Saturday 10 April 2021

Confidential mediation Post Office-style

I am currently writing a book about the Post Office Horizon scandal which necessarily entails digging through acres of documents, transcripts, testimony and other material I've amassed over the last decade. On top of that I've asked people for fresh interviews, approached some folk I've never spoken to before and asked others to supply me with their take on various elements of the story.

Mark Baker has been a Postmaster since well before Horizon came along. In the first decade of this century he was a significant member of the National Federation of Subpostmasters. In 2010, Mark left the NFSP and joined the Communications Workers Union, where he currently is Branch Secretary for Subpostmasters. He still runs his Post Office in Larkhill Garrison - the closest Post Office to Stonehenge. 

Mark has done a lot to raise awareness of the problems with Horizon. For more than a decade he has travelled the country on a voluntary basis, helping Subpostmasters facing demands for money from the Post Office. Mark was also instrumental in exposing the cosy/corrupt (delete as applicable) relationship between the Post Office and the NFSP, which led to him being described as "redoubtable" by a High Court judge. 

Mark kindly wrote a revealing piece on Horizon for this website a couple of years ago, and his personal contribution to last year's BEIS select committee inquiry is very revealing. He also sent me his experience of attending a Post Office mediation session in 2016 as a supporter and friend of a Subpostmaster. The mediation scheme had opened in 2013, but thanks to all sorts of extraordinary goings on it seemed to take forever to get anyone mediated. By the end of 2014, James Arbuthnot and his fellow backbench MPs had gone public on how badly the Post Office was behaving. 

This is Mark's take on mediation, for the record:

Post Office Mediation Scheme - how it really went down

The year was 2016. I had been representing a CWU Postmaster member (let's call her Sam) since her suspension back in 2013. It had taken that long to get her case into the mediation scheme.

It is important to remember that by the time we got to the mediation hearing in early 2016 Sam had been without income for 3 years.

Sam was suspended following an audit which found her cash account to be over £24,000 in deficit. I had attended a standard Post Office disciplinary hearing with Sam in 2013. The hearing was conducted, unusually, by Angela van den Bogerd, a senior Post Office director.

Ms van den Bogerd, it turns out, was heading up an internal investigation team at the time which went by the name of Project Sparrow (the Post Office have a penchant for giving their projects bird names).

Project Sparrow looked into individual Postmasters cash accounts and Fujitsu data to find evidence of errors.

Sam put up a robust defence of her innocence, and after some questioning and probing of the circumstances surrounding her branch, I suggested there was a high degree of probability that the branch was suffering from poor broadband service, as well as power and communications issues caused by a unreliable and fluctuating power supply to her village.

Sam asked her local electricity company to provide a detailed report of the power outages and power fluctuations at the substation serving her village. The report supported our position that the Horizon system in this branch (along with the rest of the village) suffered regular interference to the power supply. It came to pass that the substation was replaced. Low and behold, Sam's branch (by this time run under temporary management) did not have any more irregular balances.

During the disciplinary hearing Ms van den Bogerd relied heavily on the Horizon transaction recovery system. This was a system that would recover any un-transmitted transactions that had been interrupted by any disruption (such as power failure or comms failure) from the hard drive of the Horizon processor.

Ms van den Bogerd’s position was that the recovery system would rescue any transactions that had been disrupted. We disputed that assertion. The investigations carried out by Second Sight showed the recovery system options did not always appear to the user. 

I had done my own research into data packet loss caused by electrical or comms failure. I put it to Ms van den Bogerd that it was possible that transactions disrupted by such interference could have meant that the transactions were corrupted or has been misrouted. Again it was in the Second Sight report that the Post Office had a suspense account containing unreconciled transactions that had “lost their way”. 

I also raised concerns about the integrity of the hard drives installed in Horizon. They were very old and I believed that many of them had corrupt sectors on them which would mean that any transaction data assigned to the hard drive (awaiting system recovery) would be destroyed. 

The meeting with Ms van den Bogerd in 2013 did not reach any conclusion, but we did manage to get Sam's case recommended for mediation. I hoped a settlement could be reached that would allow Sam to move on. I believed that was what the mediation scheme was set up to do. 

Three years later we got a date. The scheme provided funding for Sam to have a legal advisor as well as a union rep. On the specified date, Sam, her legal advisor and I travelled to a designated hotel and met up with the scheme's independent mediator, provided by the mediation organisation CDER. 

We were introduced to the Post Office team, which was headed up by (surprise!) Angela van den Bogerd and some of her Project Sparrow team. Also present were representatives of the Post Office's lawyers, Bond Dickinson.

We got together in a room and the mediator explained how the day would unfold. Then our side was invited to set out our position. I started to explain the technical reasons why I believed our member was not liable for the shortfall and why we believed that the Horizon system was to blame. 

I hadn’t got very far into my presentation when one of the lawyers from Bond Dickinson stopped me and dismissed my arguments. He told me that was not why I was here. He said mediation was about reaching a settlement. He then asked the mediator to start the negotiating process.

I was a bit put out by this as I thought that each side would want to get to the bottom of how and why Sam's discrepancy could have occurred. But that was that.

We were invited to retire to another room. Thee mediator came in and handed out a pre-prepared Non Disclosure Agreement (NDA) and asked us to read and sign it. 

CWU officials as a matter of policy do not sign NDAs. Sam and her legal advisor signed theirs. I just put mine back into the pile. The mediator returned, gathered up the documents and left. Clearly the mediator did not check the paperwork, which is why I am able to relay what happened.

It was bizarre. The mediator spent the rest of the day going backwards and forwards between our room and the room the Post Office were in, bringing us offers from the Post Office to reduce the debt they maintained Sam owed.  

At all times the offers were conditional on Sam admitting liability to the original outstanding discrepancy of £24,000. If Sam admitted liability, she could get her Post Office back

With each visit from the mediator the alleged debt was reduced. In the end the figure reached quite a low level considering we started at £24,000. 

Sam remained resolute. She would not agree to making any admission of liability. I supported that position. So the Post Office broke off the negotiations and that was the end of the mediation.

I couldn’t believe what I had just sat through. There was no attempt by the Post Office to negotiate in good faith. The whole process was a sham designed to get an admission of guilt from the Postmaster in return for lowering the claim they perceived they were owed. There was no discussion about the Horizon system and the role it could have played in causing the discrepancy.  

I left the meeting feeling I had wasted my time. The Post Office were never serious about finding any solution.

So there you go. By the way, Bond Dickinson later became Womble Bond Dickinson. WBD fought the 2018/9 High Court litigation for the Post Office and lost badly. They tried to recuse the judge during the litigation. They failed to do so. In the process they earned millions. 

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