11 June 2024 – Anthony Robinson
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(9.45 am)
Mr Beer: Good morning, sir, can you see and hear us? Good morning, sir, can you see and hear us?
Sir Wyn Williams: Yes, thank you very much.
Mr Beer: Thank you. May I call Anthony de Garr Robinson KC, please.
Sir Wyn Williams: Yes, of course.
Anthony Robinson
ANTHONY JOHN DE GARR ROBINSON KC (sworn).
Questioned by Mr Beer
Mr Beer: Good morning, Mr de Garr Robinson.
Anthony Robinson: Good morning.
Mr Beer: My name is Jason Beer and I ask questions on behalf of the Inquiry. Can you tell us your full name, please?
Anthony Robinson: Anthony John de Garr Robinson.
Mr Beer: Thank you for attending the Inquiry today to give evidence. You’ve previously provided us with two witness statements, the first of which is a very detailed and long witness statement. Can we start, please, by looking at that.
Anthony Robinson: Yes.
Mr Beer: It will come up on the screen, and you should have a hard copy in front of you. It is 63 pages long and dated 14 May 2024.
Anthony Robinson: Yes.
Mr Beer: If we go to page 63, please.
Anthony Robinson: I’ve done that.
Mr Beer: Is that your signature?
Anthony Robinson: That is.
Mr Beer: Thank you. Then yesterday you made a second witness statement which is four pages long, which corrects a number of passages in the first witness statement. That’s WITN10500200.
Anthony Robinson: Yes.
Mr Beer: If you turn to the fourth page of that, is that your signature?
Anthony Robinson: Yes, it is.
Mr Beer: Are the contents of that second witness statement true to the best of your knowledge and belief?
Anthony Robinson: Yes.
Mr Beer: Bearing in mind the corrections that you make in the second witness statement to the first witness statement, are the contents of the first witness statement true to the best of your knowledge and belief?
Anthony Robinson: Subject to those corrections, yes.
Mr Beer: Thank you very much.
Can we start, please, with your background. I think you were called to the Bar in 1987; is that right?
Anthony Robinson: Correct.
Mr Beer: You took silk in 2006; is that right?
Anthony Robinson: Yes.
Mr Beer: Your practice focuses on and, at the time that we’re talking about, focused on commercial work, commercial Chancery work, banking and finance, company and civil fraud work; is that right?
Anthony Robinson: Yes.
Mr Beer: You acted, relevantly to this Inquiry, for the Post Office in the group litigation brought against it by subpostmasters concerning both their contractual relationship with the Post Office and then subsequently the operation of the Horizon system?
Anthony Robinson: Yes.
Mr Beer: In the counsel team, I think Owain Draper was one of your juniors – is that right –
Anthony Robinson: That’s correct.
Mr Beer: – alongside, subsequently, Simon Henderson later in the proceedings –
Anthony Robinson: That’s correct.
Mr Beer: – and then Rebecca Keating later still?
Anthony Robinson: Yes.
Mr Beer: So far as you are concerned, was that the full complement of the counsel team for your part of the case?
Anthony Robinson: For my part of the case, yes. There was another junior called Gideon Cohen, who acted in relation to the common issues, in – but he was acting at a time which, to the best of my recollection, was a time when I wasn’t heavily involved.
Mr Beer: Thank you. I should make it clear at the outset of my questioning of you that the authoritative, factual and legal position in relation to the issues addressed by them is established, for the Inquiry’s purposes, by Mr Justice Fraser’s Common Issues judgment, that’s his judgment number 3, dated 15 March 2019; by his Horizon Issues judgment, that’s judgment number 6, dated 16 December 2019; and, insofar as it’s relevant, by the Court of Appeal’s decisions refusing permission to appeal against the recusal judgment, dated 10 May 2019 and against the Common Issues judgment dated 16 November 2019. So I’m not going to ask you about the substance of the issues addressed by those judgments.
Anthony Robinson: I understand.
Mr Beer: Can I turn to your first instruction, then, please. You tell us, if we turn up, please, in your first witness statement, at paragraph 10, which is on page 3 – it will come up on the screen – if we scroll down to paragraph 10, you deal with your first instruction and you say:
“My first involvement in this case occurred in May 2018.”
Then about four lines in you say:
“On 18 May 2018, my clerks forwarded me copies …”
Then you talk about a meeting in paragraph 11 taking place on 20 May 2018. I think that should be 2016, shouldn’t it?
Anthony Robinson: I’m so sorry, I couldn’t tell you now, sitting here now. I thought the 20th. If I’ve made a mistake on the date, then it’s a mistake on the date. I couldn’t – I’d need a document to remind me. Maybe it was a typo.
Mr Beer: Yes, it’s the year, I think, for all of those?
Anthony Robinson: Oh, I see.
Mr Beer: I think it’s 2016 for all –
Anthony Robinson: Yes, 2016, you’re quite right.
Mr Beer: – three of those years?
Anthony Robinson: Oh, yes.
Mr Beer: So we should additionally correct those three years to 2016, rather than 2018?
Anthony Robinson: Yes, I’m so sorry.
Mr Beer: No, that’s all right. In any event, as to the substance, you say:
“My first involvement in this case occurred in May [2016]. As I recall, I was told that the Post Office was having a series of meetings with several counsel with a view to instructing one of them to act in a dispute in which it was involved. I was to be one of the counsel [with] whom [Post Office] would be meeting.”
So is that kind of a beauty parade, essentially, for barristers to be selected by the client?
Anthony Robinson: Exactly.
Mr Beer: You continued:
“On 18 May 2016, my clerks forwarded me copies of a Letter of Claim written by the [subpostmasters’] solicitors (‘Freeths’), a copy of a claim form and a briefing note containing a high level summary of the dispute prepared for the purpose of these meetings.”
That’s so you can be asked some questions about the substance in the course of the beauty parade; is that right?
Anthony Robinson: Yes.
Mr Beer: Thank you:
“The meeting with me took place on 20 May 2018. I do not remember much about the meeting but I think that Jane MacLeod, [the Post Office’s] General Counsel, was present. I also recall a discussion about a point which involved some real concern for [the Post Office]. This was the fact that, on the basis of information provided by Fujitsu, [the Post Office] had on several occasions formally confirmed that it was not possible for anyone to use Horizon to alter branch transaction data remotely (something which became known as ‘remote access’). [The Post Office] now knew that this was possible, and the question was how to manage this problem. I said that [the Post Office] should be open about it, and not try to hide anything.”
Now, you refer there to what happened in this beauty parade and one of the big issues, you say, was remote access.
Anthony Robinson: Yes.
Mr Beer: Did that remain one of the most significant issues in the case?
Anthony Robinson: I don’t mean to cavil, it would depend upon – it remained a significant issue, certainly, but whether it could be called the most significant issue, I’m not so sure. I’m not trying to be difficult with words. It certainly remained a significant issue and the embarrassment was that Post Office had said things suggesting that it couldn’t happen when, in fact, it turned out it could, and that was a significant – very significant issue throughout.
Mr Beer: I think that happened successively, didn’t it, ie the Post Office kept saying things that it then corrected?
Anthony Robinson: Yes. It was very frustrating at times.
Mr Beer: Yes. Can we look, please, at a document to orientate us at this time. POL00103200. We will see that this is an email from Jane MacLeod to Paula Vennells of 23 May 2016, so a few days after the beauty parade. You’re not copied in on it, it’s not something you would have seen at the time but it says something about you, which is why I want to ask you about it.
Anthony Robinson: Right.
Mr Beer: If we go down to the third paragraph, Ms MacLeod says:
“We have instructed Bond Dickinson to act as our solicitors on the basis that they have advised us throughout on Sparrow and have a very deep understanding of the history, the individual cases and the political sensitivity of Sparrow. They are a highly ranked firm with the depth of resource and experience to represent Post Office in this litigation. In addition we have retained leading commercial barrister Tony Robinson QC who has extensive experience with group litigation and a wide background in civil litigation”, and then there’s a link to your webpage at One Essex Court:
“Tony will be key to developing and implementing the litigation strategy and when we interviewed him on Friday he had already grasped the political significance of the case.”
Then it goes on to explain why Linklaters aren’t being used and Bond Dickinson are.
The sentence that “on Friday” showed that you had already grasped the political significance of the case, firstly, is that right? Had you, at this early stage, grasped the political significance of the case?
Anthony Robinson: I am not entirely clear what’s meant by “political significance”. I’d certainly grasped the point that you’ve already averted to, namely there was a sense of embarrassment and concern about the fact that statements had been made regarding remote access. I find it difficult to think that there would have been other issues that I also would have grasped, whether they were to be regard as political, though, is something that isn’t really for me to say. I’m not trying to be difficult, I just am not entirely clear what Jane MacLeod meant by “political”.
Mr Beer: Taking it out of Jane MacLeod’s mouth, would you, at this early stage, have regarded the case as involving any political issues?
Anthony Robinson: I’m trying to think back. No, I would have – I regarded this as a piece of commercial litigation, a dispute between two groups of people. So I would have regarded the issues more as litigation issues rather than political issues. But, of course, in any litigation, your client may have concerns about things which have a wider ramification for them.
Mr Beer: Would you have – again, taking the words out of Jane MacLeod’s mouth – thought that the case held political significance?
Anthony Robinson: Well, to me, the word “political” suggests government issues, issues for politicians. If that’s the meaning of the term, I don’t recall that – I mean, I was aware that Post Office was owned by the Government, it was a Government company and, therefore, any embarrassment for Post Office would, I suppose, have potentially involved embarrassment for the Government as well but I don’t remember thinking along those lines at the time. I’m trying to reconstruct, rather than giving you a recollection of anything specific.
Mr Beer: Yes. Did the fact that the company was Government owned affect any of your decision making subsequently in the litigation?
Anthony Robinson: No.
Mr Beer: Did you, as you’ve suggested already, approach all other issues as if this was an ordinary piece of commercial litigation?
Anthony Robinson: I think so. I mean, I brought to the case the skillset that I had and my skillset is one of advising on and conducting substantial commercial litigation. I cannot recall an occasion in which I tailored any of the advice I gave or altered any judgement I made about the conduct of the case because Post Office was owned by the Government. I can’t think of an occasion when I did that.
Mr Beer: So the fact that the Post Office discharged functions of a public nature and might, for some purposes, be regarded as a public authority, didn’t affect any of the decision making?
Anthony Robinson: In relation to the matters on which I was instructed, the claims that were made were claims of a private nature. There was a claim, as I recall, for misfeasance in public office. You would have to take me back to the Letter of Claim to remind me but – certainly in relation to the common issues. In relation to the conduct of the litigation thereafter, as you’ve already reminded me, there was a Common Issues trial and then there was a Horizon Issues trial. Those trials were the primary focus of much of my attention during the relevant period and those – the issues raised by those trials were, as I recall, private law issues.
They didn’t – the fact that the Post Office conducted public functions didn’t – I don’t recall them impinging on any particular issue. If I’m wrong about that then I’m happy to be reminded but I don’t recall.
Mr Beer: Mr de Garr Robinson, I wasn’t thinking particularly in your approach to the narrow legal issues involved. It might be said by some that, when acting for an organisation which is a public authority or a quasi-public authority, whether or not dealing with issues that involve its status as a public authority or not, a different approach to litigation may be called for?
