Judgment No 2: Extremely Aggressive Litigation Tactics

The Royal Courts of Justice, recently.

The judge in the Post Office group litigation has issued an interesting ruling ahead of next month's trial.

For the last five weeks the Post Office has been trying to get sections of the Justice for Subpostmasters Alliance (JFSA)'s witness statements struck out before the trial starts. 

That ended on 15 October with Mr Justice Fraser's ruling, which comprehensively dismisses the Post Office's application along with a suggestion that it was only made to stop some very dirty linen being washed in public. 

In judgey-speak:

"I [...] suspect that in the background to this application the defendant is simply attempting to restrict evidence for public relations reasons.... Whether this “generates adverse publicity” for the defendant is not a concern of the court, as long as the evidence is properly admissible... which I have found it is. The court is not a marketing or PR department for any litigant, and the principle of open justice is an important one."

The judge also reveals that the combined costs accrued by both sets of lawyers so far has now topped £10,000,000. Ten million quid! The JFSA are funded by Therium Capital Management. Therium will take a cut of any damages the Subpostmasters are awarded, and shoulder their costs if they lose. The Post Office is funded by you. And me. Assuming they are burning through cash at the same rate as the claimants that's £5m of your money they've spent defending this class action. And the trials have yet to start.

One of the most striking things about the 20 page, 11,000 word document is not the ruling itself, but the world weary, exasperated tone the judge adopts throughout.

Here a flavour:

"The legal advisers for the parties regularly give the appearance of taking turns to outdo their opponents in terms of lack of cooperation... it appears to me that extremely aggressive litigation tactics are being used in these proceedings. This simply must stop. It is both very expensive, and entirely counter-productive, to proper resolution of what is so far an intractable dispute. I made similar comments in judgment No.1. These must have fallen on deaf ears, at least for some of those involved in this case."

If this epic saga is new to you, here's some background: the first trial in the Bates v Post Office class action (more correctly known as a Group Litigation Order or GLO) is due to begin on 5 November this year. 

Bates is Alan Bates, a former Subpostmaster at the Craig-y-Don branch in Llandudno who was sacked by the Post Office in 2003. After his sacking, Alan formed the Justice for Subpostmasters' Alliance, and it was under the JFSA banner that Alan rallied similarly aggrieved Subpostmasters to his cause. 

There are at least 561 claimants now signed up to the GLO by the JFSA's lawyers Freeths, and the first trial in November will feature evidence from six witnesses drawn from among the claimants. The trial will focus on the contractual relationship between the Post Office and its Subpostmasters and the judge is calling it the Common Issues trial. The second trial in March will deal with what might have gone wrong with the Post Office's Horizon IT system and that is being referred to as the Horizon Issues trial. 

The six "Lead Claimants" for the first trial have been chosen because what happened to them appears to be representative of what happened to many of the claimant Subpostmasters, with particular reference to the ways their contracts were handled (I suspect when it comes to the next trial on Horizon-related issues, a similar number of different "Lead Claimants" will be selected because their Horizon problems are representative of many of the problems wider numbers of claimants experienced).

On 10 August this year the JFSA made the witness statements it intended to use at the first trial available to the Post Office (the defendant). On 5 September the Post Office made a formal application to strike out 160 paragraphs of evidence from those six witnesses and suggested to the judge that this could be dealt with during an already scheduled costs hearing on the 19 September. The judge refused, saying he thought there would be too much to get through on one day, and so scheduled a hearing to discuss the strike-out application on 10 October.

Having proposed to deal with it on 19 September, the Post Office decided the 10 October date was too soon, and asked to have its strike-out hearing put back to the start of the trial on 5 November. The judge refused, saying:

"Extensive time at the trial... should not be spent arguing about what evidence should be admitted at that very trial." He notes the Post Office had relied "as one of the grounds justifying its strike out application, upon lack of time at trial. It would be rather circular to hear such an application relying upon such grounds at the very trial for which it was argued there was insufficient time."

But why did the Post Office say it didn't like large chunks of the claimants' witness statements? To paraphrase, the Post Office claimed the offending paragraphs:

a) weren't relevant to the first trial, because they related to events which had nothing to do with the witnesses' contracts.

b) were too subjective

c) weren't relevant to the area of law which the trial was examining

The Post Office said the offending parts of the witness statements should be struck out for five reasons:

1) the court had ordered evidence for the trial be restricted to contractual issues

2) there wasn't enough time to deal with the size of the witness statements at trial

3) the Post Office did not have enough evidence to respond to the claims made in the offending paragraphs

4) there was no benefit to the court in accepting the paragraphs

5) the trial was not set up to make findings on issues outside the area of law under examination

Before examining these arguments in his ruling the judge makes two pointed comments:

"The application by the defendant to strike out this evidence appears to be an attempt to hollow out the Lead Claimants’ case to the very barest of bones (to mix metaphors), if not beyond." 

and

"[Mr Green QC - the JFSA's barrister] submitted in his written skeleton [argument] that the [strike-out] application “appears to be an attempt by Post Office to secure an advantage at the Common Issues Trial by selectively tailoring the evidence which the Court is to consider.” I accept that submission too; the application certainly gives that appearance." 

