What Bates v Post Office did next: Court of Appeal

The Royal Courts of Justice, home of the Court of Appeal

This is a proper court building. I turned up early with the specific intention of staking out a place in Court 63 near a plug point in order to make sure I could bang out some tweets, when I just happened to bump into a Senior Litigation Lawyer I know. He too was heading to Court 63.

We exchanged pleasantries and got through the x-ray machine without too much difficulty, but because we were chatting, and because I was subconsciously thinking, "this chap is on home territory", I let him take the lead.

Several minutes later, after encountering interminable flights of stairs, walking along basement corridors into dead ends and having navigate the RCJ's famous Bear Garden (disappointing lack of bears or garden) twice, we eventually worked out that we needed to be in the West End of the East Wing, not wherever we were. So we began walking (at some pace now, given we didn't want to arrive after the judge) back out through a courtyard, up some more steps into another entirely wrong part of the building before we gave up and started again.

"I thought you would know where to go!" I said to the Senior Litigation Lawyer as we semi-ran towards the court.
"I live in Leeds!" he replied.

We eventually found the right place - one of the pokey "modern" courtrooms at the back end of the estate. I staked out a good position on the press bench, found a power source (yay!) and was settled with my laptop set to speed-tweet mode before the judge arrived.

Meet the team

The legal team representing the Post Office at this appeal hearing are a new bunch. Helen Davies QC from Brick Court Chambers led the barristers, and the solicitors are Herbert Smith Freehills. Behind the HSF team were the Post Office's WBD team of solicitors including Andy Parsons. Alan Bates for the JFSA was present, as was Angela van den Bogerd, a Post Office director.

Everyone was robed, with wigs (the Bates v Post Office litigation at the Rolls Building is conducted in suits), and the court was packed. And getting stuffier and stuffier. Some barristers, who have to expend quite a bit of brain power during a hearing, looked worried. The heroic QC for the respondent Subpostmasters, Patrick Green, took an executive decision to open a window close to where I was sitting. Everyone relaxed.

Lord Justice Coulson entered and announced he wasn't going to talk much ("which is a good thing") as he had a sore throat.

So what happened? Well... the Post Office are not seeking to persuade Coulson LJ that their application to appeal significant chunks of the first trial judgment is correct, just that it has reasonable grounds of success. It's a low-ish bar. Lord Coulson can cherry pick what he will or won't allow, accept all grounds or chuck it out.

Today's oral hearing follows a skeleton argument and Grounds of Appeal submitted by the Post Office back in September, to which the Subpostmasters replied with a Statement of Objection. Thanks to both parties' commitment to open justice, you can read them all here.

The Post Office's latest QC is very good, as they all are, but within seconds (and despite saying he wasn’t going to talk much), the judge interrupted Ms Davies' introduction to tell her: "You can take it that I have read this stuff, some of it twice, some of it three times." She moved on.

The Post Office's case is that the judge has erred in his interpretation of case law in a number of areas, particularly with regard to good faith elements of relational contracts, the termination clauses within the Subpostmaster contracts, the areas of the Subpostmaster contract which are too onerous or unusual to be lawful, whether the Subpostmaster contract is governed by the Unfair Contract Terms Act (UCTA) and the obligations on a Subpostmaster as an agent of the Post Office.

These are all crucial areas to the Post Office, because if they are found in breach of contract as interpreted by Judge Fraser in a future "breach" trial, they will be liable for gazillions.

When it comes to termination Ms Davies spelt it out. She told Lord Justice Coulson that the Post Office has received particulars relating to the Heads of Loss/Quantum/Further Issues trial which is due to take place in March. She said that Lead Claimant Naushad Abdulla is claiming that if he had not been summarily terminated by the Post Office he would expect to be in post until 2043, and wished to claim against them for loss of future earnings. Ms Davies made no comment as to whether this was likely, but her point stood. If Fraser J's interpretation of the termination clause in the Subpostmaster contract was correct, then the way in which the Post Office terminated Mr Abdulla's contract would likely be found in breach, costing it lots and lots of money. Multiplied by a large chunk of the claimants in a similar situation. Hence the hundreds of millions of pounds being bandied around.

Although Coulson LJ didn't say so, that's not his problem.

The judge, throughout Ms Davies' evidence, sought to restrict her submissions to the specific Grounds of Appeal she was meant to be talking about, and I got the sense this was for two reasons.

Anything not limited to the Grounds of Appeal was off limits, as those were the grounds on which the appeal application was admitted. Also, much as the Post Office might want one, any appeal is not going to be a retrial, and by accepting wider submissions as part of the application, there was a danger Coulson could end up being asked to make a decision on the Common Issues trial he would be less qualified to make than Sir Peter Fraser.

At one point he even told Ms Davies, that "no one" would ever know more about the Subpostmaster contract than Fraser J - the point being that whilst the decisions of the Court of Appeal supersede the High Court and the judges at the Court of Appeal are more senior than High Court judges, the sheer amount of work that Fraser had put into studying the Subpostmaster contract could not be lightly dismissed or repeated.

Everything's Gone Green

It was this element which Patrick Green, QC for the Subpostmasters, latched onto with his opening remarks. Speaking after Ms Davies had been on her feet for two hours, he told Lord Coulson "not only does the judge [ie Fraser] deserve credit for the work put into the judgment, but he also deserves credit for getting it right."

What followed was a slow demolition of Ms Davies arguments, using specific examples from the first trial which sought to explain to Lord Coulson that Fraser J was looking at everything in the round to inform his decisions. Not just case law, but witness evidence, arguments presented by the legal team and his own knowledge and experience.