Anthony Robinson: I don’t believe that I did apply a different approach because Post Office undertook functions that you’ve described as public. I’m not clear which functions you’re referring to which might have led me to have taken a different view.
Mr Beer: So, for you, this was an ordinary piece of commercial litigation?
Anthony Robinson: Yes.
Mr Beer: Thank you. If we scroll down to 2, please:
“The [Post Office] Legal team … and myself will work with [Bond Dickinson]. As set out in the [General Executive] Board paper, and as discussed and approved at the [General Executive] meeting on 13 May, Tom Moran will be the internal ‘client’ for these purposes and his role will be to ensure that the overall strategy of the litigation protects [the Post Office], its network and attractiveness to future agents/postmasters. Both in this and in the management of the litigation, he will be supported by a Steering Group which will compromise representatives from across the business. At [General Executive] we discussed the following as proposed members: Tom Wechsler (representing you) [that’s representing the CEO, Paul Vennells], Angela van den Bogerd, Mark Davies, Patrick Bourke, a representative from Finance ([to be confirmed]), as well as Rod, myself, representatives from [Bond Dickinson] and when necessary, Tony Robinson [KC]. Key/strategic decisions will be discussed at [the General Executive].”
Did you sit on the steering group that’s referred to here?
Anthony Robinson: No.
Mr Beer: Did you attend the steering group as necessary, as is referred to here?
Anthony Robinson: I attended on occasions and I have dealt with those occasions in my witness statement. I don’t recall any other occasions in which I attended and, as you’ll see from my witness statement, there were very few.
Mr Beer: That was when you were called in, essentially, rather than you saying, “I need to be on the steering group on this occasion to contribute”?
Anthony Robinson: Absolutely.
Mr Beer: Thank you. Can we look at the next substantive event that occurred which is right at the beginning of June 2016. POL00140216. If we look at the bottom half of the page, please, we can see an email of 1 June 2016, from you to Andrew Parsons. Was he your main point of contact at Bond Dickinson?
Anthony Robinson: Yes.
Mr Beer: You say:
“The second box of files you sent to my chambers has just arrived … I’m still hard at work reading the two files you sent last week – it is much slower going than I expected.
“I already have lots of questions and will have more by the time my reading is all done.”
You talk at the bottom paragraph on that page about bringing a junior in, yes?
Anthony Robinson: Yes.
Mr Beer: Then, if we go over the page, please. You say:
“PS. In the meantime, I have a few questions …”
I ought to have said that Mr Parsons replies to this email and his writing is in the red.
In any event, let’s look at the questions you had. So this is 1 June. You were instructed no earlier than 20 May. So you’re eight/ten days into your period of instruction here, then you have these questions. I just want to look at the questions that you asked:
“1. Is it possible that there are cases where human errors at branches cause Horizon to record losses which do not really exist but for which [subpostmasters] are then held liable (eg because – perhaps as a result of the postmaster’s failure to do all the reconciliations he or she was required to do when required to do them, or perhaps because the helpline told the postmaster to accept an incorrect balance – it is not now possible to tell whether the loss is real? If so, does that raise a question as to the proprietary of our basic approach to recovering losses from postmasters and summarily terminating their contracts? If not, why not?”
Then if we scroll down, please. If we go to the bottom of the page, question 2:
“When did we become aware of the possibility of remotely altering branch data on Horizon, and why did we not become aware of it long ago? Is it the fact that we consistently claimed the opposite our fault, or Fujitsu’s? Does it mean that the expert evidence that we have previously relied on from Fujitsu was wrong/misleading? And have we already embarked on an exercise to determine whether this makes any or all of the previous convictions unsafe, as we did with the previous exercise with the previous revelation about the Fujitsu bugs? If not, why not?”
Question 3, further down:
“I understand that, for 42/60 days, postmasters had the ability on Horizon to check each and every transaction done from his or her branch in order to explain discrepancies. But what about discrepancies appearing after that period, eg as a result of late transaction corrections? On what basis do we claim that postmasters had the data they needed to explain those discrepancies, even though they could no longer do line by line transaction checks?”
Question 4:
“Why did we refuse to mediate some cases the Working Group recommended for mediation? Would I be right in inferring that in the working group we were in the minority of one and everyone else tended to take the Second Sight view of things?”
Question 5, over the page:
“I’m biased, but it does seem to me that Second Sight’s final report is one sided. How high can we/should we/do we dare go in our criticisms of Second Sight? This may depend on the extent to which the conclusions in its final report [are] dependent on fundamental errors that are demonstrably – what is your view about that? And what are those errors, exactly?
“6. In their final report, Second Sight claim that we stopped them completing their investigation, partly by not providing documents and info they wanted and partly because we cut their work short by requiring their report by 10/04/15. Did we know we were doing that but carried on regardless? If so, why?”
Now, you pose there number of very direct questions to Andrew Parsons –
Anthony Robinson: Yes.
Mr Beer: – that had become evident to you within a week or so of reading in?
Anthony Robinson: Yes.
Mr Beer: The questions that you posed, do you agree, were important, if not fundamental, to the merits of the Post Office’s defence in the litigation?
Anthony Robinson: I’d need to – I’d say the first – may I just look at that? What page number is this?
Mr Beer: You want to look in hard copy, do you?
Anthony Robinson: Yes.
Mr Beer: It’s the first file, and it’s tab B2.
Anthony Robinson: Thank you. That’s kind, thank you.
So the first question is a question about paper losses that were not real.
Mr Beer: Yes.
Anthony Robinson: I agreed that that was important in relation to the litigation. The second –
Mr Beer: Sorry, if we’re just going to do it one by one, just go back. If you look at the answer that you’ve got, would you agree that it’s a relatively cursory response by Mr Parsons?
Anthony Robinson: I would agree but my – it was a very early – to be fair to him, it was a very early stage in my instructions and I was still reading in. I suspect – I mean, I don’t know, but I suspect I wasn’t expecting some massive answer and detailed answer at that stage. So the first issue, yes I agree.
The second issue: when did Post Office become aware of the possibility of remote access? That was – I wouldn’t say that was a critical issue in the litigation; it went to the question of – possibly the question of limitation because there was an issue about deliberate concealment but it wasn’t one of the primary issues. It was an issue but I wouldn’t say it went to the heart of anything.
3 – 3 was –
Mr Beer: Just before you go back to 3, just look at 2.
Anthony Robinson: Yes.
Mr Beer: The second part of the question, you’d spotted that there had been an exercise to determine whether what Second Sight had discovered about the two bugs –
Anthony Robinson: Oh, yes. Oh, you’re right.
Mr Beer: – had led to a review of past convictions –
Anthony Robinson: Yes.
Mr Beer: – and you had spotted that the remote access point might mean that the expert evidence that had been previously relied on from Fujitsu was wrong or misleading, and you wanted to know whether there was an equivalent exercise, looking at the safety of past convictions.
Anthony Robinson: That’s fair, yes. Thank you for the – for drawing my attention to that. And then 3 –
Mr Beer: Again, the answer, relatively cursory, isn’t it?
Anthony Robinson: All of these answers were relatively cursory, I would say.
Mr Beer: Yes.
Anthony Robinson: Then 3, that was an important question. There was an answer to it, which was, as I understand it now, it’s probably what Andy Parsons says in his answer, that where late transaction corrections were suggested by Post Office, there would have been evidence attached to the suggestion and, if the postmaster wasn’t happy, then he would – could phone the helpline and get further – and speak to the relevant individual. Then – but it – 3 was a significant issue.
And then 4, why did – decisions made about mediation, I wouldn’t say that was an important issue for the litigation.
Mr Beer: Yes.
Anthony Robinson: 5, whether Second Sight’s report was one sided or not. I wouldn’t say that was an important issue for the litigation.
And 6, whether Second Sight was stopped from completing all their work. I wouldn’t say that was an important issue for the litigation, certainly insofar as my – insofar as it – the litigation that had been conducted by the end of the Horizon trial.
Mr Beer: Thank you. These answers which you’ve accepted, given the circumstances, were relatively cursory. You didn’t probe these in more depth at this stage because you were reading in?
Anthony Robinson: I think that’s probably right but I’d be reconstructing, rather than directly recollecting.
Mr Beer: If we just go back to the top of page 3, you had asked whether the client had embarked on an exercise on whether the remote access issue made any or all of the previous convictions unsafe, as had previously been done in relation to the revelation of the Fujitsu bugs. Just look at the answer that you were given. Thank you. It’s those five paragraphs in red at the top of the page there.
Mr Parsons doesn’t answer your question directly, does he, as to whether there had been an exercise conducted looking at the safety of the previous convictions in the light of the fact that the Fujitsu evidence may have been false?
Anthony Robinson: No. I see that.
Mr Beer: At this stage, I don’t suppose you remember whether he contacted you by any other means to speak about what I’m going to call the Gareth Jenkins issue, at this early stage, to give an answer to the very direct question that you’d asked?
Anthony Robinson: I have no recollection of discussing Gareth Jenkins at any time during this very early period. I would be surprised if I did but I have no direct recollection, so it probably would be wrong for me to speculate.
Mr Beer: Thank you. That can come down and you can put the file away for the moment.
Anthony Robinson: Thank you.
Mr Beer: By the time you were instructed in the High Court proceedings, I think you knew that the CCRC was also engaged in consideration of possible appeals to the Court of Appeal Criminal Division?
Anthony Robinson: That must be right, yes.
Mr Beer: Did you personally give any advice concerning the retention of documents obtained or generated in the litigation for the purpose of possible disclosure to the CCRC?
Anthony Robinson: No, I’m – I’ve never been involved in any criminal proceedings in my life. I’m a civil lawyer. My expertise and my experience is only in relation to civil litigation. I was aware that Post Office had instructed criminal lawyers, including a criminal silk, Brian Altman, as you say. I would have left questions of that sort entirely to that side of things. It was entirely outside my – the scope of my expertise.
Mr Beer: Were you conscious of the fact that documents obtained or generated in the course of the civil litigation might fall to be disclosed in criminal proceedings?
Anthony Robinson: I can’t remember thinking that thought. I’m not saying I didn’t but I just don’t remember that being something I considered.
Mr Beer: Were you aware of any other person in the civil counsel team giving advice about the retention of documents generated in the civil – or obtained in the civil litigation for disclosure to the CCRC?
Anthony Robinson: Not that I recall, no.
Mr Beer: Were you aware of the civil solicitors giving such advice?
Anthony Robinson: As I say, I simply – it wasn’t my role to be concerned with such things and I wasn’t – that would not have been something I would have been told about. Sorry, that’s a very conditional way of expressing myself. I think the answer to your question is no.
Mr Beer: Were you aware of the fact of any such advice being given by any of the criminal barristers instructed by the Post Office –
Anthony Robinson: I don’t think so no.
Mr Beer: – ie there are concurrent criminal proceedings, or possibly concurrent criminal proceedings, appeals to the Court of Appeal, although the documents we create or in some cases obtain in the civil proceedings may be protected by privilege in the course of the civil proceedings, the information in them may, in fact, be disclosable in the criminal proceedings?
Anthony Robinson: That’s not something I thought about.
Mr Beer: Were you aware of anyone giving advice of the substance or to the effect that I have just set out?
Anthony Robinson: Not that I recall, no.
Mr Beer: Thank you. I think, generally, your experience of the process of disclosure given by the Post Office in the Group Litigation was that, in terms of its quality, it was extremely poor and, professionally, for you, it was rather maddening; would that be fair?
