Pre-Horizon trial conference transcript and judgment

Here's something to get you in the mood for Monday.

On Thu 14 Feb I attended a pre-Trial conference at the High Court's Rolls Building (read my immediate notes here). This was essentially an administrative affair, save for an application by the Post Office to disregard the evidence of Ian Henderson, a director of Second Sight.

Ian Henderson was actively involved in the mediation scheme. He regularly took Second Sight's place on the Working Group (chaired by the former Appeal Court judge Sir Anthony Hooper) alongside the Post Office and the JFSA.

In 2015 he gave evidence to the parliamentary select committee inquiry into the Horizon mediation scheme whilst sitting next to Paula Vennells and Angela van den Bogerd (that is very much a transcript worth reading), and he gave Panorama an interview, also in 2015.

The Post Office's argument was that, in effect, Mr Henderson's evidence was too expert, and the judge should not set too much store by it as Mr Henderson clearly knew exactly what he was talking about.

If this seems like a nonsense, read the transcript below. In defence of the Post Office, there is a CPR (Civil Procedure Rule) which specifically bans more than one expert witness being used by each party (CPR 35.1, specific paragraph fans).

The Post Office's argument was that Mr Henderson is an expert witness, and as the claimants have already appointed an expert witness to look at Horizon (Jason Coyne), Mr Henderson's perspective should be ignored.

You may remember the short shrift Mr Justice Fraser gave the Post Office during their attempt to strike out vast amounts of witness evidence in the first trial. You can read that ruling here (it is highly entertaining), but here are a few choice quotes from the judge at the time:

"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 to keep evidence with which the defendant does not agree from being aired at all."

and

"When one considers the purpose of this Group Litigation, attempting to strike out such evidence now on the grounds of lack of relevance at this stage of the proceedings to the Common Issues seems to me to be rather puzzling. Mr Green QC [JFSA counsel]... submitted in his written skeleton that the 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."

and:

"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."

As you may have already concluded, the strike-out application didn't get very far.

So when it came to the attempt to have Mr Henderson's evidence disregarded the Post Office was at considerable pains to tell the judge this was not a strikeout application. In the words of the Post Office barrister, Tony de Garr Robinson:

"my Lord, the issue that arises in relation to Mr. Henderson is really extraordinary. Before I embark on my submissions I would like to be clear about what Post Office is not doing. Post Office is not seeking to exclude all his evidence. It just wants to limit his evidence to proper facts which can be properly dealt with within the confines of this time constrained trial. I am not saying that he cannot be called. Bearing in mind that your Lordship, I am sure, will be aware, bearing in mind what happened in the last strike out application, I cannot tell your Lordship how anxious and reluctant my clients are to be even addressing your Lordship on this question but they feel they have no choice."

Mr de Garr Robinson goes on to make a lot of (I thought pretty strong) arguments about why Mr Henderson's evidence should, if not be struck out, given very little credence by the court. The Post Office barrister held forth for some time, punctuated by some moments of humour provide by the judge:

"MR. de GARR ROBINSON: ...my learned friend says in his skeleton argument that does not apply in this case because of the Multiplex litigation, which I am sure is a case your Lordship is more familiar with than me, that huge piece of litigation that rumbled on for many years about the Wembley Stadium. My learned friend relies on....
MR. JUSTICE FRASER: I even know the number of different pieces of steel because someone told me that.
MR. de GARR ROBINSON: I was going to ask your Lordship whether you needed me to take you to ...
MR. JUSTICE FRASER: I really do not."

and:

"MR. de GARR ROBINSON: I should tell your Lordship it is a report to which Post Office has serious objections.
MR. JUSTICE FRASER: Post Office seems to have objections about a whole raft of things from time to time.
...
MR. de GARR ROBINSON: The submission I was making to your Lordship was
simply seeking to make it clear that the contents of the Second Sight report are hotly in issue.
MR. JUSTICE FRASER: I do know that.
MR. de GARR ROBINSON: I am grateful.
MR. JUSTICE FRASER: Thank you for reminding me."

Mr Green, the claimants' QC, then stood up and pointed out the Post Office had a bunch of people who were witnesses and experts and who could therefore be described as expert witnesses giving evidence for them, employing the deathless phrase "what is good for the goose is apparently not good for the gander."

Mr Justice Fraser agreed. Mr Henderson will be heard in court during the forthcoming Horizon trial.

I have posted the transcript and the judgment (in the middle of the transcript, in bold) below.

There is loads in the transcript worth reading. I much prefer them to wading through legal documents as people are forced to communicate in a way that makes sense to the ear. And they can be challenged on their arguments, which is what happens below.

Right at the very bottom I get a mention from the judge by name, which, as I said at the time, woke me up bit. It means I will get daily unperfected transcripts of proceedings (usually between 6 and 8pm on the day they are created) which I will attempt to post up the same evening as the trial is progressing.

Transcript follows:

 THE POST OFFICE GROUP LITIGATION

Case No: HQ16X01238, HQ17X02637, HQ17X04248

  

 IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

  Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL

Date of hearing: Thursday, 14th February 2019 Start Time: 10.31 Finish Time: 11.56

                Before:

MR. JUSTICE FRASER

ALAN BATES & OTHERS 

- and -

POST OFFICE LTD.

Page Count: 30 Word Count: 11,864

Number of Folios: 165

Claimant Defendant

   MR. PATRICK GREEN, QC (instructed by Freeths LLP) for the Claimant MR. ANTHONY de GARR ROBINSON, QC and MR. OWAIN DRAPER

(instructed by Womble Bond Dickinson LLP) for the Defendants 

PROCEEDINGS

---------------------

 MR. GREEN: May it please, your Lordship, my learned friend Mr. de Garr Robinson and Mr. Owain Draper appear for the Post Office this time. The suggested agenda I sent through to the court, which your Lordship may have loose ----
MR. JUSTICE FRASER: I have it here.
MR. GREEN: There are only eight items there of which the last three, I think, are hopefully
uncontroversial. There are some differences on timetable and differences on one point of evidence, my Lord, so it really falls in a very narrow compass. The key issue on the evidence is the evidence of Mr. Henderson and that is a six-page witness statement double-spaced where the defendant accepts he gives some evidence of fact but objects to – I am so sorry, it is in volume 2 of 5, tab 5. I think all the other witness statements are one-and-a-half line spaced, his is two-line spaced and only goes on for six pages with a signature on the seventh page. Your Lordship will see at page 1, paragraph 1, he has an introduction, and over the page he explains that he is a director of Second Sight, he was appointed ----
MR. JUSTICE FRASER: I have read it.
MR. GREEN: You have read it, so your Lordship is familiar with what he says. Your
Lordship probably noted that at paragraph 2.2 he talks about a meeting he had with Gareth Jenkins, the Fujitsu lead engineer, and what he investigated about remote access thereafter. At 2.4, just so your Lordship has an example of what is complained about, over the page on page 4, the defendant does not complain about the second sentence in 2.4: “Mr. Jenkins provided me with some sample XML data shortly after our meeting and I subsequently have been able to reverse engineer,” does not complain about that but does complain about the first sentence: “My view was that the key to understand transactions was to be provided with access to raw transaction data known as XML reports.” That gives your Lordship an example of what is complained about; similarly, the reference to “my analysis at the time”, at 2.5, and the word “concern”.
MR. de GARR ROBINSON: I wonder if it would be a good idea for me to take your Lordship through this because my learned friend’s understanding of what I object to may not be the same as mine.
MR. JUSTICE FRASER: All right. Bear with me one second. Mr. Green, I have actually read this statement in quite a lot of detail.
 MR. GREEN: I am grateful.
MR. JUSTICE FRASER: I am going to hear from Mr. de Garr Robinson in however much
detail he wants because he has asked me for a ruling on it. You do not need to read that. MR. GREEN: I am most grateful. I was only trying to highlight a couple of things.
MR. JUSTICE FRASER: As you pointed out – and I have read all of the statements – it is not
a long statement. I have actually read this one twice because it is a particular focus of what Mr. de Garr Robinson wants to do, and I agree we should deal with this point first. It may or may not have an impact on trial timetabling anyway but it seems to be, possibly, subject to something that I am going to tell you which will be about the way the experts are going to be dealt with, this might be the only controversial thing today. I will deal with this first.
MR. GREEN: I am grateful.
MR. JUSTICE FRASER: Mr. de Garr Robinson.
MR. de GARR ROBINSON: My Lord, thank you.
MR. JUSTICE FRASER: Am I right that this may well turn out to be the only contentious
thing today?
MR. de GARR ROBINSON: Two points of particular importance on this side of the court are
Mr. Henderson, the proper scope of his evidence, and also how much time we are allotted for the cross-examination of Mr. Coyne, the IT expert called by the claimants. That is a matter that we regard as extremely important.
MR. JUSTICE FRASER: I know. You are going to get possibly less time than you expect but more time than you probably need, but we will deal with that separately. So, Mr. Henderson, fire away.
MR. de GARR ROBINSON: Mr. Henderson, my Lord, the issue that arises in relation to Mr. Henderson is really extraordinary. Before I embark on my submissions I would like to be clear about what Post Office is not doing. Post Office is not seeking to exclude all his evidence. It just wants to limit his evidence to proper facts which can be properly dealt with within the confines of this time constrained trial. I am not saying that he cannot be called. Bearing in mind that your Lordship, I am sure, will be aware, bearing in mind what happened in the last strike out application, I cannot tell your Lordship how anxious and reluctant my clients are to be even addressing your Lordship on this question but they feel they have no choice. On several occasions my clients have invited the claimants to identify proper factual propositions that are relevant for which the statement can properly be relied upon with a view to agreeing those facts, but that has all been rebuffed. So, that is why we are here today.
What the claimants are saying is that they are entitled to adduce both factual and expert evidence from Mr. Henderson. Your Lordship will see that from paragraph 37.3 of my learned friend’s skeleton.
Could I ask your Lordship to imagine this situation. There is an IT dispute raising expert issues. Permission is given for each side to call one expert on IT issues. The experts on both sides review all the material, they identify the decisions, the opinions that they have, having had access to anything they want to see, including expert reports deployed in a previous trial raising a similar issue. So, the experts reach their conclusions on the strengths and weaknesses of the IT system, whatever the issue may be. The claimant is not satisfied with the report from his expert. He wants to rely on the report given by the original expert in the original hearing. Obviously, he cannot call him as an expert because he only has permission for one expert and he has already exercised that permission. So, the question arises, can he call the other expert on the basis that he has a few facts to speak to and then use the fact that he has a few facts to speak to, to incorporate by reference some or all of the opinions that the other expert gave in the previous trial so that he can then bolster his case, getting the expert to recast his opinions perhaps as facts, and so on.
My Lord, I say that my submission is, obviously, he cannot but that is what the claimants have done with Prof. McLachlan, it is exactly what they have done with Prof. McLachlan.
MR. JUSTICE FRASER: He is out of the picture now?
MR. de GARR ROBINSON: Your Lordship says that but ----
MR. JUSTICE FRASER: He is not being called.
MR. de GARR ROBINSON: I thought that was the position but I do have a small concern
about paragraphs 7 and 8 of my learned friend’s skeleton argument which does not say
that he will not be called. It says that it is likely he will not be called. MR. JUSTICE FRASER: I had understood ----
MR. GREEN: My Lord, if it helps, we are not going to call him.
MR. JUSTICE FRASER: You are not.
MR. de GARR ROBINSON: That is very helpful. I was going to ask for clarification.
MR. JUSTICE FRASER: My understanding is he is definitely not being called but it might be
I was not understanding the phraseology in that skeleton.
MR. GREEN: That was my understanding as well until I saw the skeleton and saw the ---- MR. JUSTICE FRASER: That is confirmed. If that position changes Mr. Green is actually
going to make an application explaining why but for the moment he is out the picture. MR. de GARR ROBINSON: My Lord, let’s continue with my hypothetical situation because,
of course, it does not just apply to an IT expert, it could apply to a forensic accountant expert as well. It is worth reminding ourselves why the claimant cannot call the expert. If I could ask your Lordship to look very quickly at the White Book, Vol. 1, page 1126. These are old adversaries to all of us. CPR 35.1: “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.” So, there is a general principle that the court does not let expert evidence in unless it is required and if we go forward to page 1129, again all these are definitions of an expert as someone who has been instructed to give or prepare expert evidence. We know that expert evidence means opinion evidence.
Going forward to 35.4(1): “No party may call an expert or put in evidence an expert’s report without the court’s permission.” The combination of those rules is clear, absent court permission to give expert evidence, no such evidence can be given. It is how one controls the proceedings in court and keeps trials within a manageable scale.
Now, my learned friend says in his skeleton argument that does not apply in this case because of the Multiplex litigation, which I am sure is a case your Lordship is more familiar with than me, that huge piece of litigation that rumbled on for many years about the Wembley Stadium. My learned friend relies on ----
MR. JUSTICE FRASER: I even know the number of different pieces of steel because someone told me that.
MR. de GARR ROBINSON: I was going to ask your Lordship whether you needed me to take you to ----
MR. JUSTICE FRASER: I really do not.

