion of slave units and a master unit,
       that is commonsense within the IT world and I have
       a degree of commonsense in that respect.  And if,
       following the commonsense answers, I need any more
       information, then I will ask.
   MR DE GARR ROBINSON:  I see.  So, for example, slave and
       master, I am sure there are documents about that because
       I'm familiar with the concept, yes.
   MR JUSTICE FRASER:  All right?
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  I would just like to make this clear for
       everyone's benefit.  This is not designed to be a new,
       expensive, lengthy grinding exercise.  It is just so
       I have everything marshalled in one place.
           Right, well, that's everything from me.  Mr Green,
       you were proffering a piece of paper and I asked you to
       take your seat.
   MR GREEN:  My Lord, just a couple of points of
       clarification.
   MR JUSTICE FRASER:  Thank you.
   MR GREEN:  Yesterday my learned friend said that the double
       trouble document references, he thought that many of
       them he hadn't seen at all before.  So they are all the
       references to where they are in the evidence in these
       proceedings, including in the Post Office's own
       submissions.  That's the first page.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  Drafting of Horizon Issues 1 and 3, the short
       point is the words were carefully chosen.  We were
       asking for caused as a separate issue, and potentially
       caused.  That was resisted by the defendant.  In the end
       we got a careful agreement on what the wording actually
       is and my learned friend's speculation about potential
       being what he said is just not available when one looks
       at how that happened.  And (c) is 18.7 should be million
       in shortfalls.  We are not able to, at this stage,
       disaggregate the extent to which they were caused by
       bugs, errors and defects, erroneous TAs or TCs, helpline
       advice etc at this stage, but that is the figure in the
       SOCIs.
           And disclosure, my learned friend said regarding the
       disclosure issues, a dead letter from August to
       December, there are the intervening references and then
       we just added this afternoon in handwriting in relation
       to EY audits, Dr Worden, his understanding of
       application processing meaning SSC was out of scope and
       the reference to the transcript where he said that.
   MR JUSTICE FRASER:  Yes.
   MR GREEN:  In the ISAE audits and then over the page just to
       give the context to the KELs' complaint, the history of
       them said not to be in Post Office's control.  There are
       lots of other references, we only put four there.  There
       was obviously an RFI about it as well.  It was
       identified as an issue in the pleadings and maintained
       in the CMC in October 2017 when your Lordship was
       specifically asked about it.
   MR DE GARR ROBINSON:  Why is my learned friend -- just going
       through this list, obviously I will need to look at the
       drafting of Horizon Issues 1 and 3, but your Lordship
       has my submissions on what the document means.
           My Lord, application processing.  My submission
       about that is that what was excluded from the service
       audit was any kind of audit by Ernst & Young of the
       operation of Horizon itself, the software and how good
       Horizon itself was.  What wasn't excluded was the
       controls that was applied by and on Fujitsu in relation
       to the support it provided in relation to Horizon.
   MR JUSTICE FRASER:  Yes.
   MR DE GARR ROBINSON:  It is important your Lordship has that
       submission.  If it is suggested that my learned friend
       or that Dr Worden suggested otherwise, I will have
       a look at that.  But I would be surprised if that's what
       he said.
           Then there is this paragraph (f).  I don't know why
       my learned friend has even mentioned it.  Is there some
       objective being achieved by it?
   MR GREEN:  My Lord, it was just in relation to the
       disclosure history which was an issue my learned friend
       responded to.
   MR JUSTICE FRASER:  Can one of you just give me the
       reference to the contract between Fujitsu and the
       Post Office which I know was produced and put to
       Dr Worden in re-examination?
   MR GREEN:  My Lord, the contract itself is at {F/1659.2/868}
       I think is the one with paragraphs 25.8 and 25.10 and so
       forth about court assist.  Court support.
   MR JUSTICE FRASER:  I am sure if I consider it necessary to
       look at it I will look at it.  If I consider I need any
       submissions about it, I will ask for them in writing.
       Does that seem a sensible way forward,
       Mr de Garr Robinson?
   MR DE GARR ROBINSON:  My Lord, yes.  If your Lordship is
       minded to make some kind of finding on the basis of the
       contract, I would welcome the opportunity to make
       submissions, although I have no idea what those
       submissions would be.
   MR JUSTICE FRASER:  All right.
   MR DE GARR ROBINSON:  If you understand what I'm saying.
   MR JUSTICE FRASER:  I do.  In other words, if I'm going to
       look at it for any material reason I should give you
       both, I would give you both the opportunity to --
   MR DE GARR ROBINSON:  I'm grateful.