Over several thousand words the judge concludes the Post Office's application is essentially a load of piffle. He rules the evidence in the paragraphs which the Post Office wants struck out is indeed relevant to the GLO. He also notes the point made by the JFSA's barrister that the subjects and themes which the Post Office has taken legal exception to in the JFSA's evidence are remarkably similar to those relied on (at length) by the Post Office in its own defence.

He then swiftly dismisses the rest of the Post Office's arguments, seeming particularly annoyed by the Post Office's suggestion that if the offending paragraphs were not removed the forthcoming trial:

"would simply become unmanageable, and cross-examination would be constantly interrupted by regular repetitive objections by Leading Counsel for the defendant on the same grounds, again and again."

"I find that submission surprising" notes the judge, with a hint of understatement:

"These submissions by the defendant could, on an uncharitable view, appear to be made almost as vague threats to disrupt the Common Issues trial."

Finally, the Post Office has often been accused by aggrieved Subpostmasters of being arrogant and belittling in its dealings with them. During the parliamentary debate I attended in December 2014 Andrew Bridgen MP said:

"The way in which Post Office senior management have dealt with our working group of MPs has been extremely high-handed. I share my right hon. Friend’s concerns: if Post Office management speak to Cabinet members and senior Members of Parliament in the way they do, the way they treat their sub-postmasters must be feudal."

These are the comments the judge makes on the subject in his 15 October 2018 ruling:

"Some passages of the Lead Claimants’ evidence relate to the circumstances in which their engagement with the defendant was terminated... The Lead Claimants complain that such terminations were abrupt, came out of the blue, accused them of falsifying accounts and made other statements that were not factually accurate, and also that the defendant’s approach (and that of its solicitors) was generally heavy handed. I have read some of this correspondence, as it was exhibited to the witness statements. The tone of some of it is undoubtedly aggressive and, literally, dismissive. I make no findings about any of this at this stage, nor do I even consider whether such an approach was, or was not, justified in any particular individual case at the time. However, regardless of any rights and wrongs of such an approach then, with the Lead Claimants individually in that correspondence, I wish to make one point entirely clear, so that this cannot be misunderstood. An aggressive and dismissive approach to such major Group Litigation (or indeed any litigation) is entirely misplaced." [my italics]

I wonder why he felt the need to say that?

You can read the judgement in full here. As I say, it's quite interesting.

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.

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Previews in the Times and Guardian

The Great Post Office Trial begins on BBC Radio 4 at 1.45pm on Monday 25 May. It is a ten-part series and each episode is 15 minutes long with two hour long omnibus editions going out on the next two Friday nights. You can listen to the series as it goes out, on ten consecutive weekdays at 1.45pm, or online after it's been broadcast. See below for a couple of press previews: 

Saturday's Times:

Saturday's Guardian:

These are the epsiode titles - you can click on them and listen to them shortly after transmission if you miss them going out live:

The Imaginary Heist, The Bloodiest Mind in Wales, I Love My Post Office, Navigating the Matrix, Follow the Money, War of Attrition, A Call for Help, The Big Green Button, Extremely Aggressive Litigation, and What the Hell Had Happened.

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.

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Common Issues trial: the judge's comments part 3 - Post Office witnesses

The most important Post Office witness at the Common Issues trial was Angela van den Bogerd. She is a Director, and she deliberately tried to mislead a judge on oath in court. Here are his comments:

409. She is not only the most senior witness called, but she is obviously a very senior person within the Post Office organisation.

413. Mrs Van Den Bogerd has been closely involved in the Post Office response to the Second Sight Interim Report.

414. Indeed, some passages of the Response [to Second Sight] were, word for word, exactly the same as her witness statement. She did however attempt to distance herself from it where she could, by denying she was “the author” (it was never suggested she was) and denying that she had signed it (again, it was never suggested she had).

416. Notwithstanding the making of the GLO [this group litigation], Mrs Van Den Bogerd appears entrenched in her refusal to what I consider to be the obvious common themes connecting all these claims, and I simply cannot understand this.

417. There are two specific matters in which I find that she did not give me frank evidence, and sought to obfuscate matters, and mislead me.

418. ... she explained that her answer that she was coming to the matter [information about a lead claimant Naushad Abdull] cold was “a mistake”. I reject that explanation. Her Horizon witness statement is very detailed, and was signed just a few days earlier than her cross-examination. Mrs Van Den Bogerd is a very clever person, in my judgment, and she had detailed knowledge of the Lottery TCS/Mr Abdulla situation. She sought to give me the impression that she was being caught unprepared, and had only come to the matter cold when being asked questions in the witness box. This was wholly misleading.