 MR. de GARR ROBINSON: Your Lordship will recall the principles that are articulated in that particular decision. Mr. Taylor, who gave factual evidence, he was there, he was involved in many of the decisions, he knew why they were made, he was able to explain why they were good decisions or why they were bad decisions, he was a relevant witness who had an involvement in the central facts in dispute. He also had views. He was a professional man who knew what was going on.
MR. JUSTICE FRASER: It happens a lot in the Technology and Construction Court business.
MR. de GARR ROBINSON: As indeed is said in the judgment. What was fashioned in that case, and I understand it is referred to, it has become a locus classicus and it is referred to quite a lot because this problem does arise quite a lot, particularly in TCC cases, is a principle that although CPR 35.1 is fine, there is an exception. It is where you have someone who was a witness to the events in question is able to speak to those events, explain why they happened and give his views on whether it was right that they should have happened or not. It is an exception, a very special kind of exception, to the general prohibition on the giving of any expert evidence at all.
My Lord, as soon as one articulates that principle one sees quite clearly that Mr. Henderson is a country mile away from it. Mr. Henderson was not a witness in any of the events in question. He was brought in ex post facto as a professional to undertake an inquiry and report. What he speaks to in his witness statement, with the exception of talking about a meeting and a couple of other relatively small points, he describes himself as having established, having reviewed the relevant documents. He is explaining the conclusions he came to having reviewed certain evidence. By the way, he does not identify the documents he reviewed so it is not a case where he can be cross- examined on that in a very effective way.
The difference between Mr. Henderson and Mr. Taylor could not be greater and, indeed, my learned friend’s attempt to invoke the Multiplex decision itself demonstrates how far Mr. Henderson is from it. In my submission, that is too obvious for words. I apprehend my learned friend will not suggest there is another way that one can get the evidence in, namely, simply by exhibiting the relevant reports to Mr. Henderson’s witness statements. There is a case in the bundle, New Media Distribution v Kagalovsky which makes it clear that cannot be done but unless my learned friend is going to insist that it can be done outside the Multiplex situation, I am not proposing to address your Lordship on it, unless your Lordship would like me to.
MR. JUSTICE FRASER: No, I do not think so. I have read all the cases. Thank you.
MR. de GARR ROBINSON: In my hypothetical situation, it is obvious that the second expert
cannot give his evidence of his expert views and, as I say, that no doubt explains the position of Mr. McLachlan. The claimants say that Mr. Henderson is different but I ask forensically why do they say that. Perhaps we could now look at his witness statement. Your Lordship, I think, has it there behind divider 5. Start at paragraph 1.2. In paragraph 1.1 he says he is giving factual evidence, which I say is manifestly wrong.
MR. JUSTICE FRASER: You say it is expert evidence, I think.
MR. de GARR ROBINSON: Most of it is. It is evidence of his opinions. That is what
constitutes expert evidence. At paragraph 1.2 he says: “I am a director of Second Sight. My knowledge of the Horizon system derives from the fact that Second Sight was appointed by Post Office to conduct limited scope review into alleged problems.” So, already we have one major point of distinction between Mr. Taylor and Mr. Henderson. He is an outsider coming in doing a review. Then what he does is he introduces into the record a number of reports that he produced and those reports run to over 100 pages. They are quite meaty lengthy documents.
In paragraph 1.3 he describes the termination, which is a fact, blissfully an irrelevant one. At paragraph 1.4 he says something about the way that documents were provided to him, which is a fact but again blissfully irrelevant. Then, at paragraph 1.5, he talks about a confidentiality agreement he signed, also a fact and, my Lord, also blissfully irrelevant. To be fair, he has not claimed they are relevant because he only gets to Horizon issues in paragraph 2.
At paragraph 2.1 a further mark of distinction between Mr. Taylor and Mr. Henderson: “As a consequence of my work which I have been instructed to undertake as to the operation of the Horizon system, there are certain matters within my knowledge which I consider are relevant.” That is an assertion that he did work as an expert and came to some conclusions that were relevant. That is an almost perfect example of what constitutes expert evidence.
 Then, as my learned friend says, he refers to a meeting at paragraph 2.2 that is a fact. Then at paragraph 2.3 he describes trying to get some documents, also a fact, I would say completely irrelevant to the Horizon issues but I do accept that that is a description of fact. He comes to issues one and four in paragraph 2.4. He expresses his views. He expresses his view that the key to understanding transactions within Horizon was to be provided with access to the raw transaction data and he talks about Jenkins providing that data to him. He also talks about his reverse engineering. My Lord, whether his first sentence is opinion or fact evidence is really neither here nor there. The important point is none of this has any conceivable relevance to the Horizon issues.
Then he describes in paragraph 2.5: “My analysis of the sample data,” again, doing work as an expert, and then he says: “There are a number of matters which gave rise to concern.” He is not stating an opinion. He is stating a concern. That is not even as good as an opinion. It is working towards an opinion.
At paragraph 2.6, one really does begin to wonder why he is giving this evidence. He says: “Second Sight’s instruction was terminated before I could reach a conclusion as to whether these issues were the result of the Horizon system.”
So, paragraphs 2.5 and 2.6 are concerns that did not even give rise to a conclusion and I do ask forensically what is that evidence of, how does that help your Lordship decide any of the Horizon issues.
Then he says in 2.7: “I was also aware there were problems with ATMs,” which refer to the briefing report, part two; that is a lengthy report. My Lord, here we are, first of all, trying to incorporate by reference views expressed, views and opinions expressed in the report they did at the time.
He says, over the page: “There appeared to be an inconsistency between the information available on the Horizon system and that provided by the third party, which appeared to cause a shortfall.” Clearly, the use of the word “appeared” shows he is not speaking to something within his own knowledge. He is explaining an opinion, a judgement he formed on the basis of an investigation he undertook on the basis of documents that he does not identify. That is what experts do.
Then paragraph 2.8: “As a result of reviewing the documents provided to me by sub-postmasters and Post Office,” again we are not told which particular documents he has in mind. “I established that in the period prior to 2004 the accounting by Post Office for foreign currency transactions was fundamentally flawed...” Stopping there, “I established”, it is not “I saw this happening,” it is not a witness speaking to what he was involved in and saw at the time, “I established” means, actually, it is another word for “I concluded”, “I formed the opinion”. That is the clearest possible example of an expert opinion and if further support is needed for that one only need go to the next sentence: “This issue was covered in more detail in our briefing report part two.” Again he has incorporated by reference the meaty report that was done at the time. I should tell your Lordship it is a report to which Post Office has serious objections.
MR. JUSTICE FRASER: Post Office seems to have objections about a whole raft of things from time to time.
MR. de GARR ROBINSON: My Lord, I am not sure that is a fair observation but if you would like me to address it I am perfectly happy to.
MR. JUSTICE FRASER: No, we will come on to that at the end. Your submission is that he refers to a report, which I think is a contemporaneous report produced by Second Sight, to which you have objections.
MR. de GARR ROBINSON: Yes, the important point is your Lordship should not assume that what is in the Second Sight report is somehow not contentious.
MR. JUSTICE FRASER: I think that would be a fanciful assumption, would it not? MR. de GARR ROBINSON: Very good.
MR. JUSTICE FRASER: That is the subject matter of the litigation or a large part of the
subject matter of the litigation.
MR. de GARR ROBINSON: Yes. The submission I was making to your Lordship was
simply seeking to make it clear that the contents of the Second Sight report are hotly in
issue.
MR. JUSTICE FRASER: I do know that.
MR. de GARR ROBINSON: I am grateful.
MR. JUSTICE FRASER: Thank you for reminding me.
MR. de GARR ROBINSON: The significance, of course, is that if reliance is now placed on
the underlying reports, why would there not then have to be arguments about whether a good job was done by Second Sight when it produced them. Why would this cross-examination – my learned friend says this is only a six-page witness statement. It is not. It has incorporated by reference a large amount of reports which involved a large amount of work and why would it not be necessary, I ask forensically, for Post Office to investigate the quality of the work that was done. It becomes a trial of the quality of the Second Sight investigation. That is not what this Horizon issue trial has been designed to decide. It is a side issue.
Then, my Lord, paragraph 2.11, he says again: “As a result of reviewing the documents provided to me by sub-postmasters and by POL I established that in a significant number of cases a branch’s Horizon system would get out of sync with the quite separate Camelot system.” Again, an opinion based upon an armchair analysis. I do not use the word “armchair” in a deprecatory way. I am simply seeking to make it clear he is not a witness observing this happening. He is someone looking at the documents after the event and forming a professional opinion.
To make that clear, your Lordship will see in paragraph 2.13, at the end, this issue was also covered in Second Sight’s report, part two, again the incorporating by reference the part two report.
The same point in paragraph 2.14: “As a result of the work I established that it could be problematic for sub-postmasters to determine the root causes,” and coupled with 2.16: “This issue was also covered in the briefing report, part two.” So, this is not, my Lord, a six-page document which simply says some very simple things. It is a six- page document which incorporates by reference very substantial documents and raises issues about an enormous amount of work that was done many years ago. That, as I say and I respectfully submit, is not what the Horizon issues trial is for.
This is nowhere near the special Multiplex type situation. We are in Part 35 territory.
MR. JUSTICE FRASER: Part 35 applies across the board.
MR. de GARR ROBINSON: So, even in a Multiplex case it would be necessary for ----
MR. JUSTICE FRASER: Multiplex correctly considered does not disapply Part 35. Part 35 is
part of the ----
MR. de GARR ROBINSON: So leave is required. My Lord, I stand corrected. I had not
appreciated that was the position. I am grateful for your clarification.
MR. JUSTICE FRASER: The TCC does not have its own separate extraneous non-CPR practice.
MR. de GARR ROBINSON: It makes the current situation even stronger. My learned friend has not sought and is not seeking permission under Part 35 for Mr. Henderson to be able to give expert evidence. On the basis of what your Lordship has just told me, that is an end to the matter, in my submission. If this did not matter in a practical sense, I would not be addressing your Lordship on it today, but it matters a great deal. First of all, it puts Post Office in an invidious position. This opinion evidence having been adduced, if Post Office does not cross-examine Mr. Henderson on these opinions, it will be said, first of all, that it has not put its case to a witness as is required by the rules; secondly, it will be said that Mr. Henderson’s evidence is unchallenged.
MR. JUSTICE FRASER: Each of those submissions just puts those concerns unlikely in any time to trial to get much traction.
MR. de GARR ROBINSON: My Lord, in my submission, if Post Office wants to challenge – if there is going to be reliance on the value of the opinions expressed in Mr. Henderson’s witness statement and the professionalism with which they were produced, there will then be a debate between the cross-examiner and Mr. Henderson as to the merit of his opinions. He will then seek to justify them. That cross-examination will itself give him a licence to go much further into the matter and say much more than in his six pages. He will go back into his reports. He will talk about meetings he had with people. He will mention documents that are not very clearly identified but he will mention documents and the cross-examiner will find it very difficult to know what to deal with, unless the trial bundles are extended perhaps by 100 or so documents, containing documents relating to the investigation that was undertaken by Second Sight six or seven years ago.
My Lord, I do ask rhetorically what would be the point of lengthening the trial bundle by 100 documents or so for the purposes of having a proper debate about the quality of the work and the value of the conclusions that were performed by Mr. Henderson at the time of the Second Sight reports. Against that backdrop, it is important that I remind your Lordship of what this Horizon issues trial is supposed to be about.
Could I ask your Lordship to go to the transcripts and remind your Lordship of what you said on, I think, 22nd February. It is in the case management bundle, volume three, part two, tab 11, page 168 of the bundle.
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: My Lord, if I could pick it up at letter C, where you said: “It is
very unusual in case management to find oneself having constantly to try and put either one or other party back on track for cost effective resolution of serious disputes. I reminded myself again by reference to the actual transcript of what I said last time, although I had a pretty clear recollection, that what I was going to be doing in March was to deal with expert issues that were present on the pleadings concerning Horizon which I described generically as the next big issue. I wanted the parties to agree or each propose an isolated number of issues on the pleadings related to Horizon that would involve expert evidence but not evidence of individual cases. I obviously was not sufficiently clear so I am going to make it clear now. My intention is in March to resolve the Horizon issues that reserve the following three criteria: Issues regarding Horizon system that arise on the pleadings, that is the first one; second, that can be resolved on expert evidence; third, that do not require evidence of fact or if they do require the very barest evidence of fact.”
My Lord, evidence of fact was to be kept to a minimum, one was to focus on the expert evidence and what your Lordship meant, if I may suggest this, by “expert evidence”, was the evidence of the IT experts for which your Lordship had already given permission at a previous hearing.
MR. JUSTICE FRASER: Just remind me, how many witness statements of fact have the Post Office served for this trial?
MR. de GARR ROBINSON: My Lord, I think it is about 12. I would have to remind myself. I should tell your Lordship why that is, actually. If your Lordship read the correspondence that was attached to my skeleton, your Lordship will recall that when the first round of evidence was served Post Office found a significant number of sub- postmaster witnesses/claimant witnesses giving evidence about their individual experiences, which is precisely what your Lordship said should not happen. A significant proportion of the evidence that is now given by Post Office meets that evidence, the decision having been made not to apply to strike it out in the light of what
had happened at the previous strike-out application.
MR. JUSTICE FRASER: Or raise it with the court and that would have been an alternative,
would it not, as case management.
MR. de GARR ROBINSON: I can tell your Lordship that a huge a mount of anxious thought
went into that question. It was in the aftermath of your Lordship’s strike-out judgment, the reply that came from Freeths was, “In the light of the strike-out judgment we are not changing anything, we are not changing course.” Given the anxiety, frankly, the fifth on this on the part of Post Office ----
MR. JUSTICE FRASER: Why ----
MR. de GARR ROBINSON: Post Office heard what your Lordship said in that judgment
loud and clear.
MR. JUSTICE FRASER: What I said, Mr. de Garr Robinson, in that judgment, I thought,
which was obviously reserved and drafted, I applied the test set down most usefully by Mann J about striking out evidence of fact and what approach one takes to relevance. You have 12 witnesses of fact for, let’s call it, round two of Horizon. Mr. Green has umpteen witnesses of fact. Most of the witness statements actually are relatively narrow in compass. There is obviously more fact than one would necessarily expect with the phrase “limited evidence of fact”, but I think between you, you are agreed that it can be dealt with in a reasonable number of days, and the only real issue appears to be, given you each have an expert, how Mr. Henderson’s evidence is to be treated if it is to be treated at all, that is really what it comes down to. You say he is an expert by the back door.
MR. de GARR ROBINSON: Yes, I say a large proportion of his evidence is back door expert evidence and I say, given the nature of the claims that he makes, if it were to be properly tested, it would take a considerable period of time and there is not time in the trial timetable. My Lord, I also say I should not have to be testing it. This trial is about Horizon issues. It is not about the adequacy or otherwise of the Second Sight investigative process.