Anthony Robinson: That would be a fair summary of my witness statement, yes.
Mr Beer: And, therefore, a fair summary of the facts?
Anthony Robinson: Yes.
Mr Beer: If we just look at your witness statement, then, please, can we start at page 48, please, and paragraph 133. You say:
“The story of [the Post Office’s] disclosure of KELs [Known Error Logs], is summarised [in Mr Justice Fraser] judgment. It is an extraordinary story.”
Then, if we go to page 50, paragraph 142, you say that, after the trial, it became necessary to give disclosure of, amongst other things, some 5,000 KELs that were discovered. That’s described by Mr Justice Fraser in those paragraphs of his judgment:
“It is another extraordinary story.”
Then paragraph 147, on page 51, you’re dealing here with PEAKs. You say you:
“… do not recall much about the PEAKs that were disclosed late. There were many occasions when additional Fujitsu documents were found after the relevant documents should have been disclosed. To say that these problems were frustrating would be an understatement, but this was not something that was within counsel’s control.”
Then same page, paragraph 149, you say:
“Paragraph 617 [of the judgment] indicates that, soon after these PEAKs [the ones you were discussing earlier] were disclosed, it was revealed that one of them was dated 21 August 2019. It was thus clear that, on instructions, I had unintentionally misled the court. As will be clear from the rest of this statement, this was not the first occasion on which such a thing happened, and nor was it the last. It is a horrifying experience [ie unintentionally making a misleading statement to the court].”
Then, lastly, paragraph 155 on page 52:
“During the trial, a question arose as to [the Post Office’s] failure to disclose some Royal Mail audit reports that the claimants wanted. On instructions, I informed the court that the Royal Mail had refused to produce these reports to [the Post Office] for onward disclosure. I then discovered that the Royal Mail had not even been asked to provide them. When I discovered this, I made haste to correct the position and to apologise. Not surprisingly, [the Post Office] was ordered to provide a witness statement explaining how this had come about.”
I’m not going to go to each of these disclosure issues and explore the facts underlying each issue but instead deal with the matters generally.
Would I be right in thinking that the whole process of representing the Post Office, in terms of the disclosure exercise, was a very uncomfortable experience for you?
Anthony Robinson: Towards the end, when the errors became apparent, if I can call them errors, yes, it was – very much so. In the early stages, at CMCs, and so on, when the parties were seeking to agree orders for disclosure and the court then made orders, I wouldn’t – I wouldn’t have been frustrated or found that difficult then. But it’s later on –
Mr Beer: Because you didn’t know the true position then?
Anthony Robinson: Yes.
Mr Beer: When you subsequently found out what you were told was the true position – and it happened, I think, on more than one occasion, indeed, on a repeated basis – it must leave you not trusting your clients or your solicitors?
Anthony Robinson: I wouldn’t – the – there are two categories – I’m going to give you a long, complicated answer. I’m sorry not to be clear. I know it would be easier for you to have a clean one.
There’s a question of trusting my client and then there’s a question of trusting my instructing solicitors. In relation to trusting – in relation to trust, a significant portion of these problems were problems caused by difficulties at Fujitsu. I’m using a deliberately portmanteau term because I really don’t understand what those difficulties were.
Mr Beer: Just stopping there, who told you that the responsibility rested with Fujitsu?
Anthony Robinson: For some of them, it was fairly obvious, PEAKs discovered late, and so on. That would have been – I feel sure that that would have been as a result of Post Office, or rather WBD, discovering that Fujitsu had had categories of documents that weren’t previously known about.
Mr Beer: Did your enquiries, did your tentacles, stretch down into finding out, for example, whether the Post Office had asked Fujitsu for those documents and, if so, when, and in what terms they’d asked and, if so, what the reply was and in what terms?
Anthony Robinson: I don’t recall making – I don’t recall conducting investigations into what had – I didn’t conceive it to be my job to conduct detailed investigations into what had gone wrong, I would have been told that new PEAKs had been produced by Fujitsu and that they therefore needed to be disclosed quickly. My apprehension would have been – I think I would have been told that it was a result of Fujitsu not performing the disclosures, the searching exercise, the collection exercise, properly not being aware of pockets of documents in various parts of its system and I would have taken that at face value. I wouldn’t have – I wouldn’t then have probed for further information.
In relation to some of these issues, I appreciate there are lots of different examples, not all of them of the same nature but, in relation to some of these problems, witness statements would have been produced by Andy Parsons. I think the court would have – did require on occasion some witness statements, where explanations would have been given. I’m sure I would have asked questions and I’m sure I would have been anxious to know what I wouldn’t have sought, for example, to test what I’d been told in relation to contemporaneous documents.
Mr Beer: So, in your witness statement, you, in a number of places, blame Fujitsu for the disclosure issue. That’s based on what you were told by your solicitor or your client?
Anthony Robinson: Yes.
Mr Beer: Thank you. It wasn’t your function to test that, to see whether what you were being told was itself true, ie that this disclosure issue arose as a result of a fault by Fujitsu?
Anthony Robinson: I’m sure I would have wanted – every time it occurred I would have wanted to know what occurred but I wouldn’t have conceived it to be my function to challenge and insist on evidence supporting what my instructions were on that point.
Mr Beer: Thank you. Can we just look briefly at the KEL issue, the Known Error Log issue, and do so by reference to your witness statement. Can we turn up, please, page 48 and, in particular, between paragraphs 134 and 137, you deal with the KEL story, which you say is extraordinary. You tell us that your:
“… original instructions were that the KEL database … was irrelevant and not within [Post Office’s] control. Its irrelevance was asserted more than once in [Womble Bond Dickinson’s] correspondence with Freeths. And in the Generic Defence and Counterclaim, we [that’s you and Owain Draper] pleaded both that it was irrelevant and that it was not in [Post Office’s] control.”
Those were your instructions, you note that Mr Parsons made a witness statement for that CMC which maintained the points and that that reflected your understanding at the time.
Then 135, taking your facts from the judgment, you say that:
“… at the CMC, [you] suggested that the parties’ experts be permitted to inspect the Known Error Log so that they could determine whether it was relevant. [You] do not [remember] making that suggestion but [you] do remember the outcome: the experts determined that the Known Error Log was definitely relevant”, and you say that you were “very surprised” when you learnt about this.
Then you say:
“My previous instructions would have been based on what Fujitsu had told [the Post Office]. It was hard to understand how Fujitsu came to give such a misleading account on such a fundamental point.”
Were you privy to the discussions between the Post Office, Womble Bond Dickinson and Fujitsu about the irrelevance of the KEL database and the fact that it was not within Post Office’s control.
Anthony Robinson: No. The first point would have been something that would necessarily, I think, have been discussed between WBD, POL and Fujitsu. The second point was a point that would have been dependent upon the contract that existed between Post Office and Fujitsu. The – I would have expected WBD to look at that contract in order to confirm that it wasn’t in Post Office’s control. In other words, that it didn’t have the right to inspect or take copies and I believe – I may be going too fast, faster than you want me to – but I believe that I was provided with some documents quite recently which included an email in which I said something like, at the time, earlier on in the story, “We need to be very clear that this isn’t in Post Office’s control”, in other words, “We need to establish clearly the control point”.
Mr Beer: Let’s look at that email.
Anthony Robinson: Oh, right.
Mr Beer: WBON0000505.
Anthony Robinson: Is that in the core documents or the additional documents –
Mr Beer: The additional documents at tab E35.
Anthony Robinson: E35.
Mr Beer: But it’s on the screen.
Anthony Robinson: Oh, right.
Mr Beer: It’s your email to Mr Parsons of 14 September 2017. If we just scroll down a little bit so we get the full email on the page. Thank you. You say in the second paragraph:
“I’m a little concerned that we may be being into their hands by invoking the [Civil Procedure Rules part 31.14] application for inspection of the [Known Error Log]. Unless we play our cards right, this could give them the chance to portray us as unnecessarily (and therefore suspiciously) defensive, obstructive and possibly even evasive about the KEL.
“Could you send over [a letter, please] – if their summary of it is fair (which I doubt) I would like to understand why we seem to have claimed that the Known Error Log is not a document, when it plainly is, and why we don’t seem to have mentioned that it is not in our control, which seems … to be a critical point.”
Then the third paragraph, which is the one you mentioned a moment ago, Mr de Garr Robinson:
“On the question of control, we need to be absolutely clear that we have no right to inspect or take copies of the [Known Error Log], either under the Fujitsu contract or under the law of agency … and that there is no practice under which we are habitually or usually allowed to inspect documents of this sort if we want to see them.”
Why was it that you had previously thought that Known Error Logs were not in the Post Office’s control?
Anthony Robinson: I would have been in – that would have been my instruction. It would not have been something I would have thought up for myself.
Mr Beer: No and that would have come from Womble Bond Dickinson, would it?
Anthony Robinson: Yes.
Mr Beer: This is you saying, “Well, hold on, we actually need to look at the contract to work out whether that’s true or not”?
Anthony Robinson: Yes.
Mr Beer: The point about the KEL not being a document, do you know who raised that?
Anthony Robinson: I haven’t – I don’t – I’m – I don’t recall this exchange. It refers to a letter from Freeths of 1 September –
Mr Beer: Yes.
Anthony Robinson: – which, on my reading, as I read this email, I appear to have read it as suggesting that WBD’s letter, earlier letter, had claimed that the Known Error Log was not a document, and I’m expressing doubt that we can possibly have said that because –
Mr Beer: Because that would be absurd.
Anthony Robinson: Yes, because it was plainly wrong. But I don’t know whether that was said in – what I’m asking in that email is “Did we really say that?”
Mr Beer: Did you get the impression that the Post Office was straining not to disclose the Known Error Log?
Anthony Robinson: I don’t – I can’t – I don’t have a specific recollection of this exchange, this email. So if I were to answer that, I’d be reconstructing on the basis of inferences drawn from this document, which you’re probably in as good a position as I am to make but I –
Mr Beer: Just taking a step back, Mr de Garr Robinson, the document contents aren’t relevant, “It’s not a document, it’s not within our control”, all three things seem to have been asserted and all three things are wrong.
Anthony Robinson: Well, I’m doubting that one of those things was asserted and I don’t know whether it was or not. The other two things, at the time, I didn’t know that they – well, they were wrong. My instructions –
Mr Beer: I’m not suggesting that you did for –
Anthony Robinson: No, but you’re asking about my mental state at the time. My mental state at the time was that I believed my instructions so I wouldn’t have – I don’t think I would have inferred from my instructions that there was any particular attitude on my client’s part.
Mr Beer: What about as events moved on into 2018 and 2019, when you actually got to look at some of the Known Error Logs yourself in the course of the litigation? Did you ever think, “Goodness me, how could we assert that these aren’t relevant”?
Anthony Robinson: The answer to that question may surprise you somewhat, but that would have been two years later. The – this is an email exchange – oh, no, I’m wrong. It’s in 2017, not 2016. The –
Mr Beer: Were you essentially going to say the caravan had moved on?
Anthony Robinson: I think what I was going to say was it’s a funny thing but, when you’re involved in large and complex litigation, the litigation tends to operate in phases. You – you’re very intent upon one particular point or a series of points at one time and then you go away and work on another case, you do something else, you work on three or four other cases and then you come back to the first case and you deal with the next problem that’s arisen or the next hearing, and so on.