Mr Green raised the issue of the contractual obligations of the Subpostmaster, pointing out the judge was given six lever arch files of double-sided printing which was the sum total of the rules and contracts the Subpostmaster signs up to on taking over a Post Office. Mr Green said that in court none of the Post Office witnesses could answer any of his questions as to what was in these documents and how they were implemented. He raised the example of the Book of Rules, which according to the paperwork, the Subpostmaster is bound by. The Book of Rules ceased to be used by the Post Office some 20 years previously and when the claimants lawyers had asked for it, no one at the Post Office could find one. Mr Green used this as an example of the real contractual environment the Subpostmasters were working in on a day to day basis.

"The judge" said Mr Green, "heard gallons of evidence about the run-up to the making of these contracts.  He also heard evidence from which he could understand the contractual context, how things actually worked in practice, and there was also some evidence that you could characterise as post-contractual: what happened? "

This continued in a similar vein until 3.30pm, when Ms Davies was able to reply to Mr Green. At one point she mentioned that Fraser looked at lots of issues outside the straight up Common Issues which were being decided in the first trial.

Lord Coulson interrupted her pointing out this complaint was raised in the Post Office's recusal application.

"Sorry, my Lord, forgive me...?" asked Ms Davies, who was not present during the recusal application.

"It was a point that was taken that the judge should not have dealt with those points." explained Lord Coulson. "He should not have descended into the detail in relation to the terms because that was for the breach trial."

"Clearly" muttered Lord Coulson, "that was piffle."

Whilst much of Ms Davies' reply to Mr Green's objections were very technical, she did score a couple of hits. In some ways it would be extraordinary if Fraser J hadn't made some mistakes in his epic 180,000 word first trial judgment. Whether or not they are egregious enough to allow any appeal is for Lord Coulson to decide.

Im-mediate

And he is going to decide soon. The mediation I first mentioned back in October is definitely going to happen. Both parties are going to sit down in a room to go through a confidential discussion process on the 27th and 28th of November.

What is said in that room will probably never be repeated by either party. If initial talks are successful, I expect the mediation will continue next year alongside preparations for the March 2020 trial.

I was told that there are no pre-mediation discussions about anything other than logistics. It's a blank sheet of paper and a chance for each side to speak candidly to each other outside legal protocols.

From what we have heard from the claimants, the Post Office is going to have to sit down with millions of pounds in front of it on the table. It will also presumably have be open to solutions which deal with the criminalised cohort of Subpostmasters AND demands for some kind of public apology.

If all three of the above are not part of any deal, the claimants will likely reverse out of the room and head straight back to Court 26 of the Rolls Building, and this litigation will continue.

Lord Coulson asked if it would be helpful if the parties got his decision on the appeal application before the mediation started, suggesting "it may have some materiality to the mediation."

Ms Davies wryly agreed, saying that "can't be ruled out."

So Coulson LJ told the court unless they heard otherwise he would deliver his decision on the Post Office's application to appeal on or before 22 November, giving the parties sight of it before they get down to mediation.

I suspect Fraser J will also be looking to hand down the Horizon trial judgment before mediation begins.

Neither judge is bound to do this as mediation is an entirely separate process to the courts, but given both the appeal application decision and the Horizon trial judgment will have a massive bearing on the chances of either party succeeding in this litigation, knowing what they contain will necessarily inform their approach.

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

Choose an amount

- £2.50 GBP -- £5.00 GBP --- £20.00 GBP ---- £30.00 GBP ------ £40.00 GBP ------- £50.00 GBP -------- £75.00 GBP --------- £100.00 GBP ---------- £250.00 GBP ----------- £1,000.00 GBP

Subpostmasters' stunning victory confirmed by Court of Appeal

Today Lord Justice Coulson closed the door on the Post Office's last attempt to wriggle out of its contractual responsibilities to its Subpostmasters describing its attitude as not that far removed from "a mid-Victorian factory-owner." Lord Coulson delivered a withering rejection of all 26 of the Post Office's purported Grounds of Appeal of the Common Issues trial judgment, complaining as he went:

"The Post Office ascribed various findings or conclusions to the judge which, on analysis, form no part of his judgment. As the judge himself noted when refusing permission to appeal even when concerned with findings that he did make, the Post Office takes such findings “either wholly out of context, mis-stated, or otherwise not correctly summarised.”"

Sir Peter Fraser's 15 March judgment against the Post Office was a landmark in this case, but whilst it was open to appeal, there was doubt the Post Office would have to be bound by it.

In just under 10,000 words Lord Coulson puts that doubt to bed. He dismisses every argument the Post Office puts forward, concluding:

"the trial and the subsequent judgment were manifestly ‘the first and last night of the show’. No judge will ever know more about this case generally, and the Common Issues specifically, than Fraser J."

The implications of this decision for the Post Office are costly. It is going to have to spend a lot of money changing its business practices, and more importantly, its culture.

Shortly after Lord Coulson's decision dropped, a serving Subpostmaster emailed me with an impressive piece of invective against the Post Office, railing that: "the sheer scale of their audacious disregard for their trading partners, the law and common decency means they must be held to account.”

The testimony from Subpostmasters down the years and the evidence uncovered during this litigation shows that behind the brand, truly shocking abuses were going on. Many of them came out in evidence and cross-examination during the first trial. Until Sir Peter's judgment came through, the Post Office refused to accept that, over an 18 year period, it had done anything wrong.

Today Lord Coulson said:

"The Post Office describes itself as ‘the nation’s most trusted brand’. Yet this application is founded on the premise that the nation’s most trusted brand was not obliged to treat their Subpostmasters with good faith and instead entitled to treat them in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory-owner."

The Post Office replied:

"We remain focused on the work we are doing to improve the ways in which we work with postmasters, which is of the utmost importance.  We have taken determined action at every level of the business to provide better support to the people operating the UK’s 11,500 Post Office branches."