MR. JUSTICE FRASER: That is a very good point. It is not about the adequacy of Second Sight, it is about the specific list of Horizon issues, which I think as at the date of the transcript you have just read out had not been refined and finalised, but now has.
MR. de GARR ROBINSON: Yes. I am grateful that your Lordship thinks it is a good point. My submission is that that point ----
MR. JUSTICE FRASER: What the trial is about, that is a very good point; it is to determine the Horizon issues.
MR. de GARR ROBINSON: Yes, it is not to determine whether some views that Mr. Henderson formed six years ago are right or not and whether he formed them on the right basis. That is not what this case is about. If Post Office is required, because this evidence is put up in front of it, if it is required to address those issues, that will take a significant amount of time. It will, in my submission, be a fundamental distraction. It is not simply that as a matter of law and practice this evidence is not admissible. It is not simply that. It is that it has a practical application in the context of this case. It puts Post Office on the horns of a terrible dilemma. It does not know what to do. If it leaves it, it is at risk of being criticised. If it engages ----
MR. JUSTICE FRASER: When you say at risk of being criticised, you mean the risk of the criticism which you say Mr. Green might sensibly be allowed to make, which is that it has not been challenged.
MR. de GARR ROBINSON: Yes, and Mr. Green would – even if he does not take that procedural point, that fundamental point of procedure in English litigation, even if he does not take that point, he can say these claims are made and they are not tested. It would not be right for your Lordship to dismiss them. On the basis of what is being said, it is only right that your Lordship should place great store by them and given that they are expert views for which no permission has been given, I do respectfully submit that it would be wrong to allow Mr. Green even to make those kinds of statements. That is the first point, the horns of a dilemma point.
The second point is the timetable point, which is that if this evidence is to be tested, it will take a considerable period of time.
My Lord, the third point is this is not a strike-out application so much as an application for a ruling from your Lordship as to what should properly be the scope of investigation at the Horizon issues trial. We are in Part 32 territory as much as anything else. Perhaps we can have a very quick look at that. It is the White Book at page 1027. This is the well-known provision. Your Lordship will be much more familiar with it than me, I am sure: “The court may control the evidence by giving directions as to the issues upon which it requires evidence, the nature of the evidence which it requires to decide those issues, and the way the evidence is placed before the court.” Then sub-rule (2) makes it clear that that involves the power to exclude admissible evidence.
In (3): “The court may limit cross-examination.” What I am asking from your Lordship is a ruling, an indication, a direction, which avoids the need for my clients to have to cross-examine Mr. Henderson on these matters of opinion. It would have preferred there to have been an arrangement under which Mr. Henderson’s factual claims were properly identified so that they could be either agreed or addressed appropriately, and probably very quickly, but given that the claimants do not want to cooperate in playing that game – I should not say the word “game”, that is too flippant, but they do not want to cooperate in undertaking that exercise – I do ask for a ruling, a direction of some sort which gives Post Office the protection, which, in my submission, it is entitled to, against the adverse consequences that I have indicated to your Lordship.
MR. JUSTICE FRASER: Yes, those consequences, I think, maybe I am wrong so tell me if I am wrong, the adverse consequences with which you are concerned are twofold, one is a more formal adverse consequence as it might be said you have not challenged the content of the Second Sight reports and the other is, I suppose it could be said, a more prejudicial detrimental consequence in relation to timetabling and not knowing what it is you should be asking questions about. Is that right?
MR. de GARR ROBINSON: Perhaps I could say it is three points.
MR. JUSTICE FRASER: Tell me what they are.
MR. de GARR ROBINSON: The first one is the one that your Lordship adverted to ----
MR. JUSTICE FRASER: -- which is a formal one that it has been challenged.
MR. de GARR ROBINSON: Yes. I would say substantive.
MR. JUSTICE FRASER: Okay, let’s say substantive.
MR. de GARR ROBINSON: It is substantive, it gives the claimant a substantive objection to
Post Office’s ability to object to that evidence because it was not properly challenged.
 The second point is related to the first but I would submit it is separate, that is, it allows
the claimants to rely upon those opinions as good evidence of what they are ---- MR. JUSTICE FRASER: The opinion is in the Second Sight reports.
MR. de GARR ROBINSON: Yes, to be incorporated by reference. These are opinions of
professional people and they have not been tested. Your Lordship should accept them at
face value, and there is no basis for your Lordship to ----
MR. JUSTICE FRASER: You are saying that that is how it would be put.
MR. de GARR ROBINSON: Yes. I am sure that is how it would be put. There is the third
point that your Lordship adverted to.
MR. JUSTICE FRASER: Really, two is a subset of one.
MR. de GARR ROBINSON: They are related but they are conceptually separate.
MR. JUSTICE FRASER: Then the third one is the timetabling point.
MR. de GARR ROBINSON: Yes, if my clients cross-examine, it will take a disproportionate
time and it would be cross-examination about something that the Horizon trial is not
about.
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: Unless I can assist your Lordship further on that point.... MR. JUSTICE FRASER: Just remind me where in the multiple files I have I find the actual
Horizon issues themselves?
MR. de GARR ROBINSON: My Lord, that is in the case management bundle, volume 2, and
it is behind ----
MR. JUSTICE FRASER: Volume 2 of the ----
MR. de GARR ROBINSON: Case management, so it is volume 2, awards and judgments.
Does your Lordship have the case management, not the hearing bundle?
MR. JUSTICE FRASER: I do. Just give me one second. (Pause) Whereabouts in here? MR. de GARR ROBINSON: It is tab 9.9. It may be 9.4. I am so sorry.
MR. GREEN: It is 9.4, I think.
MR. de GARR ROBINSON: My learned friend is quite right. It is about three pages in.
Your Lordship will see at the top: “I just cannot help being a barrack room lawyer,” as your Lordship will see the indications about fact, limited evidence of fact.
MR. JUSTICE FRASER: Yes. (Pause) Mr. Green, I am going to make certain observations to you, which really are for the purposes of both of you, and that you might find most useful now that you have stood up. In a way, it is possibly, I suppose, a misunderstanding as to the way time-limited trials work. I know this is a QB case but it is being tried in this building using many of the trial management procedures that we use in this building, not only in the TCC but the other specialist courts. In any time-limited trial any party would get pretty short shrift if they tried to make a formal point if a particular subject had not been challenged within the time available. Therefore, it occurs to me that at least part of the Post Office’s concern arises out of a misapprehension of your technical ability to do that. Are you aware of your technical inability to manage such an objective?
MR. GREEN: My Lord, I hope it was clear from the last trial as well, we did not take any point about ----
MR. JUSTICE FRASER: There is no point that can be taken about time limits ----
MR. GREEN: Because it is a time-limited trial you have to challenge what you can. We had
a lot of witnesses. We had many witnesses to get through and we did them, hopefully, reasonably efficiently within the precisely allotted time finishing a little bit early. We would not have been able to do that had we not appreciated that point. My Lord, I am not going to take that point. I do not take that point. I have not come here this morning thinking I would.
MR. JUSTICE FRASER: All right.
MR. GREEN: Can I make just two points?
MR. JUSTICE FRASER: Yes.
MR. GREEN: There are two massive points.
MR. JUSTICE FRASER: Two massive points?
MR. GREEN: Massive points, large, prominent points. The first one is that what is good for
the goose is apparently not good for the gander. There is a massive asymmetry between the claimant’s side and the Post Office side, not one your Lordship has heard about lots of times before, but that plus (unclear). If your Lordship looks in volume 2 ----
MR. JUSTICE FRASER: Are you about to take me to a large degree of supplementary evidence of fact which comments on Mr. Henderson’s witness statements?
MR. GREEN: I was not actually going to do that although there is that.
MR. JUSTICE FRASER: Tell me where you are going to take me?
MR. GREEN: If your Lordship looks just very briefly in tab 7, it is the witness statement of
Mr. Godeseth.
MR. JUSTICE FRASER: Tab 7 of....
MR. GREEN: Sorry, it is volume 2 of 5 of the hearing bundle for today, and it is in the
second part, it is B.
MR. JUSTICE FRASER: Hold on a second. (Pause) Volume 2 of 5, which tab?
MR. GREEN: It is in tab – you have to go to section B, which is the defendant’s witness
statements, the 12 filed by the defendant.
MR. JUSTICE FRASER: I do not have them where they should be.
MR. GREEN: There should be a second tab 7, about halfway back.
MR. JUSTICE FRASER: Actually, I do have them. I am sorry. Right, so the second tab 7;
yes.
MR. GREEN: The second tab 7 is Mr. Godeseth’s statement. He has, in fact, two and this is
his second witness statement. In that he explains, albeit in relation initially to Prof. McLachlan’s witness statement, on page 3, at paragraph 11, that he has made reference to an email from Mr. Jenkins of Fujitsu.
MR. JUSTICE FRASER: Which paragraph are you looking at?
MR. GREEN: Paragraph 11.
MR. JUSTICE FRASER: Yes.
MR. GREEN: He says in brackets, he explains: “...who acted as Post Office’s expert witness
in the Seema Misra case.” That was the case in which Prof. McLachlan was an expert
witness.
MR. JUSTICE FRASER: Yes. I know about that.
MR. GREEN: Indeed.
MR. JUSTICE FRASER: You are not calling him, are you?
MR. GREEN: No, we are not calling him. The point is that Mr. Jenkins was Post Office’s
expert witness about how the system worked in the Seema Misra case. If your Lordship then looks at what then follows, there is a treatment of the individual known bugs that Mr. Coyne is reporting on, so Calendar Square, these are actually front and centre main fighting ground for the Horizon trial, so Calendar Square is immediately below, and you then get some of the other bugs, later on, payments mismatches on page 9, dealing in this section, suspense account, local suspense is page 12, Delmellington bug is page 14.
MR. JUSTICE FRASER: What you are saying is he is a witness of fact, is being called as a witness of fact and he gives details which requires technical knowledge.
MR. GREEN: Yes.
MR. JUSTICE FRASER: Is that the short point?
MR. GREEN: It is much worse than that.
MR. JUSTICE FRASER: No, but is that the first and short point, is that why you are showing
me this?
MR. GREEN: It is why I am showing you but the point I am making is that your Lordship
will see at page 4, top of the page, “discussed it with Gareth Jenkins and my
understanding is”.
MR. JUSTICE FRASER: Yes.
MR. GREEN: At 13.5, “From speaking to Gareth Jenkins.” At 13.7, “I understand from
Gareth Jenkins”. At 13.8, “I also understand from Gareth”. At 14, “I understand from Mr. Jenkins”. At paragraph 36, on page 10, “I understand from Gareth Jenkins”. Paragraph 43, on page 11, etcetera, and so it goes on. It is replete not only with the type of evidence which we minutely adduced in Mr. Henderson’s statement, it is not only the same because he was an expert, precisely the same, but they are not calling him.
MR. JUSTICE FRASER: That is a different point.
MR. GREEN: No, no, my Lord, the point is if they were calling Gareth Jenkins, I would be
able to say what Mr. Jenkins observed in 2012 ----
MR. JUSTICE FRASER: You may or not but they are not calling – I thought one of your
points was they are not calling ----
MR. GREEN: That is a separate point.
MR. JUSTICE FRASER: Rather than sort of widen it to, if I might say so, slightly wider
party political objections, keep it narrowly focused on what Mr. de Garr Robinson is seeking today, which is a declaration or a ruling, some sort of indication under CPR Part 32.
MR. JUSTICE FRASER: Your point, as I understand it, is that very similar evidence is given purportedly as evidence backed by Post Office’s witnesses, is that the short point?
MR. GREEN: Yes, we respectfully say that ----
MR. JUSTICE FRASER: Whether Mr. Jenkins is called or not is neither here nor there. MR. GREEN: Not quite so.
MR. JUSTICE FRASER: No, Mr. Green, quite so. Whether Mr. Jenkins is called or not is
not germane to this point.
MR. GREEN: To that point, no. My learned friend’s submission was that he would have
trouble challenging the basis of what Mr. Henderson said.
MR. JUSTICE FRASER: Mr. de Garr Robinson’s wider concern is that this trial is not about
the accuracy or correctness of the conclusions in the Second Sight report and he should not be required to delve into that area by proxy through you calling Mr. Henderson purportedly as a witness of fact. That is really what it boils down to.
MR. GREEN: That is what he is saying. I understand.
MR. JUSTICE FRASER: Whether Mr. Jenkins pops up stage left does not make any
difference to that submission.
MR. GREEN: It is only by comparison with my learned friend’s suggestion that he is going
to be in difficulties challenging a witness who is there to be cross-examined ---- MR. JUSTICE FRASER: Well....
MR. GREEN: -- when I have to challenge someone who is not even there.
MR. JUSTICE FRASER: I am not sure that submission is even on the point, with respect.
That is not the point.
MR. GREEN: The factual point, I agree, is separate.
MR. JUSTICE FRASER: Whether it is factual or factual/legal ----
MR. GREEN: -- whether it is ----
MR. JUSTICE FRASER: Whether we have Mr. Jenkins or not just does not affect this at all.
It does not as a matter of analysis.
MR. GREEN: My Lord, the only observation I would say is that if it is a factor my learned
friend relies on, it is difficult for him to challenge Mr. Henderson when he is in the witness box ----
MR. JUSTICE FRASER: I think part of Mr. de Garr Robinson’s technical objections as to admissibility and the application of Part 35 is that it would be disproportionate and effectively a group of side issues, if he were to have to challenge the Second Sight report through Mr. Henderson, not that he cannot.
MR. GREEN: Yes, my Lord, but we respectfully say what he has focused on in the report, what Mr. de Garr Robinson’s experts commented on and so forth, and what the witnesses have responded to because Angela Van Den Bogerd has responded extensively to Mr. Henderson as your Lordship knows, falls within a very narrow compass and the difficulty we have is, yes, we do have an expert who has looked at the system in 2018, but your Lordship is concerned with cases that span back a large number of years.
MR. JUSTICE FRASER: Yes, but you are not calling her as an expert, are you?
MR. GREEN: No, not at all. We are adducing evidence about what he saw and found when he looked at the time in 2012, which we are not otherwise able to adduce, whereas Post
Office not only has available to it witnesses throughout the period as we can see but in that period in 2012 actually was engaged in looking in detail and spending many millions of pounds in looking in detail at these issues at that time. My Lord, I accept that it is really the top of the iceberg that we get a glimpse of from 2012, where Post Office sees the whole thing, but that is the context in which that limited evidence we respectfully say cannot sensibly be passed from the factual evidence that he gives; it is all part and parcel. We have confidence that the court will be able to give such weight to it as is appropriate.
MR. JUSTICE FRASER: All right.
MR. de GARR ROBINSON: Your Lordship may not want me to address one of my learned
friend’s ----
MR. JUSTICE FRASER: What I was going to do, Mr. de Garr Robinson, is give you an
opportunity now if there is anything you want to add by way of reply, and then I am
going to explain the situation.
MR. de GARR ROBINSON: I am grateful to your Lordship. My learned friend’s massive
point about Mr. Godeseth, your Lordship sees from this section Mr. Godeseth is responding to the expert evidence to which we have objected and the claimants are now saying they are not relying on. The relevant paragraphs talk about, “as Prof. McLachlan notes in paragraph”, it is telling a story dealing in more detail with the things that Mr. McLachlan dealt with in his witness evidence. It is rather to create this false picture of equivalence between Post Office and the claimants because Post Office felt the need to respond to a witness statement to whose existence is objected is a very strong thing.
My Lord, secondly, there is no conceivable equivalence between Mr. Godeseth and Mr. Henderson. Mr. Godeseth works for Post Office. He is a Mr. Taylor. MR. JUSTICE FRASER: Mr. Godeseth?
MR. de GARR ROBINSON: Mr. Godeseth.
MR. JUSTICE FRASER: I think he works for Fujitsu.
He has ----
MR. de GARR ROBINSON: I am so sorry, did I say Post Office?
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: I stand corrected.
MR. JUSTICE FRASER: He is the chief architect but he is on the Post Office ----
MR. de GARR ROBINSON: He is well capable of giving a great deal of factual evidence,
most of his witness statement is based upon his own knowledge. There are some small limited points which are based upon things that he is told by Mr. Jenkins because no human being can have full knowledge of absolutely everything. He is a Multiplex witness. He is not the kind of witness that the claimants want Mr. Henderson to be. As regards my learned friend’s second massive point, I am afraid I did not notice it.
MR. JUSTICE FRASER: All right. Thank you very much. Just give me a second, if you would. (Pause) I am going to give a short explanation to the parties about the situation.