And so what can sometimes happen is that you – you’re dealing with the issue that you’re facing at the moment without remembering precisely what you’d been told and how the matter had come up on previous occasions. Certainly in relation to the discovery that the Known Error Log was highly relevant, that would, I would have – I imagine I would have – I remember being surprised. I forget what your question is, but I would have been concerned also that such a fundamental point could have been so wrong.
That would – I imagine – I’m afraid I’m reconstructing – but I imagine that the focus of my concern would have been Fujitsu, rather than Post Office.
In relation to control, control didn’t really come up again until after the trial and so, during 2018, which is I think the period you’re asking me about, I don’t think I’d have considered control further.
Mr Beer: Thank you. That document can come down.
Can we turn to the Swift Review and its recommendations, please, and we’re now going back to mid-2016 –
Anthony Robinson: Right.
Mr Beer: – by looking at POL00242402. Thank you. Turn to page 4, please. There’s a long email from Mr Parsons to you and others of 8 June 2016, so relatively early in your instruction, so a couple of weeks into your instruction. Mr Parsons, the partner at Womble Bond Dickinson, says:
“Tony, I met with the [Post Office] litigation steering group yet. Their approach to the [Jonathan Swift Queen’s Counsel] recommendations has shifted slightly.
“Tim Parker, [the Post Office’s] Chairman, feels that he has made a commitment to Baroness Neville-Rolfe (Minister at [the Department of Business, Innovation and Skills]) to follow through on the [Swift] recommendations unless he is presented with a persuasive case not to do so.
“[The Post Office] are therefore looking to us (and quite frankly you with your magic QC seal!) to give them some reasons for why Tim completing the [Swift] recommendations would be ill advised.
“Just to recap, the recommendations we are talking about are:
“1. Investigation into remote access/meddling with Horizon data (initially it was proposed that this was done by Deloitte).
“2. Investigating the suspense account (again to be done by Deloitte).
“3. Reviewing the prosecutions where theft and false accounting were charged to confirm that there was sufficient evidence to support the theft charge (Brian Altman’s review).
“My view is that these recommendations plainly overlap with issues in the litigation. I can immediately see three reasons why Tim should not ‘conduct’ the above investigations:
“1. We, the litigation team, will need to investigate these points (in some form) in any event. We will probably need to do this on a different timetable to Tim (we having a degree of time pressure; Tim under less time pressure). We will also probably require a more robust investigation given that these points could be tested in court. Two parallel reviews would be wasteful and could cause unknown complications should they reach contradictory results.
“2. If these investigations are conducted by Tim there is a greater risk that this work is not privileged (the investigations not being conducted for the purposes of litigation but for some other purpose). It would be much safer for these investigations to be conducted as part of the litigation.
“3. Even if the risk in 2 above could be guarded against (eg by classing it as part of the [Swift] ongoing advice to [Tim Parker] – questionable???), I cannot see how [Tim Parker] could disclose the results of these investigations to [the Department of Business, Innovation and Skills] without a risk of waiving privilege (particularly where there is a possibility that [Baroness Neville-Rolfe] may then speak to James Arbuthnot or the [Post Office]/BIS could be subject to a Freedom of Information request).
“If we can give [Post Office] a piece of advice that says that [Parker] should shop any further work, [Parker] would then feel empowered to say to BIS that, on the basis of legal advice, he is ceasing his review. I’m conscious this feels somewhat unpleasant in that we are being asked to provide political cover for [Tim Parker]. However, putting aside the political background, shutting down [Tim Parker’s] review is, in my view, still the right thing to do.”
Just stopping there, and we will come to your reply in a moment, the situation is that a silk, a leading public law silk at the time, Jonathan Swift, had conducted a rather exhaustive review on behalf of the Chairman of the company and he had made a series of recommendations and three of them are highlighted here, yes?
Anthony Robinson: Yes.
Mr Beer: Those recommendations had been made, I think you will have known, in part to ensure the correction of any potential miscarriages of justice?
Anthony Robinson: Yes.
Mr Beer: The Chairman of the company, Tim Parker, wanted to do those things?
Anthony Robinson: Apparently, yes.
Mr Beer: But POL, whoever that is, wanted the lawyers to come up with reasons for not doing them –
Anthony Robinson: Yes, so it would seem.
Mr Beer: – saying that they would be ill advised?
Anthony Robinson: Yes.
Mr Beer: Who did you understand “POL” to be? The Chairman of the company wanted to do things that a leading silk had recommended were relevant to discovering potential miscarriages of justice but the Post Office did not want to?
Anthony Robinson: I don’t recall this email exchange, so I’m afraid I can’t answer that question from my recollection and I’m afraid nor can I reconstruct an answer from what I know now. I have no idea why there’d be two POLs, as it were, a Tim Parker POL and a different POL. I have no idea what that’s about.
Mr Beer: But, anyway, some part of the company didn’t want to do, you were told in this email, what the Chairman wanted to do, which was to enact some – carry into effect some legal advice, the purpose of which was to discover any potential miscarriages of justice?
Anthony Robinson: So it would seem, yes.
Mr Beer: The second reason that Mr Parsons gave – and he’s in favour of the idea, reading this email, yes –
Anthony Robinson: So it would seem, yes.
Mr Beer: – ie Tim Parker needs to stop his work, yes?
Anthony Robinson: Yes.
Mr Beer: The second reason is given: if Tim Parker does this work, there’s a greater risk. It isn’t privileged:
“It would be much safer for these investigations to be conducted as part of the litigation”, he says.
Did you understand who it would be safer for?
Anthony Robinson: I don’t recall this email but I imagine I would have understood it to mean safer for the party who had the right to privilege, namely Post Office.
Mr Beer: Hmm. That implies, doesn’t it, it necessarily means that, if the results of the investigation are negative to the Post Office interests, it’s safe because they will be protected from privilege and we needn’t reveal them?
Anthony Robinson: That’s what privilege means. That’s always the position with privilege. Privilege is quite a fundamental principle that protects the interests of parties in civil litigation and that is the effect of it, yes.
Mr Beer: But this contemplates it being safe because it may be that the results of these three pieces of work are negative. They will harm the Post Office’s interests and, therefore, it’s safe if they’re protected by privilege because we won’t have to tell anyone about them?
Anthony Robinson: Yes, although I’m not sure that’s true of the criminal work. I mean, if – I’m not a criminal expert but, if a view had been taken as to the third piece of advice that Andy Parsons refers to, there may have been an obligation to disclose regardless of privilege.
Mr Beer: That’s why I asked those earlier questions about the extent to which you knew what was being done by any criminal lawyers, or criminal solicitors, for example when an issue like this came up, whether you were applying your narrow civil litigator’s focus to the question?
Anthony Robinson: Yes, and I was.
Mr Beer: Let’s just look at this email first to see what you make of it. Would you agree that this approach proposed by Mr Parsons is classically advice given by a civil litigator, “I’m looking at this with my civil litigator’s hat on, I have a narrow perspective of what’s best for the Post Office in the litigation”?
Anthony Robinson: Absolutely.
Mr Beer: That, of course, is not the only perspective, is it, for a company such as this?
Anthony Robinson: Absolutely and, to the extent there are other perspectives, then other advice needs to be taken.
Mr Beer: Well, was it made clear, to your recollection, that, when the civil lawyers advised, they expressly raised the fact, “We’re looking at this with a specific hat on, we’ve got a narrow perspective, what’s good for the Post Office in the litigation but you, Chairman, should look much more broadly than this. What might be safer for us, isn’t really safe for the people whose lives are affected by potential miscarriages of justice”?
Anthony Robinson: I’m afraid I have no idea. I don’t recall this exchange at all and – but I wouldn’t have been aware of what was then said directly to Post Office or wasn’t. I just wouldn’t have known.
Mr Beer: Would you agree that it’s an obvious point that what’s good for the Post Office in the litigation is not necessarily good for the Post Office or indeed thousands of subpostmasters, or the public, out in the real world?
Anthony Robinson: Yes, I suppose that’s probably right, yes.
Mr Beer: Can we look at your reply, please, by going to the foot of page 2. Thank you. So same day, 8 June, replying to Mr Parsons and you pick up what he said in his last paragraph, which, just to remind us, had been “It feels somewhat unpleasant that we are being asked to provide political cover for Tim Parker”. You say:
“I’m not here to provide political cover, but I am concerned that the client should protect its interests as a defendant to this substantial piece of litigation.”
So, again, that’s a shorthand way of saying, “I’m looking at this through the narrow perspective of a commercial litigator and what’s in the interests of this defendant in this litigation”?
Anthony Robinson: Yes, it’s also – as I say, I don’t remember this email exchange but I know my style, and for me to say I’m not here to provide political cover, I would have written that – usually I try to be diplomatic and I would have written that I think because I wanted to make it clear I’m not interested in your –
Mr Beer: Yes, it’s a bit terse, isn’t it?
Anthony Robinson: Your political – your shenanigans. I’m not interested in that at all. What I am concerned about is the client’s interests as a defendant to a substantial piece of civil litigation.
Mr Beer: The context in which that sentence arose was Mr Parsons saying, “This feels somewhat unpleasant in that we are being asked to provide political cover for Tim Parker, the Chairman”.
Anthony Robinson: Yes, and I’m saying I’m not interested in that –
Mr Beer: No.
Anthony Robinson: – don’t even in – don’t drag me into it. I’m interpolating but, you know, don’t do that.
Mr Beer: “Don’t use me, don’t deploy me for that purpose”?
Anthony Robinson: Yes.
Mr Beer: The question, or the way it was put by Mr Parsons, would you agree, suggests that it wasn’t Tim Parker, on the one hand, wanting to go ahead with the Swift recommendations and this other part of Post Office not wanting to go ahead with them, providing political cover for Tim Parker makes it sound as if he doesn’t want to go ahead with them and that the lawyers were being brought in to provide support, doesn’t it?
Anthony Robinson: It’s quite possible but it’s just interpreting an email, that you’re in as good a position as I am to do. I don’t have a recollection.
Mr Beer: You carry on:
“As you know from our discussion yesterday, the consideration which seems to me to be overriding is privilege point [number 2]. Your point numbered 3 involves some murky questions to which I don’t have an immediate answer (remember all those difficult cases in Three Rivers regarding the Bank of England’s inquiry to the BCCI scandal?) …”
That’s about claiming legal advice privilege as an adjunct to the Tim Parker review:
“… but I strongly suspect that the factual investigations we are talking about would not be the subject of any legal advice privilege and so would not be privileged in his hands in any event. But is that something we even need to consider – even if they were privileged, what would be the point of undertaking dual investigations into the same things anyway?
“All of this assumes that we will be carrying out the recommended investigations. But what [if] we don’t [I think that should have an ‘if’ in it]? Yesterday, you suggested that the litigation team may be instructed not to do a full investigation of the remote access or suspense account points because the cost is disproportionate in the context of the claims being brought. If so, where would this leave [Tim Parker] – back at square one? Putting the point another way, if our advice is that he should not do the investigations he was advised to do because this is something the litigators should do, and if it is then decided that the litigators will not do the investigation he was advised to do, would he then have to do them himself, or instruct us to do them, after all.”