[the judge repeats this later on the judgment: 544. ... she tried to give me the impression that the detailed cross examination about Mr Abdulla was something she could not really deal with because she had no detailed knowledge in the witness box. This was simply not correct; she had signed a very detailed witness statement just a few days before for the Horizon Issues trial which dealt with the matters being put to her about Mr Abdulla in considerable detail. I find that she was simply trying to mislead me. ...]

419. The second matter concerned a very valid point that Mr Green [claimants' QC] put to Mrs Van Den Bogerd that she was very reluctant to give evidence that would be unhelpful to the Post Office’s case.

425. In a witness statement by her of 145 paragraphs, 44 of those are devoted to the Post Office as a business. None at all deal with the very great number of detailed points put to her by Mr Green, based on internal Post Office documents over the years, which demonstrate an internal view of unsatisfactory performance at odds with the Post Office position in the case.... Her judgment also seems to have been uniquely exercised to paint the Post Office in the most favourable light possible, regardless of the facts.

432. Mrs Van Den Bogerd was the first Post Office witness clearly to explain that even if a SPM [Subpostmaster] “settled centrally” a disputed item, it was treated by the Post Office as a debt, which would be subject to the debt recovery process, unless that process was positively suspended.

441. Mrs Van Den Bogerd would, on some occasions, give clear and cogent evidence... However, for the most part, she was extraordinarily conscious of the need to protect the Post Office’s position in the case generally, which given her very close involvement in the Horizon problems with SPMs over the years, effectively meant protecting her own position too, which led to a disregard for factual accuracy. I find that it is necessary to scrutinise everything she said as a witness, both in her witness statement and in cross-examination, and treat it with the very greatest of caution in all respects.

544. The Post Office has appeared determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and expensive as it can. Mrs Van den Bogerd did not provide any reference in her witness statement to matters unfavourable to the Post Office case. That witness statement was her evidence in chief, and therefore supposed to be the whole story. I find that she did not do so, because those matters (which Mr Green put to her in some detail) were highly unfavourable to the Post Office’s case. She was simply not prepared to volunteer such matters in a witness statement. She was only grudgingly prepared to accept them in cross-examination, after some time.

546. Mrs Van den Bogerd is, in my judgment, a particularly stark example of how a witness had to force their evidence of fact to fit with a pre-ordained thesis. She remains, apparently genuinely, of the view that none of the different claims by the 589 Claimants have common issues or themes between them, and every single case is simply factually different, with no connection between them. This is despite the approval of a Group Litigation Order by the President of the Queen’s Bench Division.

548. Unless I state to the contrary, I would only accept the evidence of Mrs Van den Bogerd and Mr Beal in controversial areas of fact in issue in this Common Issue trial if these are clearly and uncontrovertibly corroborated by contemporaneous documents.

Angela van den Bogerd is back in court on 18 March giving evidence in the Horizon trial. That will be interesting.

If you want to read the full Common Issues trial judgment, click here. Or open it up in a different window and you can cross-refer if you come across anything in this post you want to explore in more detail.

The remaining 13 Post Office witnesses are dealt with below, and the findings about them are telling, but first here are the judge's overall conclusions about the Post Office witnesses:

541. ... a number of contemporaneous documents internal to the Post Office show that there has been, at least to some degree, an awareness of Horizon problems within the Post Office itself over a number of years.

543. These internal Post Office entries make it clear that, notwithstanding the tenor of the Post Office evidence before me, behind the scenes there were at least a number of people within the Post Office who realised that there were difficulties with the Horizon system.

545. The problem with the Post Office witnesses generally is they have become so entrenched over the years, that they appear absolutely convinced that there is simply nothing wrong with the Horizon system at all, and the explanation for all of the many problems experienced by the different Claimants is either the dishonesty or wholesale incompetence of the SPMs. This entrenchment is particularly telling in the Post Office witnesses who occupy the more senior posts. When even a Post Office auditor, Mr Longbottom, attempts to go beneath this veneer, properly to investigate an unexplained shortfall, and finds that he is not provided with the documents he considers necessary, very considerable doubts arise about the approach adopted at the Post Office to its overall control of information.

547... They give me the impression that they simply cannot allow themselves to consider the possibility that the Post Office may be wrong, as the consequences of doing so are too significant to contemplate.

Individual witnesses:

Nick Beal (has worked for the Post Office since 1987)

366. Mr Beal is now the Head of Agents’ Development and Remuneration.

369. Mr Beal was completely unrealistic

371. Mr Beal also gave evidence that is hard to reconcile with the actual documents themselves.

373. Mr Beal sought to give me the impression that the intention of the Post Office was to keep the liability for losses the same when the NTC [network transformation contract - a successor to the Subpostmaster contract] was introduced. I doubt very much that was the case, and I reject that evidence by him.