   MR JUSTICE FRASER:  Because the document is there, I have
       looked at it on a speed read basis.  Only one part of it
       was put to Dr Worden in relation, I think, to the cost
       of making ARQ requests.
   MR DE GARR ROBINSON:  That was by me.
   MR JUSTICE FRASER:  By you.  Well, I think you said when you
       introduced the document you had had it uploaded for that
       purpose.
   MR DE GARR ROBINSON:  Yes.
   MR JUSTICE FRASER:  I didn't even know if it was in play
       before that, to be honest.
           Right.  Just remind me, Mr Green, what does TA
       stand for?
   MR GREEN:  The transaction acknowledgements, which are the
       automatic ones from National Lottery.
   MR JUSTICE FRASER:  Because TCs used to be called error
       notes for the first four years.
   MR GREEN:  They did, and then they came in, and then TAs are
       the ones that you can't do anything about at all.
   MR JUSTICE FRASER:  So far as Horizon Issues, other than the
       fact that there's a judgment to be written, is that
       everything?
   MR DE GARR ROBINSON:  My Lord, I do hope so.
   MR JUSTICE FRASER:  I think it is.  Apart from obviously
       appendix 2 and the reference point.  That then brings us
       onto the second part of 2019.
           At the moment there are the following dates in 2019
       which are in the diary and have already been subject to
       orders by me.  23rd July; 18th September; they are both
       the CMCs.  The 17th October, which is down as
       a pre-trial review, and then a trial starting on
       4th November on the limitation issues.
           It does not seem to me that those dates are
       necessarily either should stay there or are achievable
       certainly, so far as a limitation trial is concerned,
       because they were set when this trial was supposed to
       finish at the very end of -- well, originally early
       April and now it is obviously 2nd July, therefore,
       I'll -- is this now your part of ship Mr Henderson?
           Mr Green, what do you have to say about it, if
       anything?
   MR GREEN:  I understand the solicitors on both sides have
       discussed it and rather taken up your Lordship's
       suggestion of maybe having a CMC in September rather
       than July when we will know more, we are not sure how
       much more, but we will know more and --
   MR JUSTICE FRASER:  When you say you will know more though,
       the only piece of information I think you will know is
       how far I'm on in writing the judgment because I do not
       think I will have been able to finish the judgment by
       the middle of September.
   MR GREEN:  My Lord, that's slightly why I am putting it
       lightly in those terms.
   MR JUSTICE FRASER:  Right.
   MR GREEN:  We might have an idea of the timeline on that.
       In those circumstances the parties solicitors' have had
       discussions and subject to obviously your Lordship's
       view, are agreeable to the November listing coming out
       if it can't be used for proportionality reasons.
       Your Lordship should know there are also discussions in
       parallel about how holding a mediation --
   MR JUSTICE FRASER:  You don't need to tell me anything about
       that.  Well, at one point I think before the Common
       Issues trial when we were scoping the group litigation
       generally, you asked me for a three-month stay and
       I told you I didn't have one.
   MR GREEN:  I think there may have been a slight
       misunderstanding but I know what your Lordship means.
   MR JUSTICE FRASER:  When I say don't tell me about the
       mediation what I mean is unless you are asking me to fix
       a timetable around periods of time, you don't need to
       trouble me with that.
   MR GREEN:  My Lord only to have in mind that it would be
       helpful not to have anything too compressed happening in
       late October, that we can get to that in September.
   MR JUSTICE FRASER:  All right.  When you said the November
       trial coming out.
   MR GREEN:  My Lord, yes?
   MR JUSTICE FRASER:  There is another trial date in 2020.
   MR GREEN:  Precisely, for which we can consider directions
       in September.
   MR JUSTICE FRASER:  All right.  Okay Mr Henderson?
   MR HENDERSON:  My Lord, I'm grateful for the indication in
       relation to the November trial and certainly the parties
       are agreed that that's not feasible really to use that
       date at the moment.  The question really is when
       your Lordship lists the further issues trial, which is
       referred to in the orders.
           If we are to use the current date which
       your Lordship has put aside for the fourth trial, which
       is four weeks commencing on 2nd March, the question that
       really arises is: what steps need to be taken in advance
       of that?  Can I just ask your Lordship, I appreciate
       your Lordship is, in light of the dates your Lordship
       has just recounted to the court, you have probably
       already looked at the seventh CMC order, but if I could
       just ask your Lordship briefly to look at it.  It is at
       {C7/39/1}.
           What your Lordship will see is the various steps
       from paragraph 3 of that order.  Does your Lordship have
       that on the screen now?
   MR JUSTICE FRASER:  I have page 1.  Is that what you are
       asking me?
