Sunday, July 28, 2019

The Long March to, er, March

UPDATE: I've had a chat with someone close the process since this piece was published last night. They tell me the quantum trial will not append value ranges to the heads of loss. The quantum trial will be purely about the "principles/tariff" that will need to be followed in each claim to arrive at a figure after any breach/causation trial.
Time passing, in a blur.
"Have a lovely summer." instructed the judge at the end of last week's case management conference (CMC). The parties had spent just over an hour trying to agree a road map for the next stage of the Bates and others v Post Office group litigation.

We have learned that the result of the second (Horizon trial) will be handed down between 1 September and 4 December 2019.

We know this because the judge has already indicated it will not appear before September, and in last week's CMC he told the parties they "will definitely have it by December."

The Court of Appeal's decision and the second trial judgment are going to have a huge bearing on the litigation, so much so that last week the parties successfully persuaded the judge trial three should no longer be about issues of breach and/or limitation, but solely concerned with quantum - ie how much the Post Office should pay the claimants and for what, if they lose.

This will mean lots of conversations about "heads of loss", which essentially means "categories of damages".

During the CMC the judge asked what sort of thing the claimants will be looking to recover money for. Patrick Green QC for the claimants gave a number of examples. He was speaking off the top of his head so they won't likely be called exactly the same thing when it comes to trial, but the (by no means exhaustive) list of examples were:

- repayment of shortfalls whilst still an Subpostmaster, wrongfully.
- damages for harassment.
- consequences of failure to investigate.
- breach of the implied duty of good faith on the relational contract footing.
- breach of other implied terms which have particular bite on what happens.
- damages for deceit.

Eat my assumed facts

The categories will be tried in March on the basis of "assumed facts" rather than "agreed facts" - the claimants will put forward what happened to them and invite the judge a) accept it as a category of loss they can claim for and b) put a value range on that loss.

The Post Office will argue against the value of their claim and dispute the facts of them.

At the end of the trial, however, nothing will be proved and there will be no finding on liability. That is for later trials. What we will end up with after trial three is a matrix of "heads of loss" which will presumably have minimum and maximum sums appended to them. These can then be awarded to individual claimants in amounts which will depend on:

a) whether the loss in question happened to them (eg sacking, prosecution, loss of investment etc)
b) the actual sums involved (eg refurbishing a Post Office retail space, future earnings) and/or
c) the scale of the tort, or wrong (eg loss of reputation, loss of health).

The Post Office are keen for this trial to go ahead so they can find out how much they might be in for if they continue fighting this litigation and lose.

During the trial - which I am now pretty sure will end up being known as the quantum trial - the Post Office will obviously argue for tiny sums to be awarded (if liability is admitted or found), presumably based on existing case law. The claimants will want the big bucks.

Four claimants will serve written statements for the quantam trial. They are Alan Bates, Liz Stockdale, Naushad Abdulla and Pam Stubbs.

The trial is only expected to last three weeks. The key dates until then are:

·         23 October 2019 – Costs and Case Management Conference
·         25 October 2019 – Lead Claimants to file Individual Particulars of Claim
·         7 November 2019 – Case Management Conference (if required)
·         25 November 2019 – Defendant to file Individual Defences
·         4 December 2019 – Case Management Conference
·         9 December 2019 – Lead Claimants to file Individual Replies
·         23 January 2020 – Pre Trial Review
·         2 March 2020 – Further Issues Trial begins.

What happened to limitation?

At the CMC both parties agreed that preparing to go to trial on the issue of some claimants being time-limited can only successfully be done armed with Horizon trial judgment and the decision from the Court of Appeal as to whether or not to allow the appeal.

The claimants say they are not able to select the lead claimants for that trial without this information, but didn't say why. Even the judge said: "I can't see how that will affect the selection criteria but you will possibly know more than I do."

I would have thought time-limitation is one of the more straightforward issues in play, but I guess if the judge finds that the Post Office kept information relating to problems with Horizon from the claimants, information which, if they had, they could have sued sooner - it makes the issue of limitation easier to argue.

As things stand, the limitation trial will be trial four, scheduled tentatively for June 2020.

The breach is put back

There is currently some vagueness about breach - determining whether or not the Post Office was guilty of acting unlawfully in its actions wrt to its "relational" contract with its claimants.

There are several options - it gets bundled into the limitation trial in June, or it becomes trial five, to take place in autumn 2020, or possibly March 2021.

Breach is the biggie, and it could conceivably be both, trials five and six, or (as David Cavender, QC for the Post Office, floated in December) a 12 week "omnibus" trial, taking in as many claimants' situations as possible.

Doing the breach trial last makes sense - we'll know what the contract means, what role Horizon played in all this, what the categories the claimants can claim damages in and whether or not they're time-barred.

Given the pace at which this litigation is progressing I reckon we'll be looking at a March 2021 trial with the first actual damages being awarded in June/July 2021. By which stage the costs for each party will probably be at the £50m mark.

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