375. Mr Beal’s way of giving evidence was very much the house Post Office style, certainly for the more senior of its management personnel who gave evidence. This was to glide away from pertinent questions, or questions to which the witness realised a frank answer would not be helpful to the Post Office’s cause. ... He sought to give me evidence highly favourable to the Post Office, which I consider was slanted more towards public relations consumption rather than factual accuracy.

376. His evidence came across to me as a public relations exercise.

Paul Williams (has worked for the Post Office since 1979)

377. Mr Williams is the Restrictions Adviser to the Post Office

384. I found Mr Williams a clear and helpful witness... his evidence certainly does not contradict Mr Bates’ [lead claimant] account in general terms, it rather confirms it.

385. I prefer the direct evidence of Mr Bates to the more general “this is what should have happened” type of evidence from Mr Williams.

Sarah Rimmer (has worked for the Post Office since 1999 - a newbie)

388. She sensibly accepted receiving a document such as the Subpostmasters' Contract on the day of branch transfer was “a bit late” as Mr Green put it to her, but regardless of that, in my judgment it was too late. Although it is helpful to have one’s judgment on a point confirmed by a Post Office witness.

389. [On not letting a Subpostmaster see their contract until the day they sign it, she says] "Whenever I spoke to applicants, we obviously couldn't send it out prior, but there is nothing stopping the outgoing from showing you.”

390. I can think of no logical reason why the Post Office should have been so secretive to incoming Subpostmasters about the document which the Post Office considered would contain their contract terms. There would be every reason to provide it, rather than either withhold it.

392. Mrs Rimmer was a reasonable and straightforward witness. Where her evidence differed on specific issues of fact with any of the Lead Claimants, I prefer the evidence of the Lead Claimants, simply because her evidence was so general.

John Breeden (has worked for the Post Office since 1997)

397. On the evidence that I have accepted from the Lead Claimants, [Mr Breeden's statement on receiving their contracts immediately prior to signing them] is not even remotely accurate or correct for at least some who contracted on the SPMC [Supostmaster contract], and those affected could be a large number. Mr Breeden is a senior person within the Post Office and must have known that this general statement was not wholly correct. This is an example, I consider, of PR-driven evidence.

400. Initially he said that that there was no material difference in the SPMC and NTC terms, the latter was just more explicit. That is simply not correct, and I do not accept that Mr Breeden could believe it was.

408. As with the other more senior members of the Post Office group of witnesses, Mr Breeden is articulate, intelligent and also acutely aware of how much the reputation of the Post Office hinges on these proceedings. His evidence was presented in terms obviously designed to put the best possible gloss for the Post Office on matters, and some of his statements simply did not stand scrutiny.

Timothy Dance - length of service not stated

442. Mr Dance is the Retail Transformation Integration Manager.... At one point he said “to myself as an accountant” and I therefore assume he was so qualified, although it is not mentioned in his witness statement.

446. His witness statement contained statements about matters of which he had no knowledge whatsoever. For example, he had said:
The “Post Office would discuss with the National Federation of Subpostmasters (NFSP) the questions asked in business plans. The NFSP, therefore, was aware of what information applicants had to provide in their business plans.”

447. He knew nothing about such discussions at all. He had not had any such discussions himself and assumed that this had been done by [his colleague] at a steering committee. When a series of rather confusing answers were forthcoming, what it boiled down to was that the NFSP could, may or might know about the contents of such plans if applicants showed them any particular pro forma. There again, they may not.

451. Overall, I found Mr Dance’s approach to giving his evidence unhelpful. His written evidence glossed over important points ... and orally Ms Donnelly [one of the JFSA's barristers cross-examining Mr Dance] would often have to pursue a particular point in order to obtain a straight answer. I consider his evidence suffered from an overarching reluctance to provide accurate evidence, if that may assist the Claimants.

Helen Dickinson (started Royal Mail in 1992)

452. Mrs Dickinson is a Security Team Leader at the Post Office.

456. The escalation of fraudulent behaviour is described in the fraud prevention field as “the fraud triangle”. When she was being cross-examined about this, Mr Green referred to the Enron corporate fraud to suggest that both companies and individuals can engage in conduct that increasingly escalates in this way within the fraud triangle, and that phrase is also used to refer to companies as well as individuals. Mrs Dickinson claimed not to know about the Enron case.

458. Mrs Dickinson is a fraud specialist and it is simply inconceivable that she was not familiar with the Enron case, at least in outline terms. I reject her evidence that she did not know about Enron, which I find incapable of belief. The only reason to claim ignorance, as she did, was simply to be unhelpful, which is what I find she was being.

[I actually disagree with the judge on this, I thought she was just a bit dim]

459. With respect to Mrs Dickinson, and in any event, in my judgment her evidence wholly misses the central point that is at issue in this litigation. I entirely accept that the Post Office requires its SPMs to be honest, and I do not believe that point to be in issue. If it is, it should not be. 

460. She had only limited knowledge of the Horizon system... she said "...ultimately I wouldn't work on the Horizon system because then that could cause a conflict with me investigating a matter.”