It doesn't have much choice.  Despite engaging in what the Bates v Post Office managing judge Sir Peter Fraser called "extremely aggressive" and "attritional" litigation tactics - trying to get Sir Peter sacked, taking forever to disclose anything, ramping up costs and trying to mislead in court - the Post Office has so far lost everything in this litigation hands down.

Will there be mass disciplining of those responsible for its failures over 20 years? Will there be an internal inquiry? Will some new hands-across-the-water body be set up to try to work out how the hell it is going to maintain a functioning relationship with its Subpostmasters in the future?

Alan Bates, founder of the Justice for Subpostmaster's Alliance, and lead litigant in this case, said today the Post Office has "wasted good public money in defending the indefensible and it is about time that someone at a very senior level steps in to control this storm that Post Office finds itself in.”

No wonder the Post Office is desperate to settle. The claimants are now barreling towards a series of trials which will start to spell out exactly how much the Post Office is in for if it is found to be in breach of 550+ contracts.

Ron Warmington, whose company uncovered serious failings with the Post Office's practices way back in 2013, reacted to Lord Coulson's decision by saying:

"This is profound. The Post Office's entire business model will now have to be re-generated. Indeed, that’s what we, at Second Sight, told them more than six years ago!  They should have offered serious compensation all those years ago. Now it looks set to cost far more than the Post Office's net worth."

To any casual observer it has been patently obvious that the Post Office's practices in ruining and prosecuting so many Subpostmasters on the flimsiest evidence looked shaky. But it kept doing it despite a growing furore that went public 10 years ago and culminated in a BBC Panorama investigation in 2015. The Post Office kept threatening media outlets if they reported the story, and it tried to make sure that what one journalist called "one of the most widespread miscarriages of justice in the UK this century" stayed out of the news. Bearing in mind how little media attention there has been on this story - it worked.

James (now Lord) Arbuthnot, was the backbench MP for North East Hampshire who campaigned hard to get this story wider attention and who put pressure on the Post Office to deal properly with the evidence they seemed to be ignoring or failing to deal with. Today he said:

"If the Post Office nursed any delusion that its behaviour had been acceptable, ethical or even legal, that ought now to be shattered.  Their treatment of the Subpostmasters has been disgraceful from the beginning, but they have justified it to themselves by telling themselves they are protecting public money.  It is now clear that they have been doing quite the opposite. They are running up vast legal bills defending the utterly indefensible.  They must now stop doing that and must start negotiating in good faith - if they have it in them."

Let's see who's listening. Of course, this litigation could well have a sting in its tail - the judgment for the Horizon trial, in which Sir Peter Fraser conducted a deep dive into the guts of that infamous computer system, has been promised before 4 Dec. Sir Peter might decide Horizon is "robust", which you can bet the Post Office will seize on, as it has every right to do.

There are also the first two mediation dates coming up next week. Who knows what the Post Office will be prepared to do to settle the case? Who knows what the claimants will accept?

There are plenty more twists to come, but today the claimants took one more very big stride towards victory, and they have every right to be jubilant.

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

Choose an amount

- £2.50 GBP -- £5.00 GBP --- £20.00 GBP ---- £30.00 GBP ------ £40.00 GBP ------- £50.00 GBP -------- £75.00 GBP --------- £100.00 GBP ---------- £250.00 GBP ----------- £1,000.00 GBP

EXCLUSIVE: Court of Appeal invites Post Office lawyers to have another go

The Post Office's application to appeal the judgment of the Common Issues (first) trial in this litigation has been thrown back at them by the Court of Appeal on grounds of excessive length.

"There is no possible justification for a skeleton argument that is five times the permitted length." fulminates Lord Justice Coulson. "Permission to Post Office to file a skeleton argument of 117 pages is REFUSED."

In his comments, Lord Coulson accepts a skeleton argument longer than normal may be acceptable because Sir Peter Fraser's initial High Court judgment was a whopper (180,000 words, kids - read the bluffer's guide here), "but," declares the judge, "that could not on any view justify going beyond fifty pages."

Accordingly, the Post Office has until 4pm this Friday to lodge a skeleton argument which is fifty pages long. If this does not happen, writes Coulson LJ - drawing himself up to his most thunderous height: "the application for permission to appeal will be refused."

As such, I expect there will be some litigation lawyers burning a decent hole in the Post Office's cash mountain over the next few nights to get that skeleton in. If they don't, the first trial judgment stands.

It would be weird if March's historic judgment did fail to reach the Court of Appeal on the basis of an administrative oversight, but I'm sure stranger things have happened.

Assuming the Post Office's considered fifty page skeleton is lodged before the end of this week, the JFSA have until 4pm on Friday 12 July to make their submissions, which his Lordship has demanded be no more than ten pages in length.

Rowing back from all this scheduling drama, I had this week been hoping to find out what the Post Office's grounds of appeal actually are, but I guess I'll have to wait a while longer.

There will be no summer expedition

In the same document (dated 18 June 2019, but stamped 18 July 2019) as the rejection of the Post Office's first skeleton, we discover the Post Office's request that its application be expedited (ie decided sooner rather than later) has also been refused. Coulson LJ says there is "no basis" for this argument in the skeleton and the application for expedition itself is based on a "false premise."

The Post Office had obviously hoped to get a decision on their application well before the arrival of the Horizon trial judgment (to what advantage for them I have no idea), but Lord Coulson is having none of it, ruling:

"It is a safe assumption that [the Horizon trial] judgment will not be handed down until September/October at the earliest. The answer to the application for Permission to Appeal the Common Issues can (and will) be provided before or at the same time."

This in itself is interesting, as it gives us a slightly firmer timescale going forward:

We now know that after Tuesday 2 July's conclusion to the Horizon trial, nothing will happen before the autumn. Then, in pretty short order, we will find out whether parts or all of the first trial judgment will go to appeal, get the Horizon (second) trial judgment and witness the start of the third (breach) trial.

