Friday 23 August 2019

All the Judgments

A page dedicated to bringing you all the judgments made by Mr Justice Fraser in the Bates and others v Post Office group litigation and those from the Court of Appeal made by Lord Justice Coulson in chronological order.

A pretty thorough bollocking issued to both parties.

Write up (with link to judgment)

The Post Office attempts to selectively tailor the evidence the court is to consider by asking the judge to strike out witness statements it doesn't like. Judge refuses.

Write up (with link to judgment)

180,000 word judgment handed down on 15 March 2019 in the light of the first (Common Issues) trial. Massive win for claimants. Post Office spanked.

Write up: "He did it" (with link to judgment)
Actual judgment.
Judgment cheat sheet. (with link to judgment)

Oh the drama. Judge gives reasons as to why he is rejecting the Post Office's recusal application.

Write up (with link to judgment)
Actual judgment.

Permission refused: Recusal judgment appeal application fails

In which the Court of Appeal refuses the application to appeal the recusal judgment. 

Write-up: "Fraser J is going nowhere"
Actual order

Reasons for refusing the Post Office's attempt to appeal Judgment No 3

Sir Peter Fraser patiently explains why he will not be allowing the above.

Write up (with link to reasons): "There will be at least three more trials"
Actual reasons.

Court of Appeal: Common Issues appeal application pt 1 (fail)

The Court of Appeal rejects the initial application to appeal the Common Issues judgment. 

Write-up - "Court of Appeal invites Post Office lawyers to have another go"

In which the judge reveals both parties have managed to spend more than £25m between them on this litigation so far.

No write up.
Actual judgment.

Court of Appeal: Common Issues appeal application pt 2 (fail)

The Post Office's second application to appeal the Common Issues judgment at the Court of Appeal fails as Lord Justice Coulson notes the Post Office seems to want to treat its Subpostmasters like a "mid-Victorian factory owner."

Write-up (with link to judgment): "Subpostmasters' stunning victory confirmed by Court of Appeal"
Actual judgement.

The settlement agreement

Five days before the Horizon judgment was handed down, the parties settled. The Post Office apologised and handed over £57.75m to the claimants.

Write up: "It's all over"
Settlement agreement joint statement

Judgment No 6: Horizon Issues

The second trial judgment. Another monster. This time weighing in at 178,000 words. The main body is therefore slightly smaller than judgment number three, but it came with a 60,000 word technical appendix making it by some distance, the biggest judgment in this litigation. As above, massive win for the claimants, Post Office spanked.

Write up: "They did it."
Actual judgment.

And that's your lot.

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Judgment No 1: Laying down the Law

I hadn't read the first judgment in Bates and others v Post Office' judgment until recently. I thought it was about disclosure. It's not. It's a boll*cking.

By the time it appeared on 10 November 2017 both parties had managed to annoy the litigation's managing judge Sir Peter Fraser to a considerable degree. In the judgment he lists exactly how:

- "failing to respond to proposed directions for two months";
- "failing even to consider e-disclosure questionnaires";
- "failing to lodge required documents with the court";
- "failing to lodge documents in good time";
- "refusing to disclose obviously relevant documents";
- "resisting any extension to the "cut-off" date for entries of new claimants on the Group Register";
- "threatening pointless interlocutory skirmishes".

The formal order which created the Bates and others v Post Office group litigation (GLO) was made on 22 March 2017.  The rules of the GLO stated that the first case management conference (CMC)  had to be held on the first available date after 18 October 2017. Sir Peter Fraser was appointed managing judge and on 25 April ordered that the first CMC would take place on 19 October.

Unfortunately, that date didn't work for the claimants' lawyers. Inadvisedly, they told the judge they'd get back to him when they'd agreed a date which suited both parties. Bad move. As Sir Peter says:
"This... appeared to be a clear case of the tail wagging the dog. It is notable that judicial availability, and the dates ordered both in the GLO and in Directions Order No.1, were considered such a secondary consideration to counsels' diaries."
The judge told the parties a witness statement would be required before he would consider shifting the date of the first CMC. Astoundingly: "this particular direction was then wholly ignored."

Another bad move. Sir Peter ordered the first CMC would take place on 19 October 2017.

Somehow the Post Office failed to take note of how thin Fraser J's patience was wearing. Shortly before 19 October came round the Post Office's lawyers suggested there didn't need to be any trial in the litigation until 2019 at the earliest. His Lordship was not amused:
"To describe this approach as leisurely, dilatory and unacceptable in the modern judicial system would be a considerable understatement."
The Post Office came into line and the first trial was fixed for November 2018. The day after this was agreed, the Post Office's leading counsel (Anthony de Garr Robinson QC) told the court he was not available, and could the first trial be punted into 2019 anyway?

Interestingly, this was not opposed by the claimants. However, Sir Peter "declined" this application for a further delay, and said he would hand down his written reasons. Hence judgment no 1 in this litigation - both a boll*cking and a reminder to our well-remunerated learned friends that time, for the claimants and the defendant, is very much an issue.
"Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach... On the face of it, a delay in the first round of substantive hearings from November 2018 into early 2019 could be viewed as modest. However, in this case it would mean that the first substantive hearing would commence almost two years after the making of the GLO. That is simply far too long in my judgment. The delay until November 2018 is more than enough as it is... All of the many claimants, and the defendant, need resolution of the matters in issue."
The judge concludes by stating:

"A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders."

The parties were on notice.

Click here for the full judgment - it's only 21 paragraphs long and definitely worth a look.

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