461. It is not clear why having more detailed knowledge of Horizon, or even having worked on Horizon, would cause her a conflict in the way she explained. Logic would suggest that an investigator might be assisted by having more – or even some - detailed knowledge of how Horizon worked; at the very least, I would expect her to know the options available to a SPM if they were faced with (say) a TC that would affect their branch accounts with which they disagreed. In my judgment, an investigator such as Mrs Dickinson ought to have a detailed knowledge of how Horizon works, certainly in terms of the options available to a SPM at the end of a trading period, as otherwise she would not know if a SPM she was investigating was telling her the truth or not.

Michael Shields (started with the Royal Mail in 1989) Mr Shields' job is Temporary Subpostmaster Advisor.

466. His knowledge of the relevant terms of the different contracts under which SPMs were engaged, and hence which did or did not deal with a power to appoint a Temp at all, was non-existent. The SPMC is completely silent on the point; he did not know this. The Modified SPMC included an additional provision that stated:

"In such cases the retail network manager may require the subpostmaster to make his premises available at a mutually agreed rate of payment for the continued provision of Post Office services."

Mr Shields was unaware of this too. He was aware of the Local NTC contract, however, and was more familiar with it than either of the SPMCs, although he would not look at it during his role to read or check the wording. He was not familiar with the term used in the NTC for a Temp, namely “temporary substitute”.

469. ... Mr Shields did not know of the differences between the SPMC, the Modified SPMC and the NTC in terms of the different contractual obligations upon suspended SPMs... This is at least consistent with the point accepted by Mr Breeden, namely that the Post Office doesn't tend to focus on the precise words of a contract, it knows what its interpretation is and that is what everyone works to. This could be described as the Post Office method of contractual construction.

472. ... either Mr Shields was not being straight with me, or the Post Office does not follow its own policy. I consider he was giving me accurate evidence, which means that this policy set out in the 2015 document must be being routinely ignored by the Post Office.

474. His lack of knowledge of the terms of the SPMC and the Modified SPMC was surprising... but did match the Post Office’s approach to contract wording generally. The Post Office personnel believe they know what a SPM’s obligations are and they do not need to trouble with the wording of the NTC or the SPMC, or the differences between them.

Elaine Ridge (started at the Post Office in 1980)

476. part of her written evidence sought to give the impression, through careful wording of her witness statement, that she had covered the same ground in the interview as contained in these much later checklists...  This passage of her evidence appeared to have been written for her.

478. I do not accept that she told Mr Abdulla to take either legal or professional advice, as her written evidence suggests in paragraph 18 of her statement. That passage of her written statement is, I am afraid, just wishful thinking on her part, and on the part of the Post Office. I do not accept she told him that he was obliged to provide personal service. I find as a fact that he was not told to take legal or professional advice.

480. Mrs Ridge seemed to me to have a greater awareness of the need to be fully accurate and helpful to the court than some of the other Post Office witnesses.

David Longbottom (started at the Post Office more than 30 years ago)

488. Mr Longbottom was somewhat too ready to argue the case for the Post Office... This was not remotely an answer to the question, and is exactly the sort of argumentative and combative answer that is wholly unhelpful.... 

 Michael Webb (started working for the Post Office in 1979)

498. Mr Webb seemed to have a fairly open mind about the way he gave evidence, without worrying in advance which direction the answers might take him, and I found him reliable.

[most of his evidence seemed to confirm the Subpostmasters' position that they were given lots of documents to sign, but not read on the day they become Subpostmasters]

Michael Haworth (started at the Post Office in 1978)

502. [His] evidence is, purely and simply, an attempt to put matters as favourably for the Post Office regardless of the accuracy of the evidence. Mr Haworth had initially in his written evidence said he had used the same checklist as Mrs Ridge and Mr Trotter. This was not the case... It is a puzzle how someone can expressly say their checklist was the same as that of Mrs Ridge, if they have never seen Mrs Ridge’s checklist. It is also a puzzle how a witness statement can say a witness did a particular thing, produce a document in reference to that, but then the witness themselves say that they have not seen the document produced in support.

503. I did not find his evidence either helpful or accurate... Neither did he know how Horizon worked, or that a SPM would be forced to accept in their accounts figures with which they disagreed. 

505. I reject Mr Haworth’s evidence that he would always explain to an applicant at interview that they should obtain legal advice... There is no doubt that the awareness on the part of the Post Office of the importance of recommending an incoming SPM take independent legal advice eventually dawned upon the Post Office at, or about the time of, the introduction of the NTC... However, there is no reliable evidence to suggest that this was done in the days prior to the use of the NTC. Mr Haworth may have persuaded himself that he did – and I am not finding that he consciously sought to mislead me – but there is no corroboration of this... Mr Haworth’s evidence that he did tell an interviewee to seek legal advice is, in my judgment, simply wishful thinking on both his, and the Post Office’s part, and I find that this did not occur.