Normally this sort of activity would almost guarantee Bates and others v Post Office would be one of the biggest stories around. However, 31 Oct is a significant date this year, and not just because you might be hosting a Hallowe'en party.

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

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

Choose an amount

- £2.50 GBP -- £5.00 GBP --- £20.00 GBP ---- £30.00 GBP ------ £40.00 GBP ------- £50.00 GBP -------- £75.00 GBP --------- £100.00 GBP ---------- £250.00 GBP ----------- £1,000.00 GBP

Fraser J is going nowhere

The Hon. Sir Peter Fraser. Winning.

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

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

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

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

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

In summary:

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

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

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

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

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

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

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

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

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

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

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

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

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

The Common Issues judgment's alleged mission creep:

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

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

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

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

In conclusion:

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

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

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

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

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

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

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

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

Choose an amount

- £2.50 GBP -- £5.00 GBP --- £20.00 GBP ---- £30.00 GBP ------ £40.00 GBP ------- £50.00 GBP -------- £75.00 GBP --------- £100.00 GBP ---------- £250.00 GBP ----------- £1,000.00 GBP

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.

Judgment No 1: Laying down the Law

A pretty thorough bollocking issued to both parties.

Write up (with link to judgment)

Actual judgment.

Judgment No 2: "It appears to me that extremely aggressive litigation tactics are being used in these proceedings."

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)

Actual judgment.

Judgment No 3: the Big Kahuna

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)

Judgment No 4: Why I Will Not Be Recused

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"

Judgment No 5: Common Issues trial costs awarded

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.

******************

The collecting, collating and posting of the above documents has only been possible by the crowdfunders who have kindly supported this blog.

If you would like to put a small amount of money in the crowdfunding tip jar, please click here. You will be taken to another page on this blog which has more information and a payment portal (operated by PayPal) which will ask for your card details.

Contributors who donate £20 or more will be added to the secret email list, which continues to update subscribers with all the developments of this extraordinary story as it continues.

Is Paula Vennells a Fit and Proper Person?

Dr Minh Alexander

Earlier this year, the blogger and NHS whistleblower Minh Alexander got in touch. She had stumbled across an item I wrote called "The ballad of Paula Vennells", and was interested in finding out more. Paula Vennells was at the time the CEO of the Post Office and had recently announced she was going to be taking up a position as chair of Imperial College Healthcare NHS trust.

As Dr Alexander found out more about the way the Post Office had treated its Subpostmasters, she became increasingly concerned about Fit and Proper Person issues.

As Dr Alexander puts it:

"NHS trusts are under a legal obligation to recruit and to do ongoing checks to ensure that their directors are Fit and Proper Persons. In a safety critical sector, it is vital that directors can be trusted to act accountably, to fulfil an organisational legal Duty of Candour and to prioritise patients’ wellbeing and safety above any considerations of reputation management. 

The Post Office’s behaviour under Paula Vennells’ leadership was not accountable nor open about its computer problems, and the Post Office instead caused serious suffering to scapegoated subpostmasters, some of whom had been prosecuted and jailed. 

It would be very unsafe for such a corporate culture to be replicated in the NHS, where vulnerable patients would take the brunt of any cover ups. I have therefore asked the relevant health regulator, the Care Quality Commission (CQC) to exercise its powers under CQC Regulation 5 Fit and Proper Persons (FPPR), and to review Imperial College Healthcare NHS Trust’s Fit and Proper Person arrangements."

The letter to the CQC requesting the review is a long one, but it's worth reading. Dr Alexander has given me permission to reproduce it in full. Here goes: 

Nigel Acheson

Deputy Chief Inspector of Hospitals

Care Quality Commission

24 December 2019 

Dear Mr Acheson, 

FPPR referral on Paula Vennells, former CEO of Post Office Ltd and current Chair of Imperial College Healthcare NHS Trust

I would be grateful if the CQC could look into whether Paula Vennells is a fit and proper person to be a director on an NHS trust board, under CQC Regulation 5 Fit and Proper Persons (FPPR). 

This is in relation to the widely publicised failings by the Post Office Ltd, where she was a senior manager from 2007 and the CEO between 2012 and 2019, before taking up her current post as Chair of Imperial College Healthcare NHS Trust. 

Paula Vennells presided as CEO over a period in which Post Office Ltd: 

-       Resisted criticisms of its Horizon computer system, which has since been demonstrated to cause errors in accounting;

-       Repeatedly publicly denied faults in its computer system, when it was actually aware of such faults;

-       Resisted concerns that it had treated subpostmasters unfairly and had wrongfully prosecuted some of these individuals over accounting anomalies that were caused by its own computer faults;

-       Continued to pursue and prosecute more subpostmasters over anomalous accounts that were likely related to the computer problems;

-       Aggressively resisted legal claims by subpostmasters in relation to their mistreatment by the Post Office; 

A High Court judgment by Judge Fraser of 16 December 2019, in a group action by subpostmasters against Post Office Ltd, concluded: 

“968 It was possible for bugs, errors or defects of the nature alleged by the claimants to have the potential both (a) to cause apparent or alleged discrepancies or shortfalls relating to Subpostmasters’ branch accounts or transactions, and also (b) to undermine the reliability of Horizon accurately to process and to record transactions as alleged by the claimants.” 

“969 Further, all the evidence in the Horizon Issues trial shows not only was there the potential for this to occur, but it actually has happened, and on numerous occasions. This applies both to Legacy Horizon and also Horizon Online. It has happened under both the HNG-X and HNG-A iterations of the Online system, but far less frequently under the latter than the former. Indeed, there are only isolated instances of it happening in respect of HNG-A, which the experts agree is a better system than either of the other two iterations of Horizon.”