   MR HENDERSON:  Actually if you go to step 2 you will see the
       steps that have been ordered.  3.1 and 2 have taken
       place, but from 3.4 all the way up to 20.2 is currently
       the subject of a stay.  So where we --
   MR JUSTICE FRASER:  And that's the stay that was agreed
       I think in the interregnum period?
   MR HENDERSON:  Exactly so my Lord, on 12th April.  If
       your Lordship casts an eye down that you will see that,
       absent that stay, we would now be in the position of
       having completed the first round of disclosure;
       pleadings would be very nearly completed; principal
       pleadings would be incompleted; we would have particular
       claims and defences; replies would be shortly due and we
       would also be about to embark upon the second round of
       disclosure referred to as extended disclosure.
           We would also be about to convene a costs and case
       management conference on 23rd July.  So there is a great
       deal of activity and you will see that if you carry on
       in those directions you will also see -- I appreciate
       your Lordship has these points in mind -- that there is
       also a directions for the identification of the issues
       that would form part of the fourth trial and that's in
       paragraphs 13 to 17.{C7/39/4}
           All of that is currently stayed.  We would
       respectfully support the suggestion that the further
       issues trial be vacated and re-listed for the 2nd March,
       which is currently the slot that's being held for the
       fourth trial, so in other words we use that slot for the
       third trial.
           The only question is as to how we arrive at detailed
       alternative, updated directions for all of this.  My
       concern -- our concern is that if we use the
       18th September CMC we might not be leaving ourselves
       enough time because if nothing has happened and the stay
       remains in place and nothing has happened and we come
       before your Lordship on 18th September, we have only got
       a relatively compressed period to do an enormous amount
       of work; and my respectful suggestion would be that the
       parties liaise now, try to agree those steps, but in
       default of agreement or in default of the court's
       approval of any such agreement that we arrive at, we use
       the 23rd July appointment to try and --
   MR JUSTICE FRASER:  At the moment everything is stayed
       except the Horizon Issues.  You are not asking me to
       lift the stay?
   MR HENDERSON:  I'm not asking you to lift the stay.
   MR JUSTICE FRASER:  But you would like the 23rd July kept
       in?
   MR HENDERSON:  I am only asking that the November trial be
       vacated and re-listed for 2nd March; that the parties be
       directed to liaise to try and agree directions leading
       up to that trial and in default of agreement, we come
       back on 23rd July so that we can have a timetable in
       place in July rather than in September leading up to
       that --
   MR JUSTICE FRASER:  You mean have a timetable ordered in
       July to cover the period July to March rather than wait
       until September?
   MR HENDERSON:  Indeed so, my Lord.
   MR JUSTICE FRASER:  By definition, therefore, one of the
       things you are going to be seeking either on 23rd July
       by asking me or before that by seeking agreement of the
       claimants is the lifting of the stay?
   MR HENDERSON:  Yes, I think it would be part of the
       agreement.
   MR JUSTICE FRASER:  Unless I suppose you could both decide
       that the stay will be lifted on date X and this
       direction will start after that date?
   MR HENDERSON:  Absolutely.  My learned friend has already
       indicated that there is discussion of a possible
       mediation, that needs to be borne in mind.  There are
       other things happening.  Your Lordship obviously is
       going to be preparing the Horizon Issues judgment.
       There is the application for permission to appeal in
       front of the Court of Appeal.  The Court of Appeal has
       indicated we won't get a decision on permission until
       September/October probably.
   MR JUSTICE FRASER:  But that doesn't factor into anything
       that is happening at first instance.
   MR HENDERSON:  I'm not suggesting that it does certainly for
       the time being.  So we need to get directions in place,
       in our submission, leading up to, if your Lordship
       approves, the 2nd March.  Really I think the only point
       of difference, and it is a slight one, is that we think
       that using the September date rather than the July date
       may be to save up problems for ourselves.
   MR JUSTICE FRASER:  Mr Green.
   MR GREEN:  My Lord, the only thing, the parties' solicitors
       have agreed, subject to your Lordship's view, that it is
       sensible for the pleadings for the further issues trial
       to be done with the benefit of receipt of the Horizon
       Issues judgment for obvious reasons.
           There's also the question of whether the Court of
       Appeal grants permission on the obligations, breach of
       which and concealment of a breach of which --
   MR JUSTICE FRASER:  But that is from the Common Issues you
       are talking about?
   MR GREEN:  My Lord, yes.  Just highlighting what feeds into
       what will have to be pleaded.  For that reason the only
       actual step --
   MR JUSTICE FRASER:  I don't follow that point at all but it
       doesn't matter for the moment.  Go on.