Judgement follows:

Neutral Citation Number: [2019] EWHC 416 (QB)

Case No: HQ16X01238, HQ17X02637, HQ17X04248

IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

THE POST OFFICE GROUP LITIGATION

Before:

MR. JUSTICE FRASER

Between:

ALAN BATES & OTHERS 

- and -

POST OFFICE LIMITED

Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL

Date: Thursday, 14th February 2019

MR. PATRICK GREEN, QC (instructed by Freeths LLP) for the Claimant 

MR. ANTHONY de GARR ROBINSON, QC and MR. OWAIN DRAPER (instructed by Womble Bond Dickinson LLP) for the Defendants

APPROVED JUDGMENT

MR. JUSTICE FRASER:

1. This is a pre trial review in the Post Office Group litigation. The introduction to this short ruling is going to be brief because everybody in court is very well aware of the background. It is a claim by nearly 600 sub-postmasters in relation to the operation ofthe Horizon system, which is a computerised accounting system, and the Post Office’sbehaviour to those sub-postmasters as a result of what are said to be shortfalls and discrepancies in the accounting data.
   
   
2. The first round of issues that has been tried by me are called the common issues and they are contractual. That trial took place in the Autumn of 2018.
   
   
3. The second round of issues are technical computer issues and they are referred to as the Horizon issues. They are included in a schedule, schedule 1, to a case management order that I made on 23rd March 2018. They effectively deal with bugs, errors, defects in Horizon and how Horizon either does or does not work. There are all together 15 of these and each side has permission to call one IT expert each.
   
   
4. At this pre trial review stage, however, the court has been addressed by the Post Office in relation to part of the evidence of one of the witnesses who it is sought to be called by the claimants, Mr. Henderson. Mr. Henderson is a director of an organisation called Second Sight. Second Sight was engaged by the Post Office as an independent consultancy organisation on a mediation scheme to try and resolve the disputes between a large number of sub-postmasters and the Post Office in relation to the matters which are effectively the subject of this whole group litigation. As I recall, that process started in 2012. It came to an end in circumstances that could be described as prior to it having run its entire and natural course, and it is unnecessary to go into any further detail about that.
   
   
5. Mr. Henderson is a director of Second Sight and he has provided a short witness statement, which is about six pages long, dealing with his evidence in respect of that. I should say two things about Mr. Henderson. First of all, although his witness statement is somewhat short, it does refer to the Second Sight reports that were produced during the Second Sight mediation process to which I have referred. Secondly, it summarises the position as he sees it, involving his views on technical matters.
   
   
6. The Post Office is extremely concerned and has mounted what could be described asan assault on Mr. Henderson’s evidence, a term that I do not mean pejoratively. No application has been issued to strike it out or parts of it out as inadmissible, which was something that happened before the common issues trial when a very wide ranging attack was made on substantial passages of witnesses of fact that was proposed to be called; this time the Post Office’s objections to the evidence are the following. It is that Mr. Henderson is effectively trying to give expert evidence “by the back door”and there is no permission for him to be giving expert evidence. CPR Part 35 requires permission in order for that to happen; that effectively boils down into what are two main submissions. Firstly, that there is no permission for this expert evidence. Secondly, it is said that it will put the Post Office in an impossible position so far as cross-examining Mr. Henderson because they will not know which parts of his evidence that they are properly allowed to attack and which they are not, in order to attack the accuracy and content of the Second Sight conclusions in the Second Sight reports to which he refers. It is said that there would be an enormous amount of extra time required and it will cause very substantial timetabling issues for the Horizon trial.

7. It is also said that so far as adverse consequences to the Post Office were this evidence to be allowed, the claimants would be entitled to make submissions that large amounts of the Second Sight conclusions simply were not challenged. Accordingly, the Post Office submits that there is a risk that the claimants could be entitled to rely on the contents of the Second Sight reports when I come to consider the correct answer in my judgment to the Horizon issues.
   