“970 I accept the claimants’ submissions that, in terms of likelihood, there was a significant and material risk on occasion of branch accounts being affected in the way alleged by the claimants by bugs, errors and defects.”

Judge Fraser also found that both Fujitsu, the company responsible for the Horizons computer system, and to a lesser extent Post Office Ltd, had remote access to branch records and could “insert, inject, edit or delete transaction data or data in branch accounts”. 

On 11 December 2019 the Post Office Ltd and subpostmaster claimants in the group legal action against Post Office Ltd issued a joint statement, after coming to  a settlement.

In this joint statement, Post Office Ltd accepted that it had got things wrong: 

“We accept that, in the past, we got things wrong in our dealings with a number of postmasters and we look forward to moving ahead now, with our new CEO currently leading a major overhaul of our engagement and relationship with postmasters”

Lord Arbuthnot who has supported the subpostmasters, has called for a public inquiry into the very serious failings by Post Office Ltd, and noted that the subpostmasters had been fully vindicated:

“The subpostmasters have been vindicated in every respect.  It is an excellent Christmas present, but won at great cost.  The cost falls partly on the taxpayer but also heavily on the subpostmasters themselves, who will have their damages reduced by the amount the litigation funders will (justifiably) deduct.”

https://www.postofficetrial.com/2019/12/lord-arbuthnot-demands-judge-led.html 

Post Office Ltd has been very heavily criticised for its prolonged attempts over several years to cover up its failings and its abuse of power, to the extent of scapegoating and punishing subpostmasters when it knew that there were faults in its computer system. 

Judge Fraser the High Court judge who oversaw the most recent litigation against Post Office Ltd has criticised Post Office Ltd’s behaviour and extreme denial in the most serious terms: 

“928 The approach by the Post Office to the evidence of someone such as Mr Latif demonstrates a simple institutional obstinacy or refusal to consider any possible alternatives to their view of Horizon, which was maintained regardless of the weight of factual evidence to the contrary. That approach by the Post Office was continued, even though now there is also considerable expert evidence to the contrary as well (and much of it agreed expert evidence on the existence of numerous bugs). 

“929 This approach by the Post Office has amounted, in reality, to bare assertions and denials that ignore what has actually occurred, at least so far as the witnesses called before me in the Horizon Issues trial are concerned. It amounts to the 21st century equivalent of maintaining that the earth is flat.

“930 When real world examples such as Mr Latif’s are put together with the expert evidence that I have accepted – or even with Dr Worden’s lower figure for accepted bugs of 11 different ones – it can be seen that this institutional obstinacy by the Post Office amounts to little more than repeated assertions that the Horizon system (both Legacy and Online) cannot be to blame for the claimants’ experiences, coupled with (for some) challenges to the claimants’ witnesses because the Post Office simply cannot accept their factual accounts.”

 The extreme organisational denial was juxtaposed with abundant evidence of incidents caused by bugs in the Horizon computer system. Judge Fraser noted that one of the known software bugs in the Horizon computer system, the so-called “Dalmellington Bug” was known to have caused numerous incidents dating back to 2010:

Judge Fraser noted an important comment by a Fujitsu employee which threw light on the fact that Horizon software bugs had been recognised for many years: 

“925 One notable example is the expression used by Anne Chambers – “this bug has been around for years” – in February 2006.” 

Judge Fraser noted that contemporaneous documents recorded that Post Office Ltd staff had seen the computer faults and had ruled out user error: 

“940. I have already explained that the subject matter of the Simetra case is very different to this one, and I emphasise here that my analysis of the contemporaneous documents is in respect of the Horizon Issues in the context of this case, not the Simetra case which concerned very different allegations. Here, the categories of documents that are most illuminating in terms of specific incidents with Horizon over the years are the very numerous PEAKs and KELs. These emanate from, and are created within, Fujitsu. They are, in my judgment, a very good means of getting at the truth in this case. They show what was going on and the type of unexplained problems that numerous SPMs were experiencing in practice over the years, as they were reported to the SSC. They contain statements made when Fujitsu personnel’s “guard is down and their true thoughts are plain to see”. Some of them also record that Romec engineers, or the Post Office’s own auditors, have seen what has occurred and ruled out user error. Notwithstanding this, Fujitsu attribute user error to what has occurred.” 

The judge noted that internal 2009 Post Office Ltd documents showed that the company was aware of faults in its Horizon computer system: 

“942….”However, we need to continue to manage firmly any over-expectations of the frontline that Horizon Online will deliver improved functionality – they may see this as a missed opportunity so will not cure all the issues and problems that users have with Horizon although where practical, and at no extra cost, we have smoothed away a number of “rough edges”. 

Judge Fraser found that a 2011 Post Office Ltd document about correcting a system fault in the handling of Camelot lottery transactions showed that user error by subpostmasters was not at issue: 

“945. This has nothing to do with correcting excessive carelessness or fault on the part of SPMs. It is, in my judgment, about remedying a deficiency in the functionality of Horizon. That document also made it clear, because there are express entries to this effect, that outages might mean that the system would not deal with the matters sufficiently or accurately.” 

The judge found that Post Office Ltd was negligent in its response to accounting anomalies and to the concerns raised by subpostmasters:

“217. In my judgment, the stance taken by the Post Office at the time in 2013 demonstrates the most dreadful complacency, and total lack of interest in investigating these serious issues, bordering on fearfulness of what might be found if they were properly investigated. This SPM, whose branch was known to the Post Office, should obviously have been asked for further details (if further details were required for an investigation), and the Post Office and/or Fujitsu should plainly have investigated the matter as a matter of some importance. By 2013 Horizon was an extraordinarily controversial subject; there can simply be no sensible excuse for the Post Office’s failure to try and understand this particular subject. This is particularly reprehensible given that an internal Post Office document in August 2013 showed that Mr Winn’s involvement in this was because his area of responsibility was as follows: “also responsible for resolving specific branch accounting issues.” It was his specific job to resolve specific branch accounting issues, yet he decided at the time that “we have enough on”.  