Andrew Carpenter (started at the Post Office in 1993)

507. Mr Carpenter said he had noticed his witness statement was wrong so far as the location was concerned, but he had not asked to correct it. This was not a promising start to a witness giving accurate evidence. However, on the basis that he could not remember the interview at all, it may not much matter that he could not even remember where it had taken place.

the Post Office approach to investigations and informing Subpostmasters of what was going on...

515.4 An investigation would only be started – even on Mr Carpenter’s evidence – if after an invoice had been sent (which did not refer to contractual obligations for losses, and asserted sums due to the Post Office in blanket terms) an SPM did not pay it and said “I can’t make it good, I have a problem”. I have seen no correspondence to any SPM that explains this, and this ability does not seem to have been notified to any SPM. It is also directly contrary to the correspondence sent to the SPM telling them to pay the sum due. No such option is explained in that correspondence.

516. I have already identified, when considering Mrs Stockdale’s evidence, that these proceedings contain very wide ranging and extremely serious allegations against the Post Office. They include allegations of unlawful treatment, including that the Post Office has prosecuted Claimants, leading to bankruptcy and community and custodial sentences (which means imprisonment). Shortly after proceedings were issued, the Post Office acted as it did with Mrs Stockdale, shutting her branch and stating she was considered to have committed a criminal offence. It also expressly stated to her factually untrue statements, namely that she had not contacted the NSBC or asked the Post Office for assistance. I find that she had.

517. It must be understood with crystal clarity that I am not making findings on these substantive and serious issues in this judgment. Whether the Post Office was guilty of acting in the ways complained of by the Claimants can only be resolved later in these proceedings after other trials. However, even putting it at its best for the Post Office, such conduct towards Mrs Stockdale during this early stage of the litigation could potentially be construed as threatening, oppressive, and potentially discouraging to other potential Claimants to become involved in the litigation, whether by accident or design. I can think of no reason why such an approach was taken unilaterally by the Post Office in such a way, without the Post Office’s solicitors giving advance notice to her solicitors, so that a less confrontational and aggressive path was adopted, given her role as a claimant in the litigation. However, even once it was done and she was suspended, the Post Office continued to act in a highly regrettable fashion.

518. Further, the discourtesy in the Post Office simply ignoring so many communications from the SPM herself to them is extremely puzzling. The Post Office wrote to her directly (rather than to the Claimants’ solicitors on her behalf) when it suited them; her requests back in response were not even given a bare acknowledgement, or a request that she communicate to the Post Office’s solicitors. Even her most basic and immediate request to be provided with details of the appeal process was simply ignored. Even Mr Carpenter accepted that, if he had not known she was a claimant (which he was not sure about) he had found out extremely quickly. Yet here the Post Office was, simply ignoring and “stonewalling” the desperate attempts to communicate back to them from Mrs Stockdale. I do not understand why direct communications were made to her given she had solicitors on the record acting for her. However, if direct communications were to adopted, that should have been two- way, and there is no reason to send letters directly but entirely ignore everything that came back in return.

519. I am troubled by the way that the Post Office has acted in relation to Mrs Stockdale since April 2016.

520. That concern is amplified by the approach of the Post Office to specific disclosure requests made by the Claimants’ solicitors in this litigation in the period following the audit. On 26 May 2016 Freeths asked for disclosure of different categories of documents relating to Mrs Stockdale. These were precisely drafted categories, and included (for example) Helpline printouts, audit reports, and internal Post Office correspondence including that relating to the basis for, and making of, the decision to audit her branch and suspend her. The answer to that from the Post Office’s solicitors Womble Bond Dickinson was in a letter dated 2 June 2016 and said “in circumstances where you have not set out any basis on which you believe that our client’s actions have been unlawful or otherwise affect Mrs Stockdale’s ability to participate in the Bates High Court litigation, we are not currently minded to engage in ad hoc piecemeal disclosure connected to a live investigation.” All that the Post Office was prepared to do was preserve the documentation, which it should be noted, it would be required to do as a bare minimum to comply with a litigant’s obligations of disclosure generally. I am surprised that it even occurred to the Post Office otherwise that it might not preserve such documents. Offering to preserve potentially important documents in High Court litigation, rather than destroy them, is not a concession.

523. For the reasons I have expressed above, I have considerable misgivings about the Post Office’s motivation for the treatment of Mrs Stockdale during this litigation, and for the treatment itself in terms of refusal to provide obviously relevant documents. The evidence by Mr Carpenter, far from satisfying these concerns, actually increases them. The Post Office appears, at least at times, to conduct itself as though it is answerable only to itself. The statement that it is prepared to preserve documents – as though that were a concession – and the obdurate to accept the relevance of plainly important documents, and to refuse to produce them, is extremely worrying. This would be a worrying position were it to be adopted by any litigant; the Post Office is an organisation responsible for providing a public service, which in my judgment makes it even worse.

Brian Trotter (started with the Post Office 39 years ago)

530. his written evidence in chief was not only so general, but so inaccurate.