   
8. I am going to deal with this in the following way. First of all, CPR 35.1 imposes a duty on the court to restrict expert evidence. CPR 35.4.1 makes it clear that expertevidence needs the court’s permission to be admitted. The situation which has arisen in this case, when permission has been given for an expert but another witness of fact, either involved contemporaneously or sometimes not contemporaneously, but who has technical knowledge of their own, often arises in litigation in the Technology and Construction Court. It is no surprise that although this case is not a Technology and Construction Court case, the Horizon issues in particular would be entirely at home in a Technology and Construction Court case because they raise very detailed and complicated technical issues.
   
   
9. Some authority was relied upon and there was a suggestion that there is a different practice in the TCC to expert evidence than in other lists. I do not consider that there is any separate approach in the TCC to expert evidence than there is across the rest ofthe Queen’s Bench Division, we are all governed by the CPR. I should say that so far as the TCC is concerned, witnesses of fact having detailed technical knowledge is not at all unusual. Obviously, witnesses who fall into that category may from time to time express their opinions but they are not governed by the requirements of independence under CPR 35.
   
   
10. The way that these situations are usually dealt with is that matters such as Mr. de Garr Robinson has explained, those sorts of concerns are made by way of submission withrespect to the weight that should be given to the particular person’s conclusions. In any case I am happy to make it clear, and I do make it clear now, that in so far as Mr.Henderson’s factual evidence seeks to portray the conclusions of the Second Sight report as being correct, it is not going to be necessary to form a view on that in order for me to answer the Horizon issues in Schedule 1.
    
    
11. In so far as Mr. Henderson is called and Mr. de Garr Robinson chooses to cross- examine him, it is entirely a matter for Mr. de Garr Robinson how he does that and how long he takes, but I am not going to allow the trial to be sidetracked into a satellite set of issues as to whether the Second Sight conclusions were, or were not,correct. Mr. Henderson’s factual evidence does identify how he came to the conclusions that he did. They may or may not be valid conclusions but on the basis that the claimants are calling their own separate independent IT expert and the Post Office is calling its own separate independent IT expert, it does not seem to me that the concerns the Post Office has raised are particularly either unusual or indeed well founded.

12. I would also point out that the Post Office intends to call two witnesses of fact and I am dealing with their first witness statements, not their responsive ones. Both Mr. Godeseth and Mr. Membery are employed by Fujitsu, both their witness statements have extensive technical information given within them, and they are plainly not being called as experts. It is often the case that the court has to be very careful when it hears evidence of fact from technical witnesses that it reminds itself regularly that their status is as witnesses of fact and not experts. I do not consider the correct approach is either to strike out any parts of Mr. Henderson’s witness statement, orindeed to give any form of indication to the Post Office regarding which sentences it should or should not cross-examine upon; it is entirely up to the Post Office how it goes about that.
    
    
13. It will help, I am sure, if I make the following points clear about a time-limited trial. The cross-examination of all the witnesses of fact we are going to come on to in a moment. I would not expect Mr. Henderson to be in the witness box for longer than about an hour. That is the maximum I am prepared to allow him to be cross- examined unless Mr. de Garr Robinson at the trial itself asks for a little bit longer. Any formal point that would be made by Mr. Green that because certain points have not been put to him, means they are not formally challenged, would be points that really would not be given the time of day by the court. It is only the main points that need to be put to witnesses in the time available for them to be cross examined at the trial, anyway. Every single point does not have to be put to every single witness, nor would there be time for this to be done. In all those circumstances, that is how we are going to deal with Mr. Henderson.
    
    
14. That then brings me on to timetabling generally. I am just going to explain before we get on to the experts what my proposal is for the first two weeks of the trial and then I am going to hear from both counsel about experts.
    
    
15. I do not expect any of these dates to be uncontroversial but I am just going to tell you what they are and you can then address me if you consider they are uncontroversial. Based on what each of you have said in your skeletons about how long each of you think you need in order to cross-examine each other’s witnesses of fact, the weekcommencing 11th March is going to be dealt with as follows: openings, oral openings are going to be dealt with on the Monday, half a day each, and then the rest of that week is going to be for the Post Office to cross-examine the claimants’ witnesses.
    
    
16. The next week is again a four-day week and that is going to be for the claimants to cross-examine the defendant’s witnesses. So, all the evidence of fact is going to befinished with by the end of week two.
    
    
17. That means that the written openings are going to have to be lodged some time early in the week of 4th March and I am going to suggest the Monday but I will hear from you about that in due course.
    
    
18. There is then going to be a week where we are not sitting. That is not to say the court will not be sitting on other things but we will not be sitting in this trial, and the evidence of fact will be complete.
    
    
19. I am going to explain to you, or hear from you in a moment, about length of time for experts but part of the reason for that week is not only that you can prepare to deal with experts’ cross-examination having perhaps less court time than you might like in an ideal world, but also that the legal teams are going to be able to start preparation for their closing submissions because the closing submissions are going to have to be delivered orally in the week of 8th April.

Transcript continues...

MR. JUSTICE FRASER: I will start with you first, Mr. de Garr Robinson, because I think
your opening position is you want four days.
MR. de GARR ROBINSON: My Lord, yes.
MR. JUSTICE FRASER: I have read the experts’ reports in quite a lot of detail.
MR. de GARR ROBINSON: Good heavens. Your Lordship will be aware how lengthy they
are and what a substantial amount of time it takes to read them properly. Your Lordship will be aware that Mr. Coyne’s first report is 154 pages of text, 225 pages in total. His supplemental report is 258 pages of text, 265 in total. The form of structure is one in which the report is extremely dense. It is one of those reports which is like a wall of separate points, all built up in front of you, a small number of points which are said to add up to a big conclusion. Each one of those points has a significant number of documents. Some of those documents or most of them are very technical. Some of them are quite lengthy narrative documents, peaks, and cals, and so on, but there are other documents as well. My Lord, just the supplemental report, Mr. Coyne’s supplemental report, I have a set of bundles of all the documents he directly refers to in that report and on a single-sided basis it runs to 12 lever arch files and over 300 documents.
My Lord, that sort of edifice is not possible, in my considered view, to cover in three days. If I can give your Lordship an example, section three of Mr. Coyne’s supplemental report that really sets out the claimants’ case for the first time in a clear and coherent fashion, that report, 50 pages of that section three are devoted to considering what he describes as 22 bugs or errors that he has found in Horizon. My Lord, for each of the bugs or errors he refers to a large number of peaks, messages, emails, and so on – perhaps not emails – and it would be easy to spend an hour on each one of those bugs or errors that he claims to have identified. An hour on 22 bugs or errors gives you 22 hours of cross-examination, so we are already over four days just if one approaches the matter on that basis.
That would not be the sum total of his cross-examination because it would then be necessary for me to put my case to Mr. Coyne. There is the rest of section three, his section four, 25 to 30 pages dealing with his views on the significance of the factual evidence, and then there is section five which is a whopping 130 pages in which he seeks to dissect in a very forensic way Dr. Worden’s first expert report. Critically, and it is important your Lordship should understand it, there are certain issues that we say Mr. Coyne should have dealt with, particularly on questions of extent, that he has not dealt with. I will have to have a debate with him about all the things he has not dealt with as well as all the things that he has.
At the end of the day, it is a matter of professional judgement and I have already heard what your Lordship has said but you asked me to tell your Lordship what I believe and, as I say, my considered view is that it would be easy to spend more than four days with him but four days is absolutely needed.
MR. JUSTICE FRASER: Mr. de Garr Robinson, it is extraordinarily unusual for cases in the
TCC, for example, a single expert on any matter, no matter how wide ranging or complex, to be cross-examined for longer than a day. I am sure, given a following wind, you could probably find questions to put to him, for example, on the 22 bugs; any highly competent and skilled cross-examiner, which I am sure you are, you could spend half a day on each of those bugs, probably. The question is how much time is available and how much time is proportionate and fair.
I have read the reports in quite a lot of detail. They do not seem to me to justify as long as you are asking for. Now, I am going to hear from Mr. Green briefly now but as an example on the 22 bugs, what one would normally expect is you would choose a selection of those only and explore those. If they all work in your favour, then that is all to the good for your submissions at the end. If some of them do not, then that might lead to different submissions.
As I am sure Mr. Henderson will have explained to you, and you probably know anyway, in some cases where one has six experts there is literally only a week available of the six, so the number of days that you have asked for I am afraid I consider excessive. I do have a nascent solution in my mind but I am going to hear from Mr. Green in a moment. I looked at the experts’ reports anyway when they were served because I was interested, and relooked at them again yesterday in considerable detail based on the outline trial timetables that you both kindly lodged at the beginning of the week, and actually what ends up happening is because each side does focus on its headline or best points over a number of times and will also have the experts’ agreements, the court is usually in as good a position after a time limited cross- examination of experts, as it is after weeks and weeks. I am, however, acutely conscious that it is much harder in a time-limited cross-examination necessarily to get the necessary time for preparation which is part of the reasons, as well as the other wider reasons, that I am carving out that week of week three. I will hear from Mr. Green. I know you would like longer.
MR. de GARR ROBINSON: My Lord, I say I need longer but I say that most respectfully.
MR. JUSTICE FRASER: I know you do but I have to balance a number of different factors and obviously look at CPR Part 1.
MR. de GARR ROBINSON: Yes.
MR. JUSTICE FRASER: All right, Mr. Green, what do you have to say?
MR. GREEN: My Lord, we are going to have a lot of difficulty getting through all 12 of their
witnesses in the four days.
MR. JUSTICE FRASER: We are talking about fact now, are we not?
MR. GREEN: That slightly plays in because a lot of their factual witness evidence is
technical evidence which feeds into their experts’ report. So, there are going to be some
economies we have to make with our factual witnesses.
MR. JUSTICE FRASER: There always is in a time-limited trial.
MR. GREEN: Of course, but ----
MR. JUSTICE FRASER: Both parties could, and probably 15 years ago would, have spent
six months fighting this trial on just the Horizon issues.
MR. GREEN: Your Lordship is absolutely right and we do not want to go back to that. We
are not going to. My Lord, we originally wanted internally four days to cross-examine their expert. We have looked at the timetable. We have decided not to call one factual witness, which we sought to get rid of, Mr. Singh. We have decided not to call Prof. McLachlan to try and accommodate everything, and it was on a compressed basis of the minimum we thought we would be able to manage it in, because I have to put Mr. Coyne’s back the other way, and we said three days.
MR. JUSTICE FRASER: I know but, Mr. Green, what is sauce for the goose is sauce for the gander. I have just told Mr. de Garr Robinson he is not going to have the luxury of being able to put all those things and what you are going to have to do is you are going to have to put your best evidence.
MR. GREEN: Absolutely, I accept that. The only point I want your Lordship to know is that it was not like we wanted three days and he wanted four. It was we wanted four ----
MR. JUSTICE FRASER: I know that in an ideal world I am sure each or either of you would like in excess of a week each but you are not going to have it, so that is the end of it.
MR. GREEN: Your Lordship should know just very briefly the chronology on provision of information to Mr. Coyne is that on 27th September he had 218,000 peak documents when his first report was on the 16th. So, at the beginning your Lordship will have seen
in paragraph 1.27 and onwards he has explained to what extent he is able to do that.
MR. JUSTICE FRASER: I know but all the facts are explored in evidence and it may turn out
to be a good, bad, or indifferent point.
MR. GREEN: My Lord, we are asking for three days.
MR. JUSTICE FRASER: I know and you are not going to get three days.
MR. GREEN: Very well. My Lord, I do not have anything to add other than to say that three
days is already compressed for us ----
MR. JUSTICE FRASER: For?
MR. GREEN: -- particularly as we now do not have the half extra day that we were seeking
for the factual Fujitsu witnesses.
MR. JUSTICE FRASER: I know. It is a time-limited trial and it is of a subject matter with
which I am extraordinarily familiar, we do computer cases in this building all the time, and to have two experts cross-examined for the total length of time each of you say you need added together, I am afraid, is disproportionate. I have explained week one to you and I have explained week two. Week three you are not going to be sitting at all. That is going to assist you both. The expert evidence is going to be dealt with in its entirety in the whole of the next week but we will sit five days so you get two-and-a-half days each. I fully appreciate that that is less time than you would like. One mechanism which is adopted in many cases is if there are other headline points which you wish to have taken into account which you have not been able to put, you can just make those in summary form in a separate section of your closing submissions and say, these points also arise but there was not time.
I am pretty confident that by the end of five days of cross-examination I will be in a very informed and fortunate position in terms of being able to come to a conclusion on the experts’ different points of view. Also, I think, and I may be wrong, are they meeting again?
MR. GREEN: My Lord, they are.
MR. JUSTICE FRASER: With a possible further joint statement. MR. GREEN: It is today.
MR. de GARR ROBINSON: Yes, they are meeting this morning.
MR. JUSTICE FRASER: There is no reason why they cannot meet yet again. There can be three joint statements. They are to be encouraged to agree as much as possible. That then leads us to week five of the current trial period. You are going to have a day each for your closings, Mr. Green on Wednesday and Mr. de Garr Robinson on Thursday, I think. I have freed up the Friday, 5th April, to be a five-day sitting week for the expert evidence week. Is that timetable clear, Mr. Green, so you can draw it up and append it to the order?
MR. GREEN: My Lord, yes.
MR. JUSTICE FRASER: I would like with your written openings, please, more detail of who
is being called on which days; obviously not so important for week three but very
important for week one and two, the way you did for the common issues.
MR. GREEN: Of course, the way we did before.
MR. JUSTICE FRASER: You will just have to discuss that between yourselves. Going back
to your agenda, then, I do not think anything else is enormously controversial, is it? MR. GREEN: My Lord, only the date for submissions to be provided to your Lordship. MR. JUSTICE FRASER: I would like them on the Monday. I will hear first from Mr. de
Garr Robinson and then I will come to you. Mr. de Garr Robinson.
MR. de GARR ROBINSON: My Lord, it is a function entirely of when your Lordship thinks
you are going to start reading in.
MR. JUSTICE FRASER: What often happens is one is told one is going to have a particular
period of reading and then actually things happen and one does not get that. Originally, I was told I could have an entire week but it is likely to be less than that. If I could have them, for example, noon on Monday the 4th together with an agreed bundle of authorities, then that would be very helpful from my point of view. Is that achievable?
MR. de GARR ROBINSON: Yes.
MR. JUSTICE FRASER: Is that right?
MR. GREEN: My Lord, yes.
MR. JUSTICE FRASER: That just leaves a discussion as far as trial timetable is concerned,
and hopefully constructive input from me, an indication of when you think that you are going to be lodging your closings. I will leave the point with you. The only observations I will make are as follows. If your written openings are sufficiently comprehensive, your closings should just really deal with the way that that has developed on the evidence. A lot of that is going to be clear after the factual evidence but obviously you will still have some to do after the expert evidence. I would like at least the whole of the Tuesday and preferably some of the Monday as well but I do not want to put impossible pressure on you exactly when you might lodge them, or we can decide later on in the trial. It is going to have to be at some point at the very beginning of that week. That is just to try and help. Is that timetabling? Is there anything else on timetabling?
MR. de GARR ROBINSON: There is one matter I should mention both to my learned friend and to your Lordship.
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: My learned friend very fairly pointed out in his skeleton
argument that in correspondence my instructing solicitors have indicated the order in which Post Office intended to call its witnesses and by mistake, and it was a pure mistake, they left out Mr. Membery. My Lord, when that was pointed out I immediately made enquiries which has uncovered this fact, that Mr. Membery has a serious illness which is going to require urgent medical treatment and it is not clear when he is going to get it. We will give our intended order of witnesses but there may need to be some flexibility.
MR. JUSTICE FRASER: And if it is going to help, I am happy to have him interleaved. MR. de GARR ROBINSON: I am very grateful.
MR. JUSTICE FRASER: And I am very constructive about situations like that. Whatever
anxiety the Post Office might have heretofore, there should not be any about that at all. MR. de GARR ROBINSON: I am most grateful.
MR. JUSTICE FRASER: Also, if he is in that situation, it might be sensible to have him first
on, on one particular morning so that he does not have to hang around; all of those sorts
of things.
MR. de GARR ROBINSON: That is very kind of your Lordship. Thank you.
MR. JUSTICE FRASER: All right. That is not an issue. You can liaise about that. Is that everything on timetabling?
MR. GREEN: My Lord, yes.
MR. JUSTICE FRASER: Right. The videolink is not opposed. I, of course, approved it in the circumstances. I am not sure what the difference is in term s of time between here and Pakistan.
MR. GREEN: We will deal with that, my Lord.
MR. JUSTICE FRASER: Again, I am completely constructive and helpful about that.
MR. GREEN: I think the morning is easier than the afternoon.
MR. JUSTICE FRASER: It should be done at the beginning of the session just because the
equipment needs checking, etc. etc. I do remember cross-examining quite a lot of witnesses in Australia once and that was about the worst possible time difference for everybody. I approve it in so far as I need to for Mr. Patny to be cross-examined via the video. Is there anything in the trial bundle point? Is that just an observation or a concern?
MR. de GARR ROBINSON: You mean in my skeleton?
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: It is a concern and it may be that there will be further
correspondence between the parties but there is nothing your Lordship needs to deal
with.
MR. JUSTICE FRASER: Good. Again, the situation vis-à-vis Mr. Wallis and OPUS, and
the transcript, is there anything about that?
MR. GREEN: My Lord, no. We put it in because your Lordship made a perfectly obvious
and clear order last time and we thought it should carry on for the next trial.
MR. JUSTICE FRASER: All right. I am happy to do that. Therefore, you will draw up the
order for today. Is there anything else that needs to be dealt with?
MR. GREEN: My Lord, no.
MR. JUSTICE FRASER: Liberty to apply. Costs, all of that; the usual. There are two things
that I would like to mention, please. They just relate to the group litigation generally. You will be getting an email later on today that gives you the four-week period for round four, which I promised you on Tuesday at the CMC, the 2nd to 26th March 2020. I know you were waiting for a date about that. Then the other point is just to explain the progress on the common issue judgment. I remain on track, more or less, to have that ready to be distributed in draft by the end of February. There may be one or two days slippage but that remains the achievable aim subject to any unforeseen events. Anything
else?
MR. GREEN: My Lord, no; thank you very much.
MR. JUSTICE FRASER: We are supposed to have the super court again for Horizon. I have
been assured that that is all in place. The claimants may just want to ensure that that is
the plan through official channels.
MR. GREEN: Thank you.
MR. JUSTICE FRASER: Thank you all very much.