 Judge Fraser noted that instead of handling the concerns about the Horizon computer system properly, Post Office Ltd blamed subpostmasters for carelessness or dishonesty: 

“517. The Post Office has, however, maintained publicly that it was seeking to be “transparent” about Horizon, and prior to the litigation it made certain public statements in relation to the increasing disquiet on the part both of SPMs, and others who became involved either on their behalf (such as some Members of Parliament) or in an investigative way (such as the BBC Panorama programme and other journalists). These statements by the Post Office routinely and strongly insisted that there was nothing in the criticisms being levelled at the accuracy of Horizon, and that losses that were shown in SPMs’ branch accounts were caused either by carelessness or dishonesty on the part of the different SPMs who experienced what they considered to be unexplained discrepancies and losses.”  

Judge Fraser noted a point blank denial made by Post Office Ltd in 2015: 

““The Post Office wholly rejects extremely serious allegations repeated in BBC’s Panorama programme of 17 August 2015. The allegations are based on partial, selective and misleading information. 

·       The Post Office does not prosecute people for making innocent mistakes and never has 

·       There is no evidence that faults with the computer system caused money to go missing at these Post Office branches 

·       There is evidence that user actions, including dishonest conduct, were responsible for missing money” 

Judge Fraser noted that a 2016 letter by Post Office Ltd lawyers made the following claims, casting blame on subpostmasters: 

“954…The Post Office’s solicitors’ response to the pre-action letter is dated 28 July 2016, very lengthy, and states that “the investigations to date have consistently pointed towards human error or dishonest conduct in branches as the most likely cause of shortfalls.” 

The judge criticised Post Office Ltd’s decision in 2016 not to investigate one of the software bugs, and noted that internal documents showed that Paula Vennells was aware of the issue and had originally asked her staff to look into the matter: 

“This needs looking into please.” 

Judge Fraser criticised witnesses called by the Post Office Ltd for giving factually incorrect or misleading evidence, and he criticised submissions by Post Office Ltd. For example: 

“249. Mrs Van Den Bogerd was in the witness box for in excess of one day, the longest period of any of the witnesses of fact for either the claimants or the Post Office. Her cross examination led to a far greater understanding of the Horizon Issues on the part of the court, although her written evidence was, as originally drafted, extraordinarily one- sided. She minimised any reference to problems or issues with Horizon, and reverted to potential user error whenever possible as a potential explanation, an approach which she explained in her written statement as providing “plausible” explanations. Her witness statement also stated, in terms, the exact opposite of what the reality of the situation was, and I have given examples at [221], [223] and [226] above. Witness statements are supposed to be factually accurate, and care must be taken in future rounds of this group litigation that they are drafted in accordance with the rules. Making statements that are the exact opposite of the facts is never helpful, to put it at its mildest. It is also the opposite of what witness statements are supposed to be.” 

“442. Mr Godeseth gave express evidence in his witness statement that the Receipts and Payments mismatch bug occurred in September 2010. That date too was factually incorrect. The issue notes refer to Fujitsu knowing about it far earlier, and Mr Godeseth accepted he had seen this document before his cross-examination. That document even records Fujitsu being taken to task by the Post Office about how long it had taken to react, as in “We have asked Fujitsu why it has taken so long to react to and escalate an issue which began in May. They will provide feedback in due course.” Not just the impression, but the express text in Mr Godeseth’s witness statement, was to the effect that the bug was discovered in September 2010 and almost immediately dealt with. That was far from the case, and that written evidence was simply wrong.” 

“422. Mr Godeseth’s witness statement about this, prior to his cross-examination, presented a very different picture to the one that eventually emerged. Indeed, I would go further, and I find that his witness statements omitted some very important headline points in respect of the Callendar Square bug, presented a chronology very different to the real one, and had the effect (whether intended or accidental) of giving a misleading impression of the Callendar Square bug and its impact.” 

“294.…Mr Dunks expressly sought to mislead me by stating that there was no “Fujitsu party line” when it came to the contents of drafting witness statements about audit records for legal proceedings. There plainly is; it was used in the Fujitsu statements in 2010 and it was used by him in his statement for the Horizon Issues trial.  

“565.1 A witness statement was ordered from the Post Office to explain the express, and factually incorrect, submissions made to the court by the Post Office about the Royal Mail’s refusal to produce, at the Post Office’s request, audit documents. The Royal Mail had, contrary to what the court had expressly been told by the Post Office, not even been asked by the Post Office for these. The Post Office’s leading counsel accepted that he had, entirely unwittingly, and on instruction, provided misleading information to the court and explained and apologised as soon as he discovered this.  

“938. The Post Office’s approach to evidence, even despite their considerable resources which are being liberally deployed at considerable cost, amounts to attack and disparagement of the claimants individually and collectively, together with the wholly unsatisfactory evidence of Fujitsu personnel such as Mr Parker.”  

Judge Fraser said he had “grave concerns” about evidence given by Fujitsu employees to other courts: 

““Based on the knowledge that I have gained, I have very grave concerns regarding veracity of evidence given by Fujitsu employees to other courts in previous proceedings about the known existence of bugs, errors and defects in the Horizon system.” 