532. it appeared as though his witness statement had been written by someone else, and not by Mr Trotter.

533. I have already stated above, when reviewing Mrs Dar’s evidence, that I do not accept that Mr Trotter specifically told her she did not need to obtain legal advice. 

534. Mr Trotter was accused of being evasive in some of his answers. I do not accept that he was being evasive, but he certainly seemed extremely nervous about giving evidence before me that he thought might be unhelpful to the Post Office.

535. When a particular claimant states that they never received the SPMC, and all that the Post Office can do is to produce a witness who basically says “well, it should have been in the envelope” and that claimant is accepted by the court as being reliable and broadly accurate, it does not require the application of advanced theoretical physics to conclude that the SPMC was probably not, on that occasion, sent to that claimant.

538. The confusing and contradictory nature of the documents produced by the Post Office to SPMs, and the difference in terminology when referring to a particular document, together with the same terminology to refer to different documents, does not assist the Post Office in its factual case against the different Lead Claimants in this trial. 

539. The approach of the Post Office can be summarised as follows: the outgoing SPM would have had his or her contract available; you would, should and probably did ask to see it; if you had, it would (or might) have been shown to you; therefore you had knowledge of the terms, and contracted with the Post Office on that basis. The weaknesses in such an approach are in my judgment obvious, and numerous.

Common Issues trial: judge's comments part 1
Common Issues trial: judge's comments part 2

Day 2 write-up: Alan Bates and Pam Stubbs take the stand

Fifteen years after his sacking, Alan Bates, former postmaster of Craig-y-Don Post Office in Llandudno, North Wales, had his day in court.

Alan Bates, JFSA founder

Alan was there to be cross-examined on his evidence as one of the Lead Claimants to the Common Issues trial, which is part of the wider Bates and others v Post Office group litigation action.

Alan's evidence is 41 pages long. You should be able to read it here.

The Post Office's QC, the extremely capable David Cavender started by agreeing Alan's dates as a Subpostmaster and then subsequent campaigner against the Post Office, suggesting that we were going to start talking about things a very long time ago, and memory couldn't necessarily be relied on for exact details.

Alan said "I won’t remember all the detail but because they affected me they were of concern to me - and I recorded them at the time"

Alan hetn spent the rest of the morning being questioned on his Subpostmaster's contract. Alan has a reputation as a dogged, methodical, precise sort of fellow. Mr Cavender asked him about this element of his character. He suggested Alan was an experienced businessman who had worked on big projects and thrived on attention to detail. Alan accepted this characterisation.

The QC then subjected Alan Bates to some relentless questioning about his purchase of the Craig-y-Don Post Office and retail business. In his written evidence, Alan maintained he did not see a full Subpostmasters' contract before he took over the branch. Mr Cavender found this incredible. Having painted a picture, which Alan accepted, of an experienced businessman who thrived on detail, how on earth could or would he take on a business without seeing the contract or discussing the nature of his liabilities on the business?

Alan knocked this back, saying he didn't discuss the Subpostmaster's contract with his predecessor, because it was something he expected to discuss with the Post Office, and he said when he did sign a contract with the Post Office, he thought the three short documents and covering letter constituted the contract, and had no idea that there was another 144 page document called the Subpostmaster's contract which contained all the detail about his responsibilities if everything went wrong.

The QC seemed to think this was ridiculous. He asked how Alan could possibly have gone into a business deal without seeing the contract which underpinned it. He then suggested that Alan was wrong and he did have the contract. Alan maintained he didn't.

Then Alan was asked why, when he signed upwards of twenty documents on the day he took over the Post Office in the presence of a Post Office manager, he didn't read any of them. Hardly the mark of an attention to detail man said the QC.

Alan said it was because he didn't think they were that important, he took what he was being told on trust and this was on the day he took over the Post Office. A lot of the time they were trying to serve customers.

The QC then asks Alan why he said in his witness statement the Post Office never drew attention to section 12.12 of the Subpostmasters' contract when he had actually signed a document in 1999 in which the Post Office literally draws attention to that very clause.

There is a beat and then the QC asked "Did you draft your own witness statement?"

"Yes!"

Alan collected himself to say the Subpostmasters' contract (as a specific 144 page document) was never discussed by the Post Office during his interview or on the day he took over the Post Office. He says his witness statement is his recollection of what he was told at the time.

The QC put it to him again that he had been sent the Subpostmasters' contract as there is no way he would have entered into a contract with the Post Office without it. Alan said if he was sent the Subpostmasters' contract there is no way he would have signed it without sending it to his lawyer first for advice.

After a gruelling couple of hours, the QC changed tack and started asking about Alan's refusal to follow Post Office procedures when Horizon had been installed and he had a cash discrepancy. In the days when Alan was a Subpostmaster it was possible to deal with a discrepancy in three ways

a) settle it to cash
b) roll it over into the next accounting period as a loss
c) put it into suspense and dispute it

Alan had a number of mysterious discrepancies with Horizon which he was frustrated at not being able to get to the bottom of.