Just summarising that, because it’s quite dense, you were saying, “Well, hold on, I’ve had some other information that we may not be doing two of these three things in the litigation anyway. So all of this debate about whether we should do them in the litigation or whether Tim Parker should cause them to be done outside the litigation may be irrelevant, because I’ve been told that we’re not going to get on with two of them anyway”; is that a fair way of describing it?
Anthony Robinson: That we might not –
Mr Beer: Yes.
Anthony Robinson: – get on to them anyway? Yes.
Mr Beer: Can we go on to how Mr Parsons responded, which is bottom of page 2, top of page 3. If we get the bottom of page 2, so we can see. Response, same day:
“Tony
“We can only say we might cover the [Swift] recommendations through the litigation process but this will depend on how the litigation process goes. [The Post Office] will just have to accept that risk – the work is either required for the litigation or it is not. We can’t artificially squeeze work under the litigation umbrella just to cover off a political issue (or at least that is my view …).
“The critical point is preserving privilege and the risk of [Tim Parker] doing further potentially unprivileged work. This alone strikes me as a good enough reason to shut [Tim Parker] down.”
In your view, was the critical point the preservation of privilege or would you accept that that’s perhaps turning the world upside down, putting privilege as the central point?
Anthony Robinson: From my perspective, the – as the barrister acting in a civil claim, my concern was to preserve privilege in relation to that claim.
Mr Beer: In the course of this discussion, we don’t see any reference to the fact that this leading public law silk had recommended doing three things that have the focus of uncovering potential miscarriages of justice. The Chairman needs to consider whether that’s the right thing. Is that because, again, you were looking at this with the narrow civil litigator’s hat on?
Anthony Robinson: Yes.
Mr Beer: Hence, the critical point for the pair of you is just about maintaining privilege in civil litigation?
Anthony Robinson: Yes, so far as I can tell from this email exchange, yes.
Mr Beer: Yes. Did you agree with the sentiment that the preservation of privilege alone is a good enough reason to shut the Chairman down?
Anthony Robinson: I wouldn’t have put it that way, I don’t think. I would have considered that, given my focus as a barrister acting in a civil claim, it was important to retain the – a litigant’s right to privilege.
Mr Beer: Can we look at how you reply to this, then, please, by scrolling up to the bottom of page 2. You say:
“Quite right. What I meant to do with my second paragraph was raise the question of whether the present context – including Swift advising [Parker] that these investigations be undertaken, [Parker] naturally doing what he’s been advised to do etc – might mean that the client is less deterred by cost and difficulties associated with these investigations than it might otherwise have been. If so, I would welcome it. From a pure litigation perspective, these investigations are highly desirable – the less evidence we have to rebut the suggestion that remote data tampering at our/Fujitsu’s end could be responsible for inflicting any false losses on any claimants, the more awkward our position is on this difficult point (a point which provides a basis of allegations of deceit, for arguments that claims are not time-barred because of deliberate concealment and for arguments that monthly accounts signed by subpostmasters should not be given significant evidential weight).”
So, essentially, you were saying there in this email you want the investigations to be undertaken somehow, because you want to know the true answer?
Anthony Robinson: Yes, and I’m saying, in that context, the Swift recommendations are a good thing because they increase the incentive of Post Office to do them, even though they would cost money.
Mr Beer: You were saying you didn’t want Mr Parker’s investigations to be stopped on the grounds that they will be undertaken for the purposes of litigation and then that doesn’t happen?
Anthony Robinson: Yes.
Mr Beer: Mr Parsons, however, was, would you agree, rather straightforwardly suggesting that the legal proceedings should provide cover for not taking the course recommended by the Swift Review?
Anthony Robinson: I think – I’d need to look back but I think he was in his first email to me, I think – my recollection is that in his second email, the one responding to my reply, he adopted a slightly different tone. But I’m – but I don’t have it in front of me, so I can’t –
Mr Beer: That’s the top of page 3. Scroll down. Thank you. That’s the one you’re referring to?
Anthony Robinson: Yes. I mean, he says the critical point is preserving privilege and the risk of Parker doing further potentially unprivileged work –
Mr Beer: And the next sentence too.
Anthony Robinson: Well, I suppose, yes, I see what you mean. The first sentence I completely – I would have agreed with. The second sentence, “This alone strikes me as a good enough reason to shut TP down”, that does sounding a bit political I suppose, yes, which I wasn’t – from this email, it’s clear I wasn’t interested in.
Mr Beer: I mean, given the significance of the recommendations and their object being potentially to uncover miscarriages of justice, shouldn’t they have been carried out, in any event, as quickly and as transparently as possible?
Anthony Robinson: That would be a matter – I’m sorry to look as if I’m trying to kind of deflect any kind of blame but that would be a matter for criminal lawyers, not something that was within my – within the scope of my instruction.
Mr Beer: If we carry on in the exchange, go to the foot of page 2 – sorry, the foot of page 1. Thank you. Mr Parsons’s reply to you, if we scroll down on to page 2:
“I think that [the Post Office] will stump up the money to pay for the investigations so long as they see the value in doing so. We could tackle these three lines of enquiries as follows:
“1. Investigation into remote access/meddling with Horizon data (Bond Dickinson do this rather than Deloitte as it’s mainly making factual enquiries of [Fujitsu] – this will save some money as [Bond Dickinson] is cheaper than Deloitte).
“2. Investigating suspense account (get this done by Deloitte as this is a proper accounting issue).
“3. Reviewing the prosecutions where theft and false accounting were charged to confirm that there was sufficient evidence to support the theft charge. There are 9 claimants in the litigation that fit this profile. We get [Brian Altman] to review these 9 cases (one is done already – Jo Hamilton). [The Post Office] have confirmed me already they are happy to pay for this work.
“This approach strikes me as proportionate but also should give us a high degree of assurance on these points. This is however subject to us keeping the work under review – if the litigation changes, the approach might change.
“The above work largely duplicates what [Tim Parker] would have been doing. Add in the privilege risk and there are good grounds to shut down [Tim Parker’s review] and just do the … work under the litigation umbrella.”
I think you agreed, in the event, that, from the narrow civil litigation perspective, this was the appropriate way forwards?
Anthony Robinson: Yes, the work should be done but it should be done with the protection of litigation privilege.
Mr Beer: Can we look, please, at the bottom of page 1. Your reply.
“Very good.
“Fingers crossed we get useful evidence from Fujitsu on balancing transactions from Horizon inception and Fujitsu’s (non-)use of its privileged access rights to manipulate branch data from Horizon inception.
“Might we be instructing Deloitte as our expert witness in due course? If so, this could affect the way we instruct them and how closely we work with them.”
This exchange happened all on 8 June 2016, right up until the time we can see there, just after 5.00. We know that there was a conference between you and Mr Parsons on 9 June 2016, the next day.
Anthony Robinson: Yes.
Mr Beer: We don’t have an attendance note of that conference. I don’t suppose you remember whether a final position was reached at that conference?
Anthony Robinson: I have no recollection of what was said at that conference. I have no recollection of this email exchange. In some of my answers I may not have – I may have talked as if I did but I had no recollection. I’m just working on the basis of the documents I see here.
Mr Beer: Can we look, please, at what Mr Parsons says about this. He’s going to give evidence to us later in the week. WITN10390100.
Anthony Robinson: Okay.
Mr Beer: Then it’s page 238. He says:
“I do not recall the specifics of the discussed instruction about the implementation of the Swift Review at the conference on 9 June …”
Then if we go to 420.
Anthony Robinson: Can I just read the rest of 419, please?
Mr Beer: Yes, sure.
Anthony Robinson: I don’t mean to be difficult, I just …
Mr Beer: Yes.
Anthony Robinson: Oh, I see that he refers to a document in which I apparently say, “do all the Swift actions now and thoroughly”.
Mr Beer: Yes.
Anthony Robinson: I’m sorry. 420, yes, carry on.
Mr Beer: “My email records show that I had a more detailed exchange …”
So that’s the next day, after 7 June?
Anthony Robinson: Oh, yes.
Mr Beer: “… with Tony Robinson … prior to our conference the following day. During that exchange I made the following points.”
Then, after 420, and then point 1, and then over the page, point 2, point 3 – scroll down, scroll down, keep going – point 4, point 5, point 6, point 7.
Anthony Robinson: I’ve not seen this document before.
Mr Beer: No, I understand. In those subpoints, Mr Parsons summarises the email exchange that we have just looked at.
Anthony Robinson: Right.
Mr Beer: I am not going to read it out or ask you to read it, because we’ve actually read the chain ourselves, a moment ago, and I’m not going to look at how Mr Parsons compartmentalises it, uses quotes to make a point, use extracts to make a point and adds commentary as he goes along –
Anthony Robinson: Yes.
Mr Beer: – because that’s not going to assist us, we’ve looked at the exchange itself. But can we go forward, please, to paragraph 421 on page 241, thank you. He says:
“The views [that you] expressed in the course of this email exchange were substantially the same as mine. He agreed that he was ‘concerned that the client should protect its interests as a defendant to this substantial piece of litigation’, in relation to which he thought the ‘overriding [consideration was] the privilege point’.”
I think that’s correct, is it?
Anthony Robinson: I think so too.
Mr Beer: “At the same time, he strongly agreed with the approach of subsuming the investigations recommended by Jonathan Swift into the Group Litigation workstreams: ‘From a pure litigation perspective, [he’s quoting] these investigations are highly desirable’”, et cetera.
Were you doing that by the quote that is set out there, “strongly agreeing with the approach of subsuming the investigations into the Group Litigation work streams”?
Anthony Robinson: I think that would be one way of describing – I was saying that, for the purposes of the litigation, it would be highly desirable to do all this work. I may not be grappling with your question or understanding your –
Mr Beer: It’s a tiny point. The extract that he’s cited there is you saying the desirability of conducting the investigations full stop; they need to be done, these investigations. Not, by this is extract, saying they need to be done in the litigation?
Anthony Robinson: I’m saying, from a pure litigation perspective, these investigations are highly desirable.
Mr Beer: Yes.
Anthony Robinson: I’m really – I’m afraid I’m – I’m probably not listening carefully enough to your question. You’re making a subtle distinction which I haven’t quite grasped.
Mr Beer: Yes, if we go back to the email exchange.
Anthony Robinson: I’m so sorry, I’m not trying to be difficult.
Mr Beer: No, that’s all right. If we go back to the email exchange, POL00242402, bottom of page 2. This is the email, your email, in which that quotation appears. You can see it from halfway through, yes?
Anthony Robinson: Yes.
Mr Beer: By this email, you were saying, weren’t you, that it’s important that the investigations are carried out, and it’s important to the outcome of the civil litigation that they are carried out.
Anthony Robinson: Yes, I’m saying it’s highly desirable for the purposes of the civil litigation that they be carried out.
Mr Beer: Ie that we find out the true answers?
Anthony Robinson: Yes.
Mr Beer: You were saying this in the context of having been told “We might not do these things”?
Anthony Robinson: Yes, I’m responding by saying I think we should. I’m interpreting an email I don’t remember but that’s how I would summarise my understanding of these documents.
Mr Beer: You weren’t saying by this email, “It’s important that we do them within the litigation”, ie protected by privilege?
Anthony Robinson: Oh, I see what you mean. You mean artificially doing them –
Mr Beer: Yeah?
Anthony Robinson: – even though the litigation doesn’t require them?
Mr Beer: Yes.
Anthony Robinson: No, I wasn’t – I don’t believe I was saying that. That’s not how I read what I say there.