Confirmation of Horizon trial scheduling

A press release from Luther Pendragon, the PRs for Freeths, who are the solicitors for the claimants:

Post Office Group Litigation update

4 March 2019

The judgement on the Common Issues trial in the Group Legal Action against Post Office Ltd is likely to be formally released in the week of 11 March. It is expected to be extremely detailed and will give full analysis and findings on the 23 separate issues addressed in the trial, as well as observations and findings on the evidence given by the witnesses for both sides.

Interpretation by Freeths on behalf of the JFSA will be made available as soon as possible after the judgement is handed down.

The second trial in the group action will take place in the Rolls Building, Fetter Lane, London and will commence on 11 March.  This trial will focus on several issues relating to the accuracy and robustness of the Horizon system used across the Post Office branch network. Ahead of this trial, independent IT experts have been appointed by each of the parties, each of whom will give evidence at trial.

Summary Trial 2 timetable

The trial timetable is subject to change so we cannot provide a detailed account of what is happening each day, however in summary:

Week 1 commencing 11 March

11 March – barristers for each side give opening legal submissions

12-14 March – evidence from claimants

15 March – court not sitting

Week 2 commencing 18 March

18-21 March – evidence from defendants

22 March court not sitting

Week 3 commencing 25 March

Court not sitting

Week 4 commencing 1 April

1-2 April – evidence from claimants’ expert

3 April – evidence from claimants’ expert and defendant’s expert (1/2 day each)

4-5 April – evidence from defendant’s expert

Week 5 commencing 8 April

8-9 April – court not sitting

10 April – claimants’ closing submissions

11 April – defendant’s closing submissions

12 April – court not sitting 

The Managing Judge has stated that he will continue to pro-actively manage the Group Litigation to a final conclusion as quickly as possible, whilst recognising that this is a major case with a large number of complex issues which need to be broken down and determined in stages. 

The ballad of Paula Vennells

Paula Vennells

Paula Vennells this week announced she'll be leaving the Post Office to join Imperial College Healthcare NHS Trust as its Chair in April. In January she was awarded a CBE and on 7 Feb she was appointed as a non-executive board member to the Cabinet Office. She leaves her organisation fighting a class action which has the potential to sink it (see timeline here). Paula Vennells' award and the appointments have outraged dozens of former Subpostmasters who hold her ultimately responsible for what happened to them - variously sacked, criminalised and ruined.

Ms Vennells joined the Post Office in 2007 and became CEO in 2012. She was head-hunted after a career working for massive blue chip companies. She started as a graduate trainee at Unilever, moved to L’Oreal, then Dixons Retail, Argos and finally Whitbread. On her decision to join the Post Office she told the Daily Telegraph:

“I felt I’d done the rounds in terms of big corporate jobs and saw something in the Post Office that was bigger and deeper, maybe it was something about giving back. If you work for the Post Office you can’t just focus on the commercial side by itself, it’s about community too. People care desperately for the Post Office. Very often it’s the sub-postmaster or mistress that notices that an elderly customer hasn’t turned up recently and finds out what’s happened to them.”

This quote suggests there was a moral and possibly even spiritual motivation behind her decision. She acknowledges that the public care for the Post Office and recognises this is largely because of the actions of Subpostmasters who "very often" act in a socially-responsible community-minded way. She wanted, in essence, to join the Post Office for the same reasons many Subpostmasters joined - to make a good living, yes, but also to put something back into the community.

What would Jesus do?

The Reverend Paula Vennells is an ordained christian minister. She preaches throughout the Bromham Benefice near her home in Bedfordshire. She has spoken about Faith in Business and how Jesus is her guide in what she does, as a review of one of her speeches records:

"Paula has taken biblical inspiration from the young King Solomon, who showed humility in asking God for a wise and understanding heart, so that he could rule his people with justice (1 Kings 3:6-12).... She has sought to celebrate what is good and deal decisively with what is not. She says communication should be inspiring, but also well structured, and it should not duck complexity – over-simple messages can leave people dissatisfied. In all this she has found inspiration from the person of Jesus."

When Paula Vennells joined the Post Office in 2007 as Sales and Network Director, the Horizon computer system was already wreaking havoc. Dozens of Subpostmasters had been sacked over discrepancies at their branches, and the Post Office's investigations department was busy suspending, investigating and prosecuting Subpostmasters at an alarming rate - with no external oversight of its activities.

A national scandal

Ms Vennells did nothing to stop or even change this. Whilst she was Chief Operating Officer (2009 - 2012) Seema Misra was prosecuted for theft and sent to prison whilst pregnant, despite a judge telling the jury the Post Office had "no direct evidence" on which to convict her. Whilst she was Chief Executive (2012 - 2019) former Subpostmaster Martin Griffiths took his own life and his widow's silence was allegedly bought. On her watch a mediation scheme collapsed in acrimony and the Post Office was described by MPs as "arrogant", "high-handed", "duplicitous" and responsible for a "national scandal". The Daily Mail described what's been happening as likely representing "one of the most widespread miscarriages of justice in the UK this century."

By any measure this would merit comment. But Paula Vennells has not once agreed to be interviewed by any journalist on what her company has been doing to people in the seven years she was running the show, nor the historical cases she inherited. 

This should shame everyone in my profession. For her entire tenure in charge of a multimillion pound, publicly-owned company not a single journalist has held Paula Vennells to account.

Where the buck stops

The one invitation Ms Vennells did accept to explain herself was in front of MPs on 3 Feb 2015, giving oral evidence to the Business Innovation and Skills Select Committee inquiry into the Horizon IT system. I was present.