Judge Fraser criticised failure of disclosure by Post Office Ltd: 

“457. …To see a concern expressed that if a software bug in Horizon were to become widely known about it might have a potential impact upon “ongoing legal cases” where the integrity of Horizon Data was a central issue, is a very concerning entry to read in a contemporaneous document. Whether these were legal cases concerning civil claims, or criminal cases, there are obligations upon parties in terms of disclosure. So far as criminal cases are concerned, these concern the liberty of the person, and disclosure duties are rightly high. I do not understand the motivation in keeping this type of matter, recorded in these documents, hidden from view; regardless of the motivation, doing so was wholly wrong. There can be no proper explanation for keeping the existence of a software bug in Horizon secret in these circumstances.”

Judge Fraser criticised Post Office Ltd’s “extreme” preoccupation with protecting reputation and its avoidance of scrutiny: 

“946. A theme contained within some of the internal documents is an extreme sensitivity (seeming to verge, on occasion, to institutional paranoia) concerning any information that may throw doubt on the reputation of Horizon, or expose it to further scrutiny. One entry in a document that makes it clear that the Post Office itself had already recognised this is contained in a document authored by Mrs Van Den Bogerd, entitled “Extracts from Lessons Learned Log” and dated 11 November 2015. One entry under “issues identified” was as follows in respect of the Post Office’s behaviour up to that date: 

"Failure to be open and honest when issues arise eg roll out of Horizon, HNGx migration issues/issues affecting few branches not seemingly publicised." (emphasis added)” 

Judge Fraser noted that Paula Vennells asked her staff about remote access to the Horizons computer system, (and whether parties other than subpostmasters could be responsible for amending records), and that at the same time she told her staff what she wished to say to the BIS select committee: 

“545….The statement in the Defence was misleading too. It ought also to be noted that the truth did not emerge internally within the Post Office in the email answers provided to internal inquiries in 2015 by senior Post Office personnel, such as the Chief Executive, who posed the specific question in preparation for providing evidence to a Select Committee and asked: “What is the true answer?”  

“546. She also said in the same email “I hope it is that we know this is not possible and that we are able to explain why that is”. The true answer is that, contrary to her aspiration, it was possible.” 

“547. She also stated “I need to say no it is not possible and that we are sure of this because of xxx and that we know this because we have had the system assured.” The true answer to that was also “yes, it is possible”.  

Judge Fraser has passed a file to prosecutors: 

Post Office faces potential criminal probe over Fujitsu IT system's accounting failures 

You will note that the above article on the criminal probe observes that the judge made a finding that Post Office Ltd misled Lord Arbuthnot in 2015, when Paula Vennells was CEO. 

Lord Justice Coulson of the Court of Appeal who rejected an appeal by Post Office Ltd has equated Post Office Ltd’s misconduct as an employer with the behaviour of “Victorian factory owner” 

"The stamp of disapproval: Post Office accused of treating staff like 'Victorian factory' workers" 

The Law Gazette described Lord Justice Coulson’s judgment against Post Office Ltd as “damning”: 

“The Post Office is accused of blaming sub postmasters and mistresses (SPMs) for alleged shortfalls in branch accounts since the roll out of a computer system called Horizon. Earlier this month it sought to appeal the judgement of the first trial, known as the ‘common issues trial’.

However, Lord Justice Coulson dismissed the Post Office’s appeal on all 26 grounds, citing ‘a number of reasons which militate against granting the PO permission to appeal’ and comparing the business to a 'a mid-Victorian factory-owner'.” 

In his judgment, Lord Justice Coulson noted that Post Office Ltd’s application to appeal misrepresented findings by the original judge and it had made claims which were “demonstrably wrong”: 

“Many of the PO’s difficulties now are self-inflicted. For example, as happened during the trial and on the application for permission to appeal both to the judge, and to this court, the PO has consistently put its arguments much too high. It made sweeping statements about the trial and the judgment which were demonstrably wrong. The PO ascribed various findings or conclusions to the judge which, on analysis, form no part of his judgment.” 

He also dismissed aspects of Post Office Ltd’s application to appeal as: 

 “fanciful and wholly unpersuasive.”

He also criticised Post Office Ltd’s aggressive litigation style: 

“7. Another aspect of the PO’s litigation strategy which works against them now is their desire to take every point, regardless of quality or consequences. That was regularly apparent during the trial, where the judge correctly labelled their approach as “attritional”. The same approach was still in evidence on the application for permission to appeal.”

Lord Justice Coulson singled out this example of unreasonable, unaccountable behaviour by Post Office Ltd:

“8.….The PO accepted at trial that the written contracts (the SPMC and the NTC) were inadequate as they stood and that some terms had to be implied. But the PO’s proposed terms were pitched at such a high and general level that they were of no practical value. By contrast, the SPMs put forward 20 odd detailed terms for the judge’s consideration. The judge asked the PO to be more helpful: the PO’s pleaded response was a one-line assertion that the terms put forward by the SPMs were denied. Having refused to put forward the detail of their case on the implied terms at the appropriate time, the PO cannot seriously complain now because they do not like the detail of the implied terms found by the judge.” 

The massive cost of legal proceedings, which have been inflated by Post Office Ltd’s aggressive tactics over years and which will reduce the real level of compensation available to the harmed subpostmasters, have been much criticised. 

Lord Arbuthnot has called for a clear out of Post Office Ltd’s board in the light of all the extremely serious failures of governance and probity: 

Peer calls for clear-out of Post Office board after Court of Appeal confirms major court defeat

Lord Arbuthnot advised that the consultancy Second Sight will hold detailed evidence of executive culpability: 

“My own suggestion is that the government should clear out the entirety of the board and senior management of the Post Office and start again, perhaps with the assistance of consultancy services from Second Sight, who know where the bodies are buried,” he said.”