Mr Beer: Thank you. Then just lastly on this topic can we look, please, at POL00243170. If we look, please, at page 2., at the foot, please. This is an email exchange not concerning you. It’s 11 July, Jane MacLeod to Rodric Williams, Patrick Bourke and Mark Underwood, and she says:
“Here is my starter for 10 …”
Then if we look at the third, fourth and fifth bullet points:
“As set out in my letter … Jonathan Swift identified areas where he believed further work could be beneficial and [the Post Office] commissioned further work to explore those. Some of these areas are necessarily complex and are dependent on third parties (such as Deloitte and Brian Altman) to deliver. While progress had not been as fast as I had hoped, good progress was being made in all areas.
“However, in April [the Post Office] was notified that proceedings had been commenced against it in the High Court on behalf of [about] 92 postmasters … While the proceedings have not been formally served on [Post Office], the legal advisers for both sides are in discussion to better understand the nature of the issues. At this stage there is still no information available [to us] as to quantum …
“[Post Office] has briefed lawyers and external counsel [including you] to advise on the claims.”
Then this:
“[The Post Office] has received very strong advice from its external legal advisers that the work being undertaken under the aegis of my review should come to an immediate end, and instead these issues should now be addressed through equivalent work taken forward under the scope of the litigation.”
Is that an accurate summary of the advice that you had given, that the work being undertaken by Jane MacLeod to take forwards the Swift recommendations to the Chairman should come to an immediate end?
Anthony Robinson: You may be seeking to make a subtle distinction again. I think it’s a fair summary that I took the view that, for the purposes of the civil litigation, the relevant work should be undertaken and that – but it should be undertaken for the purposes of the civil litigation. I wasn’t concerned with the distinction you made in your previous question about – which I now find difficult to replicate or summarise. I hope that’s a clear answer.
Mr Beer: Yes.
Anthony Robinson: I’m not trying to be evasive.
Mr Beer: Can we go, lastly on this topic, to POL00006601. This is a letter from Mr Parsons to Post Office, of 21 June 2016. This is, I think, the best record we have got of what happened at the conference on 9 June. He says in the second paragraph:
“In late 2015, Tim Parker … began a review to consider whether any further action [should] be taken by Post Office to address the claims raised by postmasters in relation to [Horizon]. Jonathan Swift was engaged by Post Office to inform the Chairman on the review. His mandate was to conduct an independent investigation on the work which had been done already … and to provide advice as to whether there were any further steps that might reasonably be taken by Post Office.
“In February 2016, Mr Swift provided his advice and made eight recommendations for further work that could be undertaken. We understand that Post Office is considering those recommendations: some have been implemented already; others are under way but not yet complete.
“In April 2016, the … claim was issued by 91 postmasters … The subject matter of the Group Action overlaps with the scope of [Parker’s] review and the subject matter of the recommendations made by Mr Swift.
“In May 2016, Post Office instructed [you] to advise on the Group Action. As part of his instructions, Mr Robinson reviewed the advice and recommendations put forward by Mr Swift.”
Just stopping there, is that right: that you reviewed Jonathan Swift QC’s advice and his recommendations?
Anthony Robinson: I am – in the light of the emails that I’ve seen, I’m sure I would have done.
Mr Beer: “At a conference [this is the conference on 9 June] attended by Post Office’s Legal Team … Mr Robinson was asked to advise on, amongst other matters, whether Mr Parker should continue his review and/or implement Mr Swift’s recommendations.”
The top of the next page.
“Mr Robinson’s ‘very strong advice’ was that Mr Parker’s review should cease immediately.”
Does that accurately record the advice you gave?
Anthony Robinson: I don’t recall 9 June. As I understand what I was saying on the 8th, in the email exchange, I was saying that this work should be done but it should be carried on under the protection of litigation privilege.
Mr Beer: “Given the overlap of issues between Mr Parker’s review and the Group Action, [you] advised that it would still be prudent … to implement [4, 5, 6 and 8 of the] recommendations of Mr Swift to the extent that these were required to advance Post Office’s case in the Group Action and as appropriately adapted to meet the needs of the litigation.”
Is that right; is that what you advised?
Anthony Robinson: I don’t recall the meeting, I’m terribly sorry. I just don’t recall. All I can go on is the email exchange of 8 June and –
Mr Beer: This records that, of the eight recommendations, you advised that only four of them should be taken forwards, and that they should be taken forwards in the context of, or within the aegis of, the Group Litigation?
Anthony Robinson: Yes, I see that said. As I say in my witness statement, I don’t quite understand it. I mean, the other four, to the extent that they hadn’t been done already, I don’t understand why I would say, in order to retain litigation privilege, don’t do this work, because the litigation doesn’t need it. I don’t understand what my thinking – what thinking would have resulted in my saying that.
So I’m – I find it difficult to understand – to reconcile what’s said here with my understanding of the 8 June email.
Mr Beer: Then, even in relation to these four, it’s put to the Post Office that you advised that they should be taken forward “to the extent they were required to advance the Post Office’s case”.
Anthony Robinson: Yeah, as –
Mr Beer: That puts a spin on it, doesn’t it?
Anthony Robinson: Possibly but, as I say, I can’t remember what was in the – what was said in this meeting, but I – I do know what Jane MacLeod said in the email you took me to previously, which has a different implication.
Mr Beer: Then another caveat or rider that, even those four, to the advance they are required advance the Post Office case, should be done as appropriately adapted to meet the needs of the litigation. There’s quite a lot of watering down going on here, isn’t there?
Anthony Robinson: I suppose you could say that. I wish I could remember what was said on 9 June. As I say, I find it difficult to – on the basis of what I understand from the emails that I’ve seen –
Mr Beer: Doesn’t really match this, does it?
Anthony Robinson: – I find it difficult to understand how I would have ended up saying those things.
Mr Beer: Within a day?
Anthony Robinson: Yes.
Mr Beer: This is a different presentation than the exchange of views in your email exchange of the 8 June, isn’t it?
Anthony Robinson: I – it seems to me that what I’m saying in those emails, the 8 June emails, are rather – a bit different, rather different, from what’s being said in this email, and I’m not sure –
Mr Beer: It’s a letter, sorry.
Anthony Robinson: – in this letter, and I’m not sure why. I mean, I make some suggestions in my witness statements as to why that might be. It may be that this isn’t a full account of what I said. It may be that the other four had been done already. I just don’t know.
Mr Beer: The letter concludes:
“This work should however be instructed and overseen exclusively by Post Office’s Legal Team (or by others instructed by Post Office’s Legal Team) so as to maximise the prospect of assert interesting privilege over this work and protect against the risk that material related to these actions could be disclosed to the claimants in the Group Action, undermining the Post Office’s prospects of success and/or negotiating position.”
I think that is consistent with the email exchange, isn’t it?
Anthony Robinson: Yes, that’s consistent with the principle of litigation privilege.
Mr Beer: Thank you.
Sir, that’s the end of that topic, I wonder whether we might break until 11.30, please.
Sir Wyn Williams: Yes, of course.
Mr Beer: Thank you, sir.
(11.18 am)
(A short break)
(11.30 am)
Mr Beer: Good morning, sir, can you see and hear us?
Sir Wyn Williams: Yes, thank you.
Mr Beer: Thank you very much.
Mr de Garr Robinson can we turn to a separate topic please. It’s the Simon Clarke Advice and the reasons for not calling Gareth Jenkins in the Group Litigation. Can we start, please, with the Simon Clarke Advice, by looking at it. POL00006357. You’ll see that it’s headed that it is an “Advice on the Use of Expert Evidence Relating to the Integrity of the Fujitsu Services Limited Horizon System”. If we go to page 14, please, and the foot of the page, we will see that it was written by Simon Clarke, a barrister, senior counsel at Cartwright King Solicitors and is dated 15 July 2013. We’re going to discover in a moment that you were provided with copy of this advice in 2018.
If we go back to paragraph 1, please. By way of introduction, he says that he’s:
“… Asked to advise Post Office on the use of expert evidence in support of prosecutions of allegedly criminal conduct committed by those involved in the delivery of Post Office services to the public through sub post office branches. By and large these allegations relate to misconduct said to have been committed by [subpostmasters] and/or their clerks.”
Then if we can go forward, please, to page 13, please, at paragraph 37, and I am cutting straight to his conclusions rather than to the build-up to them:
“What does all this mean? In short, it means that …”
I’m going to add in the correct description of the person to whom reference is being made:
“… it means that [Gareth Jenkins] has not complied with his duties to the court, the prosecution or the defence. It is pertinent to recall the test under which a prosecution expert labours: ‘… an expert witness possessed of material which casts doubt upon his opinion is under a duty to disclose the fact to the solicitor instructing him, who in turn has a duty to disclose that material to the defence. The duty extends to anything which might arguably assist the defence. Moreover, it is a positive duty’.
“The reasons as to why [Gareth Jenkins] failed to comply with this duty are beyond the scope of this review. The effects of that failure however must be considered. I advise the following to be the position:
“[Gareth Jenkins] failed to disclose material known to him but which undermines his expert opinion. This failure is in plain breach of his duty as an expert witness.
“Accordingly [Gareth Jenkins’] credibility as an expert witness is fatally undermined; he should not be asked to provide expert evidence in any current or future prosecution.
“Similarly, in those current and ongoing cases where [Gareth Jenkins] has provided an expert witness statement, he should not be called upon to give that evidence. Rather, we should seek a different, independent expert to fulfil that role.
“Notwithstanding that the failure is that of [Gareth Jenkins] and, arguably, of Fujitsu being his employer, this failure has a profound effect upon [the Post Office] and [its] prosecutions, not least because by reason of [Gareth Jenkins’] failure, material which should have been disclosed to defendants was not disclosed, thereby placing [the Post Office] in breach of their duty as a prosecutor.
“By reason of that failure to disclose, there are a number of now convicted defendants to whom the existence of bugs should have been disclosed but was not. Those defendants remain entitled to have disclosure of that material notwithstanding their now convicted status (I have already advised on the need to conduct a review of all [Post Office] prosecutions so as to identify those who ought to have had the material disclosed to them. That review is presently under way).
“Further, there are also a number of current cases where there has been no disclosure where there ought to have been. Here we must disclose the existence of the bugs to those defendants where the test for disclosure is met …”
In an appropriate case the Court of Appeal will consider whether or not any conviction is unsafe. In doing so they may well inquire into the reasons for [Gareth Jenkins’] failure to refer to the existence of bugs in his expert witness statement and evidence.”
So that’s what the advice said, by way of reminder to you. Can we turn, please, to WITN10500105, and look at the foot of the page, please. This is an email of 7 September 2018, from Mr Parsons to you. It’s part of a chain. I’m not going to read the chain because it concerns a discussion about other matters in the run-up to a conference that you were to hold, but he, Mr Parsons, says:
“The meeting with the criminal guys has just been confirmed for an 11.00 am at [One Essex Court].
“It will be Simon Clarke [and then he gives you a link to his webpage] and Martin Smith, solicitor.
“Rod Williams from [Post Office] will also be there.
“Simon and Martin have done lots of prosecutions for Post Office over the years so understand how branches work and the role of Horizon. I’ve attached an advice note Simon did 5 years ago …”
Stopping there, that’s the advice note we have just read:
“… about why [Post Office] should be wary about relying on Gareth Jenkins, which sets the context for the meeting.