Just before it started, whilst everyone was milling around the committee room entrance in awkward groups, I shouldered my way into her circle of flunkeys, introduced myself and asked for an interview. I wasn't expecting her to suddenly agree after four years of trying to get her to speak on the record, but I wanted to ensure she never had the opportunity to claim she didn't know about the interview requests she was getting. Ms Vennells was polite, shook my hand and muttered something about speaking to her press office. Which I did, and which, as ever, came to nothing.

During the inquiry (which you can read in full here), the following exchange took place:

Nadhim Zahawi MP: You are the chief executive, so the buck stops with you. 

Paula Vennells: It does stop with me. Also, therefore, as chief executive, I am responsible for the reputation of and what happens for the Post Office.

This is Paula Vennells publicly acknowledging, on the record, her moral, legal and corporate responsibility "for" the Post Office. The buck stops with her.

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.

First trial judgment

There is no doubt Paula Vennells is a successful and talented businessperson, and that she has been very careful to ensure there is nothing to explicitly connect her with what her organisation has been doing. 

But she was in charge of the Post Office for 7 years. She was ultimately responsible for the decisions which provoked more than 550 claimants to launch their High Court action (the defence of which is currently costing the taxpayer millions). Some of those decisions are now being investigated by the Criminal Cases Review Commission. This is serious stuff.

The first trial in the class action concluded in December last year. Between Christmas 2018 and the imminent judgment on that first trial Ms Vennells has taken steps to cocoon herself in the establishment's protective embrace.

Of course, Mr Justice Fraser's findings could entirely exonerate her and her actions. If it doesn't, someone somewhere has to hold her to account, because mere journalists can't. 

Paula Vennells has proved that if someone in a powerful publicly-funded position doesn't want to answer serious questions, they don't have to. 

And that's wrong.

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

NB: just in case you're wondering, I asked the Post Office if Ms Vennells would be available for an interview about her leaving the Post Office and the court case she's leaving behind. Obviously, it was a no.

So where are we now?

Tony de Garr Robinson (pic: One Essex Court)

Today's pre-trial review was a matter of crossing the tees and dotting the ayes before the Horizon trial, which begins three weeks on Monday.

As the "unbelievably clever and super charming" Anthony de Garr Robinson QC (above) will be leading the Post Office's defence in the Horizon trial, he was in court today. David Cavender QC (who acted for the Post Office in the Common Issues trial) will be back for the third trial this November (see below for more info on that).

In today's pre-trial review:

- The Post Office suffered a comprehensive defeat in its attempt to stop the judge paying too much attention to Ian Henderson's evidence in the forthcoming Horizon trial.

- We got some more clarity on how the Horizon trial will proceed.

Let's deal with the first point first.

Mr de Garr Robinson expended a considerable amount of energy on trying to persuade the judge, Mr Justice Fraser, that accepting the six page witness statement submitted by Ian Henderson, a director of the forensic accounting firm Second Sight, was somehow not fair on the Post Office.

Wary of making a formal strike-out request after the Post Office was defeated in a pre-trial ruling before the Common Issues trial (read the ruling here, it's pretty comprehensive), Mr de Garr Robinson said he was instead seeking some kind of assurance from the judge that the Post Office would be protected from any adverse consequences which might come from interpreting what Mr Henderson has written as expert evidence as opposed to factual evidence (each party is only allowed one expert each in this trial, and there is a practice direction which excludes any other kind of expert witness evidence).

He developed his point to say that although Mr Henderson only provided a six page written statement, in it he makes reference to at least one Second Sight report written about Horizon (read more on Second Sight's reports here).

The conclusions reached by Second Sight are hotly disputed by the Post Office and Mr de Garr Robinson was at pains to point that out to the judge. He suggested that any weight given to Second Sight's reports by the court should only come after a thorough investigation into Second Sight's methodology, which was certainly possible, but time-consuming, expensive and not what the Horizon trial was about.

Good for the Goose

He also said that if he were to challenge Mr Henderson's statement under cross-examination, Mr Henderson would introduce other themes, reports, expertise etc and in order to have the tools to properly counter and question anything Mr Henderson says, a huge amount of work would need to be done, which would take Post Office outside the scope of the purpose of the Horizon trial.

The judge asked if the Post Office felt that Mr Henderson's witness statement amounted to expert evidence effectively admitted by the back door. Mr de Garr Robinson said he did, and said it was therefore specifically prohibited by practice direction.

The judge asked Patrick Green, QC for the claimants if he had anything to say.  Mr Green did. He noted “what is good for the goose is apparently not good for the gander” and pointed out that a witness statement by a Post Office employee relied very heavily on conversations with Gareth Jenkins, the Fujitsu IT expert who acted for the Post Office in the trial of Seema Misra [read this for more on the Misra trial].

There was a bit more to-ing and fro-ing and then the judge made his ruling, which was that Mr Henderson's witness statement should stand in its entirety and that during the trial the Post Office could cross-examine him on it for a maximum of one hour.

Another thing which came out of these exchanges was that Gareth Jenkins from Fujitsu is not being called to be cross-examined, and neither is Professor Charles MacLachlan (the latter was appointed an independent IT expert for Mrs Misra).

It's odd that Mr Jenkins is not going to be cross-examined. Two months before he was acting for the Post Office in the Misra trial (which, don't forget, led to Mrs Misra being sent to prison whilst pregnant, solely on the basis of Horizon "evidence") he took part in a meeting about a serious Horizon error which had been affecting several Post Offices for months. The existence of this error had deliberately been kept secret from the affected Subpostmasters, even though it would be potentially leaving them out of pocket. As far as I am aware Mr Jenkins did not disclose the existence of this error to the jury, or to Professor MacLachlan. Perhaps he decided it wasn't relevant. Because he is not being cross-examined, I suspect we'll never know.

Scheduling the Horizon trial

The second part of the morning was taken up with a discussion on scheduling. Both parties pleaded for more time to cross-examine the witnesses and experts, which the judge cheerily refused.

During this discussion it was revealed that the independent IT expert appointed by the claimants, Jason Coyne, has discovered 22 Horizon errors. These must have some kind of material impact or they wouldn't be part of his report. It'll be interesting to know more about them when that report is released to the court.

The way the trial will proceed is as follows:

11 March - opening arguments from the claimants and defence
12 - 14 March - cross-examination of the claimants' witnesses by the Post Office QC
18 - 21 March - cross-examination of 12 Post Office witnesses by the claimants' QC
1 - 5 April - cross examination of the expert witnesses (2.5 days each)
10 and 11 April - closing arguments

You'll notice the court is not sitting w/c 25 March - this was first floated by the judge at the case management conference on Tuesday. It is now definite. Apparently Britain is potentially leaving the EU that week, and HM Courts and Judiciary (including Mr Justice Fraser) need to be on standby for who knows what kind of legal shenanigans.

Among the last things the judge mentioned this morning was me, by name, which woke me up a bit. The judge indicated that his order during the common issues trial that I receive daily transcripts of each day of the trial's proceedings should continue during the Horizon trial. Which is quite the thing.

The next 12 months

So after Tuesday's case management conference and today's pre-trial review, this is where we are now:

28 Feb or first week in March Common Issues trial judgment due.
11 March - Horizon trial starts
11 April - Horizon trial ends
Sometime in May - Horizon trial judgment due
23 July - case management conference for Breach/Concealment trial (also known as "Round 3")
18 Sep - case management conference for Breach/Concealment trial
17 October - pre-trial review for Breach/Concealment trial
4 November - Breach/Concealment trial

The Breach/Concealment trial is scheduled to last four weeks. The cases of claimants Naushad Abdulla and Pam Stubbs will be tried. Both Naushad Abdulla and Pam Stubbs were lead claimants in the first trial, so you can read their witness statements and oral evidence here.

Issues of limitation, concealment and breach will be tried. On Tuesday in court pleadings, disclosure and evidence were discussed. The general agreement appeared to be that key moments around specific incidents which have already been identified in each claimant's case will be gone over in detail, and the Post Office will be required to disclose all the documentation relating to each of these specific incidents so they can be tried fully.

The judgment in this trial could arrive just before Christmas 2019, but bearing in mind the speed at which things are happening now - it's more likely going to be Jan or Feb 2020.

Only after that will the judge decide how relatable his findings are to the remainder of the claimants.

Whatever the relatability of those findings to the wider GLO cohort, we will get concrete findings for or against Mrs Stubbs and Mr Abdulla. If the judge finds in (either of) their favour, there will be damages.

If you want to have a read of today's live tweets, they're here. All errors my own, including calling Mr Coyne "Mr Coin" throughout. Happy Valentine's Day.

Horizon Trial pre-trial review live tweets

Here are the live tweets I sent out during this morning's pre-trial review. You can read a beautifully-formatted version on thread reader here and you can read the original thread on twitter here. Or just read down...

We are in Court 19 of the High Court Rolls Building for a Pre-trial conference (PTC). The morning’s discussion will be about the second trial in Bates and others v Post Office - the Horizon trial - starting 11 March. pic.twitter.com/dQGocGWYxr

— Nick Wallis (@nickwallis) February 14, 2019

All tweets are paraphrases and summaries of what is being discussed. Nothing I tweet is said verbatim unless it is in “direct quotes”.

Mr Patrick Green QC will be representing the claimant Subpostmasters. Mr Anthony de Garr Robinson QC repping the Post Office.

Follow this thread for all the “action”.*
* I am not expecting much action.

Judge is sitting. They are discussing the witness statement of one of my followers @forensicgod and his meeting with Gareth Jenkins, the Fujitsu employee who was the expert witness for the Post Office in Seema Misra’s trial.

PO counsel has apparently objected to something in @forensicgod’s (Ian Henderson) statement.

PO QC says it is not seeking to exclude all his evidence. It is just trying to limit it to “proper” facts.

Also PO QC keen to keep Professor Charles McLachlan out of the picture (he was Seema Misra’s expert witness in her trial).

JFSA QC confirms the prof will not be called

So PO have successfully blocked Professor Charles McLachlan and they are trying to limit @forensicgod’s on the basis of practice directions which try to keep proceedings manageable.

CPR 35.1 is the practice direction which limits expert evidence.

PO QC says @forensicgod’s evidence falls well outside of this general prohibition.
JFSA QC relying on case law to keep @forensicgod’s in the trial. Judge is going to have to make a ruling on it.

Going back to @forensicgod’s statement on his knowledge of Horizon and the manner in which Second Sight was terminated by the PO, his confidentiality agreement and the way docs were provided to him by the PO. PO QC call the latter three issues “blissfully irrelevant."

PO QC not happy about @forensicgod’s description of receiving data from the PO. Saying his “concerns” are not even a conclusion.

PO QC says Second Sight’s reports are hotly contested and if they were to be incorporated into this trial work would have to be done on whether those reports were done properly. By referring to and relying on those reports in his witness statement @forensicgod is...

… introducing huge areas which “is not what the Horizon issues trial is for."
PO QC says this matters a great deal. They are angling for the opportunity to cross-examine @forensicgod, which he currently isn’t scheduled to do on a time-limited basis.

But also saying that if they do that - then @forensicgod will introduce a load of other arguments and justifications which would extend the document bundle significantly. So even if they did get to xe @forensicgod it wouldn’t be fair on them.

PO QC repeats that this is not what the trial is about. PO QC now repeating judge’s words back to him from a CMC on 22 Feb when he told the court exactly what the Horizon trial was to be all about.

Evidence of fact kept to a minimum and the court was to rely on expert evidence.

J asks how many PO witnesses of fact there are going to be.
PO QC says about 12.
J The only real issues is how to treat Mr Henderson (@forensicgod) - you say he’s an expert by the back door.
PO QC: My lord we do.

It’s a very odd process that seeks to exclude experts. But hey. That’s the law.

PO seem to be saying that @forensicgod is making claims as an expert, but they have no oppo to challenge them. But that it would be bad to challenge them because it would create a whole load more work and court time. So it would be better if it weren’t admitted.