   MR GREEN:  Rather than trying to get the parties to agree
       everything going forward between now and March now,
       we'll come back on the 23rd --
   MR JUSTICE FRASER:  I'm not going to ask you to agree
       anything now.  I'm not going to make any orders now
       other than varying any dates I have to order.
   MR GREEN:  I mean prior to the 23rd, my Lord.  The only
       actual substantial step, I think, prior to the pleadings
       being done is the giving of stage 4 disclosure by
       Post Office, which was to be done prior to the
       pleadings.  So if that can be completed in good time
       prior to --
   MR JUSTICE FRASER:  All right, I think --
   MR GREEN:  It just avoids us coming back on the 23rd.
   MR JUSTICE FRASER:  Mr Henderson has got a valid point which
       is, if you can't agree everything sensibly and you wait
       until 18th September, you have only given yourself six
       months.
   MR GREEN:  My Lord, the only problem on my learned friend's
       submission, with respect, is that there's giving stage
       four disclosure and then the pleadings start, which the
       parties have agreed in discussions between solicitors
       shouldn't happen until after the Horizon judgment.
   MR JUSTICE FRASER:  But Mr Green if it is as straightforward
       as that and you can agree all of those directions
       between the two sides in the next week or so, you do not
       even have to come on the 23rd July.
   MR GREEN:  I was just trying to short cut it, my Lord.  I'm
       in your Lordship's hands.
   MR JUSTICE FRASER:  I'm going to tell you what orders I'm
       going to make now and then each of you can tell me if
       I have missed anything else and then there's another
       point I have to address.
                              Order
           The pre-trial review on 17th October for the further
       issues trial has to be vacated.  The trial date on 4th
       November for the further issues trial has to be vacated.
       The further issues trial will be tried in the current
       time set aside starting on 2nd March with the same time
       estimate as it currently has.  The parties are to seek
       to agree directions for the further issues trial by noon
       on 21 July and failing agreement they are to attend for
       a CMC at 10.30 on 23rd July.
           I would like to hope that that is not going to be
       necessary.  It would be far cheaper for everyone if it
       were not needed.  Right.  So is that 2019 tidied up?
   MR HENDERSON:  I think the only outstanding matter is the
       18th September hearing.
   MR JUSTICE FRASER:  I'm leaving that in because until I know
       what's happening on 23rd July -- I assume one of the
       directions you might seek to agree between yourselves,
       if you can agree everything else, is that the 18/9 can
       come out but I am going to leave it in for the moment.
           Right.  The only other point which goes to or arises
       from judgment number 5 is, as the managing judge and as
       the parties have got cost management orders, I made
       certain observations about costs and also said it would
       have to be revisited at the end of the Horizon Issues
       trial.  Since then there has been one further
       notification on costs which was from the Post Office,
       who I think notified in a sum of 13.9 million it is now,
       which is about £1 million more than it was when I made
       the comments that I did in judgment no. 5.
           I'm not going to make any orders or anything like
       that but I would like the two of you, please, when
       discussing and considering your draft directions in
       advance of 23rd July to direct your minds to what, if
       any, further costs in case management conferences and/or
       costs management orders you might be considering and the
       point at which this year that can be addressed in the
       absence of agreement.  Because obviously if there is
       going to be a contested CCMC there are certain steps you
       have got to take in advance for 28 days, 14 days, etc.
           Right.  Is that everything?
   MR GREEN:  Yes.
   MR JUSTICE FRASER:  Is that everything?
   MR HENDERSON:  I believe so.  Two minor points.  We have
       agreed between counsel dates for the bug appendix point.
           I do not think that needs to be subject to an order
       but my learned friend has indicated he will serve his
       comments by 9th July, a week today, and we are going to
       aim to respond to that by 19th July.  But I do not think
       that needs to be in any order.
   MR JUSTICE FRASER:  No, but thank you for telling me, it
       means I know when I'm going to get it.
   MR HENDERSON:  Presumably on the order that your Lordship
       has just made it would be the usual common costs in case
       and liberty to apply?
   MR JUSTICE FRASER:  Yes.  Although they would be Horizon
       Issue costs anyway given it has only been 25 minutes,
       but by all means and could someone draw up the order
       please.  I hadn't seen Mr Warwick appear from behind the
       screen.
           Right.  Is that everything?
   MR GREEN:  My Lord, it is.
   MR JUSTICE FRASER:  Mr de Garr Robinson, does that seem to
       be everything?
   MR DE GARR ROBINSON:  It is.
   MR JUSTICE FRASER:  Mr Henderson, so far as the directions
       are concerned I think that's everything?
   MR HENDERSON:  My Lord, yes.
   MR JUSTICE FRASER:  Thank you all very much.
   (4.00 pm)
                      (The court adjourned)