“In terms of what we may need from [Gareth Jenkins], it covers broadly two things:
“1. Information about remote access – see attached note to [Fujitsu] to start the discussions about this evidence.
“2. Evidence responding to particular bugs in the system that [Gareth Jenkins] directly dealt with.”
So here we’re September 2018 – that email can come down, thank you – in advance of a meeting with the “criminal guys”, as they’re called, on Monday, 10 September 2018. Did you, when you received the Clarke Advice, five years after it had been written and more than two years after you had been instructed, feel any surprise that you were only being provided with it at that stage?
Anthony Robinson: I can’t say that I remember. One thing I would say now, that occurs to me now, and I suspect would have occurred to me then, is the meeting I had was on 10 September. The first round of Post Office’s evidence was due, I think, on 27 September. So this was being presented to me 17 days before the client was due to serve complete witness statements in relation to the Horizon issues. It occurs to me now, and I suspect it occurred to me then, that it was very late to be engaging on these questions. One would have expected these questions to have been considered and decided long before that stage.
Mr Beer: That’s something that you refer to in your witness statement Mr Generally, that you were disappointed at the process by which witness statement evidence was created in terms of the stage of the process at which it was created.
Anthony Robinson: Yes, I refer to it as “firefighting” and, indeed, having read the bundles properly now, I see that there’s one email in which – I think from February 2019 – where I actually use that expression, in that counsel are not being used to their best advantage if they’re presented with drafts and asked to advise on the hoof, particularly during the ground rush before a trial, which is how this tended to happen.
After the first round of evidence, there was a huge amount of work being done and it was very difficult to look at the evidence, as well as deal with the experts, as well as look at the contemporaneous documents that were beginning to be identified as relevant for the trial. I mean, it was awful. I do remember finding the process just exquisitely painful and it made it very difficult to do our job properly.
Mr Beer: Aside from that more general concern, I’m focusing on the question of why it was, two years into your instruction, you were being told about a problem concerning Gareth Jenkins. Before this time, had you been informed of any problem concerning the evidence that Gareth Jenkins had previously given?
Anthony Robinson: I think I might have been, informally. I think there may have been informal chats, discussions, with Andy Parsons where it was mentioned. I put it no higher. I can’t be sure but it wouldn’t surprise me if there had been brief references to it along the way but I am afraid I can’t be more specific than that.
Mr Beer: Nothing as startling as this, though?
Anthony Robinson: No, no, nothing –
Mr Beer: This must have been very concerning indeed?
Anthony Robinson: Yes, I think – it was concerning, certainly.
Mr Beer: Now, as we have discussed, there was a conference on 10 September 2018 and, much like the conference of 9 September 2016, there isn’t an attendance note –
Anthony Robinson: Right, okay.
Mr Beer: – for it, despite the number of lawyers that were present at it. So we’ve got to reconstruct, by fragments of other evidence, what happened at the meeting. I think you’ll appreciate that it’s quite an important occasion, the 10 September 2018 conference?
Anthony Robinson: From your perspective, I can certainly see that, yes. From the perspective of the Inquiry, yes.
Mr Beer: Can we start, in looking at the fragments of evidence, begin with paragraph 95 of your witness statement itself, which is on page 33. That’ll come up on the screen for you. You say in 95:
“My recollection of this meeting is not clear – indeed, until I saw the above email [that’s the one I’ve taken you to] I thought that we had a telephone call. But the upshot was that I was told in emphatic terms that Mr Jenkins was not a reliable witness. The solicitors said that Mr Jenkins had given misleading evidence.”
The solicitors that you’re referring to there, would that be the people from Cartwright King?
Anthony Robinson: Yes, one of whom I now realise was a barrister.
Mr Beer: Okay, so that is not your own solicitors –
Anthony Robinson: No.
Mr Beer: – any of the Wombles – telling you that?
Anthony Robinson: Correct.
Mr Beer: Okay:
“They suggested in no uncertain terms that I should be very cautious about calling him as a witness.”
Anthony Robinson: Yes.
Mr Beer: Had you met, as they are described in the email, the “criminal guys” before?
Anthony Robinson: I don’t think so, no. I can’t imagine why I would have done.
Mr Beer: Can you confirm that you hadn’t previously spoken to any of the criminal lawyers about Mr Jenkins’ reliability or unreliability?
Anthony Robinson: I have no recollection of having done so.
Mr Beer: Did you ever speak to Mr Jenkins about the Clarke Advice or the opinions formed in it?
Anthony Robinson: Oh, no, I’m not sure I ever met Mr Jenkins.
Mr Beer: Did you ever speak with Mr Jenkins?
Anthony Robinson: Not that I recall, no.
Mr Beer: Thank you. Can we look at some other fragments of evidence, POL00043284. If we go to page 5, please, you’ll see this is signed off by Womble Bond Dickinson on 14 November 2019.
Anthony Robinson: Yes.
Mr Beer: So, just to orientate yourself, that’s after the Horizon Issues trial had concluded but before the draft judgment had been received.
Anthony Robinson: Right.
Mr Beer: Yes?
Anthony Robinson: Yes.
Mr Beer: So it’s in that period between the end of evidence and before an embargoed judgment was received. Can we go back, please, to page 1, “Post Office Group Litigation, Gareth Jenkins”. Then if we skip over paragraph 1, which is all about prosecutions, at paragraph 2, they’re still calling him Dr Gareth Jenkins, Bond Dickinson say:
“… Gareth Jenkins of Fujitsu was the single expert for Post Office (and Royal Mail Group) for many years who provided opinion evidence in prosecutions where shortfalls and other irregularities were, in broad terms, alleged to be caught by deficiencies in the Horizon system.”
We can skip 2.2. 2.3:
“Dr Jenkins provided witness statements; expert evidence; joint reports and conclusions with the defence’s experts and attended court on at least one occasion to give evidence (prosecution of Seema Misra).”
2.4:
“A common feature of [Gareth Jenkins’] evidence was that Horizon was accurately recording and processing data. In his evidence [Gareth Jenkins] repeatedly stated that failures will only occur ‘… as a result of a bug in the code or by somebody tampering with the data in BRDB and this check is included specifically to check for any such bugs/tampering’ or that a problem can ‘… only happen as a result of a bug in the code and this check is included specifically to check for any such bugs’. He does not say that any bugs have been identified, either by checks referred to or otherwise. The inevitable conclusion is that ‘… if that is right, then there must be no bugs’.”
Then scroll down to 2.7:
“The Second Sight Interim Report dated 8 July 2013 also indicated that [Gareth Jenkins] had prior knowledge of Horizon issues. It appears that between 2010 to 2012, there were some ‘defects’ which impacted a number of branches. Post Office conducted an investigation in 2012 which failed to reveal any Horizon system defect. It was not until 2013 that Fujitsu looked into the matter and then corrected the defect. [Gareth Jenkins] disclosed on 28 June 2013 to Cartwright King that he had informed Second Sight of the existence of two bugs which had affected Horizon as set out in the Second Sight Interim Report.”
2.8:
“In July 13, Post Office obtained advice from Cartwright King on the reliability of [Gareth Jenkins’] evidence. The conclusion was that [Gareth Jenkins] had attested to the integrity and robust nature of Horizon – ie there was nothing wrong with the system. Unfortunately that was not the case at the time he was giving evidence as he knew there were issues with Horizon as early as 2010.”
3.1:
“Why is this a problem?
“[Gareth Jenkins] did not comply with his duties to the court, the prosecution or the defence. He failed to disclose material known to him but which undermined his expert opinion. That failure was a serious, and possibly criminal, breach of his duty as an expert witness.”
3.2:
“The effects of that failure set out by Cartwright King in 2013 were:
3.2.1:
“[He] failed to disclose material known to him but which undermined his expert opinion. This failure was in plain breach of his duty as an expert witness.
2:
“His credibility as an expert witness was fatally undermined; he should not be asked to provide expert evidence in any current or future prosecution.
3:
“Material which should have been disclosed to defendants was not disclosed which placed Post Office in breach of their duty as a prosecutor.”
Then over the page, please, to paragraph 4.5, the sift review, which is discussed in those earlier paragraphs:
“… has let to the Lepton Report being cited in Second Sight’s Report and referred to repeatedly in the Horizon Issues trial. However, in both instances the focus has been on the Lepton Report’s comment on the accuracy of another system called Credence, rather than it shows Mr Jenkins’s state of knowledge. As far as we are aware, nobody outside of Post Office has alighted on the significance of this document in relation to Mr Jenkins’ historic evidence.”
Then 5.1 to 5.4:
“Calling Gareth Jenkins as a witness in the [Horizon Issues Trial].
“Consideration was given to calling Gareth Jenkins as a witness for the Post Office in the [Horizon Issues Trial].
“We originally assessed that we required evidence from Fujitsu in relation to three broad areas:
“the general operation of Horizon;
“the allegation that Post Office remotely edits … data; and
“the specific bugs identified by the claimants.
“Fujitsu suggested there were parts of the second and third areas that [Gareth Jenkins] would be best placed to give evidence on (such as the historic bugs that he dealt with). Given that [Gareth Jenkins] had previously appeared as an expert witness in prosecutions and because of the above issues, we set up a consultation with Leading Counsel to discuss the risks of using [Gareth Jenkins] as a witness in the [Horizon Issues Trial].
“The [conference] took place on 10 September and was attended by [you], Simon Henderson, Andy Parsons, Rodric Williams and Martin Smith and Simon Clarke from Cartwright King. During the [conference], Cartwright King advised strongly against Post Office calling [Gareth Jenkins] as a witness in the [Horizon Issues trial] on the basis of the above problems. The decision was taken that [Gareth Jenkins] could not be called and we need to look for a viable alternative witness.”
Just stopping there, is that account given in this note of what occurred in the conference at 10 September accurate?
Anthony Robinson: I think it’s a fair summary.
Mr Beer: The reasons for not calling Gareth Jenkins as a witness in the Horizon Issues trial were on the basis of the above problems and that was, would you agree, that he was first said by the criminal solicitors to be an unreliable witness; secondly, he had been treated by the Post Office as a witness upon whom they could not place reliance; and (3) he was said to have given false evidence in criminal proceedings?
Anthony Robinson: Yes. He’d breached his duty as an expert in criminal proceedings.
Mr Beer: Well, and was said to have given false evidence?
Anthony Robinson: Misleading evidence, yes. I’m not cavilling, I’m so sorry.
Mr Beer: I’m sorry?
Anthony Robinson: I’m not fencing with you.
Mr Beer: Of course. So those were the reasons why Gareth Jenkins was not called as a witness in the Group Litigation, agreed?
Anthony Robinson: Yes, the reason was he had said things and not said things in criminal proceedings which would have undermined his credibility as a witness.
Mr Beer: And that he had given misleading evidence in those proceedings?
Anthony Robinson: Yes, that’s what I meant. Yes.
Mr Beer: He had breached his duty to the court?
Anthony Robinson: Yes.
Mr Beer: And he had been regard as such by the Post Office?
Anthony Robinson: Yes, because Post Office had received Mr Clarke’s note in – back in 2013, so if it didn’t know it previously, it knew it by then, yes.
Mr Beer: That can come down for the moment. Thank you.
In the course of this meeting of 10 September 2018, at which allegations were made to you about the expert evidence that Gareth Jenkins had given, did any of the lawyers discuss the extent to which Mr Jenkins had been properly instructed as an expert.