PO QC insists, tho, that is is not a strikeout application. (PO QC is making this submission in full awareness of the last PO strikeout application which they lost comprehensively).

PO QC wants a ruling or direction which gives PO the protection its entitled to adverse consequences from accepting his evidence.

PO QC says admitting the evidence when it isn’t properly challenged creates a problem, but allowing that challenge would extend the trial and

give the PO a headache in having the tools to respond to whatever @forensicgod says. AND that they shouldn’t be doing this anyway because the work of Second Sight is NOT what the Horizon trial is all about.

JFSA QC responds “what is good for the goose is apparently not good for the gander”. There is a massive assymmetry in the information available to the claimants and to the PO.

JFSA QC taking J to a document in the bundle (Vol 2 of 5 Sec 5 Tab 7b, fact fans). Mr Godseth (?)’s second witness statement talking about Prof M and Gareth Jenkins again.

Witness statement refers to payments mismatch bug, callendar square bug, dalmellington bug…

J so you’re saying he’s being called as a witness of fact, when in fact he’s making expert witness points.

JFSA QC “its much worse than that” - goes on to quote how this PO witness...

… relies on conversations with Gareth Jenkins (who is also not being called in this trial).

Gareth Jenkins was the PO expert witness from Fujitsu at the Misra trial who was also present in internal PO meetings around the same time of the Misra trial discussing withholding information about Horizon bugs from Subpostmasters, as we discovered in the common issues trial.

Wonder why Jenkins is not being called in Horizon trial.

We are going to get a direction/ruling/order on @forensicgod’s witness statement, now.

Judge is summarizing the GLO before he gives the ruling for the written record.

H trial is about: Bugs errors defects in Horizon and how H does or does not work. There are 15 of these issues and claimants and PO are allowed to call one expert witness each.

He is now explaining the Second Sight investigation and its termination. Mr Henderson as a director of 2S has provided a short witness statement. His WS is somewhat short, but it does refer to reports by 2S. It summarises the position as he sees it involving his views...

… as he sees it on technical matters. No application was made by the PO to get his statement thrown out (which they tried to do in a wide-ranging way before the Common Issues trial). They are objecting that under CPR 35 this is introducing expert evidence by the back door.

They also object to his evidence on the basis that they don’t know what they can attack and that it would be a huge amount of work to prepare to do so.

Witnesses of fact in the TCC courts often have a huge amount of technical knowledge. Insofar as @forensicgod’s evidence seeks to rely on 2S’s reports as being correct I don’t need to consider that.

I am not going to allow this trial to be sidetracked into a satellite trial about the quality of 2S’s reports.

It doesn’t seem to me the concerns the PO has raised are either unusual or well-founded. J notes that PO has called witnesses of fact with vast amounts of expertise.

I don’t think it is helpful if I strike out or rule any of Mr H’s evidence as inadmissible. Nor am I going to tell the PO what they can or can’t challenge about it. That’s up to them.

Mr Henderson can be cross-examined, but I don’t expect that to last more than an hour.

That means @forensicgod’s witness statement is allowed to stand in its entirety.

We are now discussing timetabling of the Horizon trial.

It will definitely start on 11 March. Half a day each for opening submissions. Then the rest of the first week will be taken with the cross-examination of claimants witnesses.

The second week will be claimants’ xe of PO witnesses.

Third week the court will not sit cos Brexit.

Fourth week (commencing 1 April) will start the expert witness evidence.

PO QC wants to spend 4 days xe-ing Mr Coin - the claimants’ expert witness. Mr Coin has apparently uncovered 22 bugs in Horizon.

PO QC says that he could spend an hour xe-ing Mr Coin on each bug - that’s 22 hours.

J not having any of it. Says its very unusual for anyone in the TCC courts to be on the stand for more than a day. Your request is excessive.

JFSA QC on his feet. Says we’re going to have a lot of trouble getting through all 12 of the PO’s witnesses of fact.

J notes that a while back this trial would take 6 months. We’re not going back to that.
I know in an ideal world each of you would like a week each, but you’re...

… not going to get it.
JFSA QC we’re asking for three days.
J I know and you’re not going to get it.
JFSA QC - nothing further to add.

J okay - w/c 1 April we will sit 5 days and you will get 2.5 days each.
Anything you can’t put to the witnesses you can put in summary form in your closing argument. I am sure in 5 days of xe I will be very well informed and able to
to come to a conclusion.

J notes the IT experts for PO and JFSA are meeting this morning to agree a further joint statement. There’s no reason why they can’t meet again. They ought to be encouraged to agree as much as possible.

Final week will be closing submissions from the JFSA and the PO QCs.

Suspect the court will not be sitting on Mon 8 April and Tue 9 April to give the judge time to read the closing submissions.

Judge has just ordered that I get the transcripts of each day in court as they are distributed to the claimants and defence.

Which was nice.

Court has risen.

So that’s that. A wee battle over the admissibility of @forensicgod’s evidence which the Post Office lost, scheduling and timetabling discussions and we’re all set for 11 March.

Justice delayed

Rollsing Rollsing Rollsing...

The judge in the Post Office group litigation has told a Case Management Conference at the High Court Rolls Building today that his judgment on the Common Issues trial, which finished on Thursdau 6 December, will now not be released until the final day of February at the earliest.

Mr Justice Fraser had told the court he wanted to hand down his findings at the end of January, but the judgment isn't finished. He gave no reasons for the delay or why it would take at least a full month longer to complete. He put the claimants and the defendant on notice that they would receive the draft judgment in "late" February.

The notification of the delay came at the end of a morning's legal argument about the third trial of this group litigation. The judge ordered this will begin on Monday 4 November and will last four weeks.

We also got a little closer to understanding what the third trial would be about. The judge today directed (in the face of some resistance from the Post Office) it will be about some of the outstanding issues which weren't covered by the Common Issues trial and won't be in the forthcoming Horizon trial. I haven't seen the skeleton arguments from either party so I don't know what those outstanding issues are or will be, but the claimants' QC, Mr Patrick Green was very keen to get alleged issues of deceit, concealment and fraud by the Post Office into the third trial.

Whether he will succeed or not will be played out between the QCs as they meet up to discuss things next week. If the QCs cannot come to an agreement, they will each draw up a list and the judge will decide which issues the trial will cover at the next case management conference on Tuesday 12 February.

Round three

The judge also wants both parties to decide whether or not the third trial will need Lead Claimants and whether or not those lead claimants will be the same as the lead claimants in the Common Issues trial. If new lead claimants are to be selected, he needs to know how many new lead claimants both sides are proposing and he wants them to agree the mechanism for selecting those claimants by the date of the next CMC.

It is almost certain a fourth trial will now take place in Spring 2020.

Reading the above must be hugely disappointing for those who were hoping a judgment on last year's Common Issues trial was imminent, but it's now going to arrive very close to the start of the Horizon trial, which begins on 11 March.

Newsworthy findings might stoke wider media interest in the next chapter of this very long and very drawn out legal story.

Read today's full live tweets here.

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

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It looks like I am going to be following this group litigation for at least another year. Every pound you give (after PayPal take their cut) will go towards helping me report it effectively. Thank you!

Case Management Conference live tweets

Hi all - live tweets of today's proceedings below. Read the originals on twitter here, or read the thread on thread reader here. Or just read down...

Case Management Conference for Bates and others v Post Office has begun. Court 1 of the Rolls Building. Mr Justice Fraser presiding. Mr Cavender QC for @postoffice, Mr Green QC for the claimants currently on his feet.#postofficetrial
Follow this thread for live tweets. pic.twitter.com/8xjNJKtUzU

— Nick Wallis (@nickwallis) January 31, 2019

Mr Patrick Green and Judge discussing October’s trial. PG apologises for documents going to the wrong place. J says a couple of years in and he’s sure the documents will go where they should eventually.

Just a note - nothing in these tweets is a direct quote unless it is in direct quotes. These tweets are paraphrases and summaries of what is going on. And they will be infrequent as I try to pull out the nuggets from the legal to-ing and fro-ing.

#postofficetrial

If you want to know why I am in court, do have a look at postofficetrial.com - it has the whole story.

#postofficetrial

October’s trial might not be October’s trial at this rate… it could be December. 

I am told some group litigations can take 5 years...

The third trial (previously known as October’s trial) doesn’t yet have a name. It was being called the “Breach” trial during the Common Issues trial.

Mr David Cavender QC for the Post Office on his feet.

Argument is about how many lead cases the third trial should have as well as the number of experts and the date.

There are at least three journalists in court, which must be some sort of record for a CMC. I did warn them.

Circular discussion which still hasn’t been resolved since the last trial - it is in the interests of doing things thoroughly to try as few claimants as possible in the third trial. However the fewer you do, the fewer issues they have which are relevant to the wider claimant pool

Everyone agreed on this. Ideas for how to resolve it not yet aired.

PO QC: this is what happens in any group litigation.

J: It’s what’s happening in THIS litigation.

The claimants proposed solution is to try more issues in third trial rather than individual cases. PO QC calls this “not very well thought through"

We are already one journalist down.

J: "I consider a round three trial in the autumn of 2019 not only to be a good idea, but to be essential."

J also says a 5 week trial (as opposed to a 10 week trial) is the best balance between cost, effectiveness and resolution.

So we’re going to have a 5 week trial in the autumn. But we are no nearer to what its content will be than we were in December. So how is judge going to move this forward?

J rejects PO’s argument that third trial should be of two individual claimants. It will instead be (subject to informed debate between the parties) on a group of issues. Claimants very keen to get alleged issues of deceit, concealment and fraud by PO into the third trial.

J notes no agreement about what third trial involves or which claimants should be involved. today’s CMC was meant to be all about third trial and yet there’s no agreement between the parties at all about what form it should take….

… However J has now decided it will be on a group of issues.

J so you want third trial to happen in the autumn and you want it to be around other issues not yet agreed to maximum resolution, and you want to spend the next 7 days discussing what those issues are and if you can’t agree you come back to me?

PG Yes.

J turns to PO QC.

DC: My lord I think it is a terrible idea.

[he goes on to explain why]

J going through PO plan. Resolving 2 cases in trial three, then 16 cases in trial 4 in 2020. Judge’s tone suggests he is not happy with this proposal.

J Suggests this means no resolution for the first claimants till 2020.

PO QC says J's got low expectations of what might come out of third trial. It will inform many other claimants’ cases.

J I think is pushing for a re-run of first trial format except with different issues and potentially new lead claimants.

J about to make an order.

Third trial (now called R3) scheduled for 8 Oct. J wonders if this is too soon given we appear to be starting from scratch.

PG asks for November start.

PO QC agrees.

Okay so date of third trial R3 (this was first raised during the first week of the Common Issues trial in November last year. it’s taken more than two months to get to this)...

Third trial will start on 4 November and last for four weeks. That is now an order. Finally.

Judge adjourns rest of CMC till Tue 12 Feb

J: you must agree a list of issues to be identified in R3 and whether there are issues of fact involved and therefore how many lead claimants needed. If you can’t agree I need a list from both of you and I will make a decision.

J also orders the two QCs to meet and actually spend some time together to try to resolve their issues.

PG QC: We are quite good at that now.

PO QC asking judge to order a proposals list of lead claimants for R3 and set up a selection process for those claimants. And that that selection criteria process should start now.

J you will agree list of issues in R3, which of the existing lead claimants can be used in R3 and..

… if there are any new lead claimants to be added the selection criteria for choosing the new lead claimants.

J turns to judgment of Common Issues trial. 

Had hoped it would be end Jan, but it isn’t finished. Current plan is draft will be with parties in late Feb. J says it will not be handed down [made public]...

… AT LEAST before the last day in Feb.

J has asked that both the Post Office and claimants liaise transparently with the press to ensure all parties are aware of the date the judgment will be handed down as soon as it is known. Both QCs agree.

Judge rises. CMC over. Alan Bates, head of the JFSA has just walked over to me. He’s asked that I let people know that the two conferences he was planning to hold with claimants in Feb will now be postponed until the judgment has been handed down.

Oh well.

That concludes todays tweets from #postofficetrial

Full write-up will be on the blog postofficetrial.com as soon as I can.