He put a four figure sum into dispute which sat in suspense for more than two years. The Post Office couldn't work out the source of the dispute and so wrote it off. Alan got more discrepancies which he, rather than put into suspense, just kept rolling over. Alan was repeatedly told to pay this discrepancy off and stop rolling it over. Alan refused. When questioned on why he didn't just put it into dispute Alan said there were three reasons

a) at the beginning there was already the £1000+ in suspense and he didn't know if it would come back to him
b) he wanted the Post Office to give him the tools to interrogate Horizon properly
c) he wanted to find out whether he was responsible for the debt

The QC pointed out he could do all that and put it into suspense. So why didn't he?

Alan blustered a bit at this. The QC asked the same question again.

The judge then interjected to point out that the QC was ignoring parts of the Post Office's approach in the letters that they sent Alan which basically demanded payment.

The QC admitted that this was, of course, the Post Office's preferred option - Alan just paying up. But he still had the option of putting it into suspense and didn't.

Towards the end of the cross examination, the QC suggested that Alan had become a little fixated on Horizon to the extent he saw it as the source of all his problems and he's remained fixated ever since.

In fact, the QC said it was quite conceivable the errors could have been down to him or his assistants.

Alan rejected this.

But, said the QC he did very little in the way of investigation into how losses were appearing in his branch before blaming Horizon.

Alan said no - every time he looked at Horizon for a mistake he found it.

A few minutes were spent on the quality of the training Alan got for Horizon ("sadly lacking in a major way"), and that was that.

Then came Lead Claimant number 2 Pam Stubbs. I made a film about Pam in 2014 for the One Show - you can see it here (she's in the second of two films) which is just as well as I failed to get a photo of her outside court.

Pam and her husband ran the Barkham Post Office near Wokingham in Berkshire for a total of 23 years. Pam's husband Martin ran the branch until his death to an aggressive form of cancer in 1999. The day after he died, Pam became Subpostmaster.

When Pam took to the witness box in court today, David Cavender started in the same way he started with Alan Bates, suggesting this was all a long time ago, we're talking about mundane events and it's likely that memories of that time will be fallible.

Pam seemed circumspect and said her memory wasn't too bad.
David Cavender: "We are talking about everyday events, not something like a car crash."
PS: "If you're referring to the events of August 1999 it very much was like a car crash and I remember it vividly."
DC: "I think you might be referring to your husband's death."
PS: "Yes."

David Cavender says he understands it must have been a very difficult time, but he is talking about mundane things like signing documents.

PS: "Well let's see what documents you want to talk about and I'll see how well I remember them."

And so we began.

Pam was asked if she understood that her husband was operating under a contract. Pam said she guessed he must be, but she never saw one or saw him consulting it or heard him talking about it. It transpires that the Post Office has no record of Martin Stubbs ever having signed a Subpostmaster contract.

For such an important document the Subpostmasters' contract was beginning to assume the tantalising proportions of a snark.

Thoughts turned to Pam's contract.

DC: "You accept you were regulated by the SPMC (Subpostmasters' contract) for the purposes of this process."
PS: "I assumed I would be taking over the branch on the same terms as my husband ran the branch. I don’t recall having seen a contract."

Pam was questioned about her understanding of the agent (Subpostmaster)/principal (Post Office) relationship, though this line of questioning came to an abrupt end when Pam pointed out that for the first few months as Subpostmaster she was being taxed at source as an employee. This wasn't really helping the Post Office's argument that the Subpostmaster/Post Office relationship is in no way tortious or relational (see Day 1 blog post). The line of questioning was quickly dropped in favour of a discussion about contracts. Again.

Pam was asked what she signed signing a contract the day she became Subpostmaster - she maintains she did not see a Subpostmaster contract for the entire time she was a Subpostmaster. A really long exchange about what sort of documents Pam signed on the day after her husband's death or some weeks later goes on for about half an hour before being abandoned.

We eventually alight on Pam's suspension. "Were you surprised?" asked Mr Cavender.
Pam said she was "Astounded, staggered" and "as upset as I've ever been by anything in my life."

He asked if she ever thought she could be sacked without notice.

"No. Not really" said Pam.

The QC then asked why she didn't consult her contract to see if she could be suspended in the way she was. Pam told him it was a bit late by then, and she'd been locked out of her temporary Post Office without access to any of the documents.

The QC then points out when she wrote her resignation letter, some months after her suspension she mentions that she is giving her three months notice. The QC suggests this means she had consulted her contract.

Pam Stubbs is adamant she only put three months because the helpline told her they wouldn't let her Post Office be passed on to anyone else unless she gave three months notice.

Are you sure you didn't have a contract then? asks the QC. Pam says no.

And so ended the second day of the Common Issues trial in court 26 of the Rolls Building in London.

The court will reconvene on Monday when the rest of Pam Stubbs' evidence will be heard.

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