The final report compiled by Second Sight reported that certain themes emerged from subpostmaster’s complaints about mistreatment by Post Office Ltd:

Second Sight reported on many examples of unfairness in Post Office Ltd’s treatment of subpostmasters. For example:

Second Sight noted a denial by Post Office Ltd that it could remotely access and manipulate branch records, which the High Court has since found to be untrue:

Second Sight reported a lack of cooperation by Post Office Ltd in looking at cases of possible miscarriage of justice:

Some accused subpostmasters reported harassment by Post Office Ltd staff and intrusive searches of their homes. For example, Tracey Merritt reported that her home was searched and that she was asked to sign a “confession” composed for her by Post Office Ltd staff:

"The confession said that I had taken the money and gone shopping.” 

The Sunday Times quoted Lord Arbuthnot’s comments on Paula Vennells’ role: 

““These people have been under extraordinary pressure for decades,” he said. “The Post Office clearly knew there were things wrong with the [IT] system.”

He said the settlement was “not enough” to make up for the suffering they had endured. An inquiry, he added, would root out who was accountable. “It starts with Paula Vennells, but it includes the whole board of the Post Office.”” 

The Sunday Times has reported that Paula Vennells has “declined to apologise”. 

The Daily Mail has also reported on her failure to apologise:

'Heartless' former Post Office boss STILL won't say sorry to postmasters wrongly jailed over an IT glitch. 

Her role in these matters have been documented by Nick Wallis, a journalist who has followed the Post Office trial in great detail: The ballad of Paula Vennells

In 2015 Paula Vennells appeared before the parliamentary Business, Innovation and Skills Committee and gave evidence about the Horizon computer system scandal: 

BIS Select Committee inquiry on Post Office mediation and the Horizon computer system

Mr Wallis writes thus of the 2015 proceedings: 

“During that inquiry, Ms Vennells refused to accept the Post Office had done anything wrong with regards to prosecuting its Subpostmasters, and during that session she failed to answer a question about how much legal coaching she'd received in advance of answering MPs questions.” 

As is plain from Judge Fraser’s detailed judgment of 16 December 2019 and the Second Sight report, by 2015, Post Office Ltd was in fact in possession of substantial evidence of faults in its Horizon computer system. 

Hundreds of subpostmasters and their families have been harmed by Post Office Ltd’s cover up and scapegoating. Some of the harmed individuals have been financially ruined, suffered grave damage to their reputations and livelihoods, serious damage to their health and some have been wrongfully prosecuted, convicted and jailed. A pregnant subpostmaster, Seema Misra, was jailed: 

Jailed Post Office worker: I wanted to kill myself 

Some have died. 

These are some powerful individual accounts of their suffering that have been collated by Nick Wallis:

Victims' Testimony 

You will see from the testimony of victims and their families that some of the affected individuals have died, some through suicide: 

"My uncle took his own life after the Post Office went after him – this High Court ruling is too little, too late" 

"Decent lives destroyed by the Post Office: The monstrous injustice of scores of sub-postmasters driven to ruin or suicide when computers were really to blame" 

The Criminal Cases Review Commision confirmed that it was looking into 35 cases of reported miscarriages of justice from the Horizons computer affair, involving 22 prison sentences: 

CCRC FOI disclosure March 2019 

The Post Office Horizons computer scandal has been catastrophic not only for these individuals, but for confidence in an important organisation and the stability of Post Office Ltd. It has cost the public purse millions that could have been avoided if the Post Office Ltd had acted more accountably and responsibly. 

Given Paula Vennells’ role at the helm of Post Office Ltd for seven years, during which the scandal was mishandled, I would be grateful if you would review the Fit and Proper Person arrangements at Imperial College Healthcare NHS Trust. 

It is vital that NHS staff should not be exposed to the sort of risks and harm that befell subpostmasters, and that any organisational wrongdoing and any patient harm and deaths caused by Imperial Healthcare NHS Trust should not be approached in the way that Post Office Ltd approached the flaws in the Horizon computer system. 

I copy this to Lord Arbuthnot for his information, and I copy it to Dido Harding the chair of NHS Improvement, which is the body which is responsible for appointing the directors of non-Foundation NHS trusts such as Imperial College Healthcare NHS Trust. I also copy it to Tom Kark QC in respect of his review of the application of FPPT in the NHS. 

Lastly, I note that on 23 July 2019, after Paula Vennells had joined the trust, that the Care Quality Commission rated the trust as “Good” in the Well-Led domain.

 The CQC inspection team was as follows: 

“The inspection team consisted of one CQC hospital inspector, an observer (CQC staff) and two specialist advisors (matron and head of midwifery). The inspection was overseen by Terri Salt interim head of hospital inspections." 

I found no comment in CQC’s inspection report on whether the trust was meeting its duty under FPPR to ensure that its directors were Fit and Proper individuals. 

Instead, there were these comments on how the trust continued to be “Well Led” following Paula Vennells’ appointment as trust chair: 

"The leadership, governance and culture of the trust promoted the delivery of high-quality person-centred care. 

Managers at all levels in the trust had the right skills and abilities to run a service providing high-quality sustainable care. There have been several changes in senior leadership since the last inspection. Following his appointment as CEO at NHS Improvement, Ian Dalton was replaced by Professor Julian Redhead, acting as the interim chief executive officer, from 4 December 2017. Professor Tim Orchard was appointed as chief executive officer from 7 June 2018. Professor Orchard was formerly the trust’s interim medical director and divisional director of medicine and integrated care. The trust also had a new Chair of the board, Paula Vennells CBE joined the trust on 1 April from the Post Office, where she is group chief executive. Despite these changes, we found a stable senior leadership team in place with the appropriate range of skills, knowledge and experience. The trust leadership team had a comprehensive knowledge of current priorities and challenges and was taking action to address them."

Yours sincerely,

Dr Minh Alexander

Cc Ted Baker CQC Chief Inspector of Hospitals 

      Dido Harding Chair of NHS Improvement

      Lord Arbuthnot

      Tom Kark QC