Anthony Robinson: No. Absolutely not.
Mr Beer: Okay. Did anyone explain that, as a matter of fact, he had not been properly instructed as an expert or the duties of an expert witness explained to him?
Anthony Robinson: No.
Mr Beer: Okay. Was there any discussion about broader questions of the Post Office’s own conduct of those prosecutions, in which Mr Jenkins had given evidence?
Anthony Robinson: Not that I recall, and I would be very surprised if there had been. That’s not the purpose of the meeting.
Mr Beer: Did you ask to see or were you shown any of the underlying material upon which Mr Clarke’s analysis and advice was based?
Anthony Robinson: Oh, no. I took Mr Clarke’s note as read.
Mr Beer: Did you ask to speak to anyone at Fujitsu or suggest that your solicitors should speak to anyone at Fujitsu, to discuss the concerns that had been raised about Mr Jenkins’ reliability?
Anthony Robinson: No. The purpose of the meeting was to allow the Legal Team to take a tactical decision as to how they should – as to the preparation of evidence for the Horizon trial.
Mr Beer: Was there any discussion over whether anyone had spoken to Mr Jenkins about the allegations or the assessment that the criminal lawyers had made about him?
Anthony Robinson: I do not believe so and I can’t think why there would have been.
Mr Beer: Was there any discussion over whether the Post Office ought to inform Mr Jenkins of the opinion which had been formed about him in the course of the criminal and then civil litigation?
Anthony Robinson: Same answers as before. I don’t believe so.
Mr Beer: In any event, the reasons, and all of the reasons, for not calling him as a witness related to Mr Clarke’s assessment of him as to his performance in past criminal proceedings?
Anthony Robinson: Yes, it related to what Mr Clarke had to say about what Dr Jenkins did and did not do in those criminal prosecutions, or rather did or did not say in those prosecutions.
Mr Beer: Was there any discussion in the meetings, so far as you recall, as to what had been explained to Fujitsu for the reason not to call Mr Jenkins as a witness?
Anthony Robinson: I’d be very surprised if there had been. I don’t have a – as I say, my recollection of that meeting is not particularly clear. The upshot of it is clear in my mind but the details are not clear.
Mr Beer: Okay.
Anthony Robinson: But I – that would not have been the purpose of – it was about – it was allowing the Legal Team to come to a decision about how to prepare their evidence for the case. It wasn’t about wider considerations of, for example, the relationship between Post Office and Fujitsu. That wasn’t our concern or my concern.
Mr Beer: Can we go back to the note, please, POL00043284, and forward to page 3, and back to 5.5 at the foot of the page.
We’d left off by reading 4.4. Carrying on at – sorry, we’d left off at 5.4. Reading off again at 5.5:
“It was explained to Fujitsu that Post Office did not wish to call [Gareth Jenkins] because we did not wish to mix civil and criminal evidence.”
Just stopping there, if that explanation was given to Fujitsu as the reason for not calling Gareth Jenkins, that would be a false explanation, wouldn’t it?
Anthony Robinson: I would say so. The next sentence indicates that there was a desire – it seems to indicate there was a desire to keep from Fujitsu the issues discussed in this paper.
Mr Beer: Yes. The next –
Anthony Robinson: So a form of words clearly was used, which was ambiguous, so as to allow the person informing Fujitsu not to be specific about it.
Mr Beer: Appreciating this wasn’t you doing the informing, it’s a bit more than ambiguous, on the face of this page, isn’t it? The explanation being given to Fujitsu was “We didn’t want to mix civil and criminal evidence” –
Anthony Robinson: I think that –
Mr Beer: – whereas the true reason is “because we regard him as an unreliable witness who had misled the court”?
Anthony Robinson: I suppose that’s fair, yes.
Mr Beer: “We do not believe that Fujitsu are aware of the issues in this paper.”
Was that your state of understanding back on 10 September 2018 –
Anthony Robinson: I don’t –
Mr Beer: – they, Fujitsu, didn’t know about the issues with Gareth Jenkins?
Anthony Robinson: I don’t believe so. I don’t think I knew anything about what Fujitsu knew or did not know.
Mr Beer: Then reading on at 5.6:
“Post Office’s witness evidence was served in September and November 2018. On 30 January … Freeths wrote to us asking why [Gareth Jenkins] was not being called as a witness. We responded on 12 February 2019, pointing out that [Gareth Jenkins] had acted as an expert witness in relation to a number of prosecutions that are being reviewed by the CCRC and it was therefore not appropriate to call him.”
Appreciating, again, you were not the provider of that information but, again, if that was the explanation provided, that would be a false explanation too, wouldn’t it?
Anthony Robinson: It would be economical with the truth, yes, in effect.
Mr Beer: And therefore false?
Anthony Robinson: Yes, I think, yes.
Mr Beer: Can we move on, please, to POL00363775. If we begin, please, with page 8, and I’m still on fragments of evidence that help us to establish what the decision making was in particular at the conference on 10 September 2018?
Anthony Robinson: Okay, understood.
Mr Beer: You’ll see an email of 12 November 2018 from Jonathan Gribben, a managing associate at Womble Bond Dickinson, to you and to Simon Henderson, copied to Mr Parsons:
“As you know, Fujitsu are in the process of analysing [KELS and Robert Worden’s] sample of 50 KELs.”
In the second paragraph:
“The analysis is being carry out by several people in Steve Parker’s team plus Gareth Jenkins. It would not have been possible for Steve to review all of the KELs himself in the time available and by his own admission he has been in management since 2010 so his technical knowledge is not as it once was.”
That’s a reference to Stephen Parker, yes?
Anthony Robinson: Yes.
Mr Beer: If we scroll up, please, to the bottom of page 7 and the top of page 8, we see Mr Henderson’s reply:
“I haven’t had a chance to discuss this with [you] but my view is that the overall approach, ie recording that he has asked his team to do the work, is fine but that it is very likely that privilege (if indeed there is any privilege) will be waived. This is an exercise which a third party witness is saying he has asked his team to perform, ie it is not something which, at least on the [face] of the [witness statement, Post Office’s] lawyers have asked for – and even if they have, by including the output of that exercise in a [witness statement], I think any privilege, eg in how the exercise was carried out, is likely to be waived. It certainly cannot be assumed that we can pick and choose what we present (since that could plainly be misleading) and more generally I think it will have to be assumed that the way in which the investigation is carried out and the detail of its findings, will be disclosable.”
So here Mr Henderson is focusing on the extent to which privilege might have been maintained or it might have been waived by the conduct of the exercise of examining the KELs by a Fujitsu team, including Mr Jenkins?
Anthony Robinson: Yes, he’s also saying it’s fine to record that Mr Parker has asked his team to do the work.
Mr Beer: Yes, then your reply, if we scroll up, please – keep going, thank you – you say you agree with Simon’s view below. I’m going to skip over the first main paragraph because that’s all about the privilege issue. Then you say this:
“Second, I see that Gareth Jenkins is part of the team doing the analysis. We all know the reasons why we have decided not to have Jenkins as a witness.”
Are they, just stopping there, the reasons we discussed: he was said by the criminal solicitors to have been an unreliable witness; he had been treated by the Post Office as being unreliable; and he was said to have given misleading evidence in the criminal proceedings?
Anthony Robinson: Yes.
Mr Beer: You say, “We all know” because this is November ‘18 and you had discussed these at the September ‘18 conference?
Anthony Robinson: Yes.
Mr Beer: You continue:
“They are also reasons for not having him as a source of evidence – ie as a source of information for our witnesses and/or as a person providing analyses on which our witnesses will rely. Where he is acting as a source the claimants will know this and they will waste no time in arguing (1) the fact that we have not called such a natural witness demonstrates that he not a reliable witness, (2) we recognise this fact and want to protect him from any cross-examination, and (3) if he is not a reliable witness, he can’t be a reliable source of evidence, either and (4) as the claimants are being prevented from cross-examining him the information he proves to other witnesses is even less reliable than a witness statement from him would be. The argument will undermine the evidential value of any witness statements that are based on information that Jenkins has provided.”
You were essentially saying here that the three reasons that we’ve isolated for not calling Gareth Jenkins apply with equal force for not relying on Mr Jenkins behind the scenes as a provider of information or evidence?
Anthony Robinson: Yes.
Mr Beer: Is that because, if he is an unreliable witness but not called, he may, nonetheless, be providing unreliable information to people who are being called?
Anthony Robinson: It may be argued that he – what I’m reciting is what the – the claimants will waste no time in arguing.
Mr Beer: Yes. Well, in fact, in summary here, you predict rather accurately what the judge went on to find, didn’t you? This almost reads as if it is part of the judgment in due course?
Anthony Robinson: I’m not sure that is a fair summary of what the judge said but, nevertheless – I’m – I’d have to go back and remind myself.
Mr Beer: Would the reasons for not relying on him as a behind-the-scenes source of evidence be that, if he is thought to be an unreliable witness but not called, then asking him to speak about the very same subject matter as has been found by the criminal lawyers to be misleading evidence, pollutes the stream of evidence of the witnesses who may be being called?
Anthony Robinson: I suppose you could be – that’s one way of describing it. From my perspective, we had made a tactical decision that it would be better if he were not called as a witness and the logic of that decision also meant that it would be better if we didn’t rely on him – our other witnesses didn’t rely upon him as a source of information. And so I go on to say in the next paragraph:
“It follows that we should limit Jenkins’ involvement as a source of evidence as much as possible, essentially to those areas where there’s no alternative source of information.”
Mr Beer: In the next paragraph you, say:
“… We should limit [his] involvement … as much as possible … However, the man seems to be popping up on [every] technical question – as a source of information for Torstein Godeseth and now as a member of the team providing analysis for Steve Parker. I appreciate his unique position and there may be some areas where we have no alternative but to use him as a source of information. But are we sure that we are limiting his involvement as much as possible? I entirely recognise the need to be realistic about the sort of evidence we can get from Fujitsu in the time available. But I need to make clear the risk we could be running of adducing evidence which could turn out not to be very useful to us. “
So you are here, in the words of your witness statement, expressing dissatisfaction at the fact that Mr Jenkins keeps popping up in the evidence.
Anthony Robinson: Yes.
Mr Beer: Having regard to this email chain, were you aware that there were number of people who were contributing to Mr Godeseth’s witness statement, including Gareth Jenkins?
Anthony Robinson: I was aware that Mr Godeseth’s witness statements identified a number of people as sources of his information, including, in numerable examples, Mr – Dr Jenkins himself.
Mr Beer: You were willing, would you agree, to accept Mr Jenkins’ involvement and assistance where there was no one else who was able or willing to provide it?
Anthony Robinson: Yes. If there was evidence that needed to be adduced and the relevant evidence was, in part, based upon information that could only come from Jenkins, then we would have to rely on that information, but I wanted to make it clear that it should be kept to a minimum and we shouldn’t be doing it if we could avoid doing it.
Mr Beer: Would you agree that that prospective use of him made it all the more important to ensure that Mr Jenkins was aware of the position that he was being put in, ie although he was being regarded by Post Office as an unreliable witness, nonetheless, his assistance would be sought and relied upon where it was important for the Post Office for that to happen?
Anthony Robinson: That’s not something that I considered for a second at the relevant time. I had no idea what Dr Jenkins was or was not aware of.
Mr Beer: To what extent were these issues addressed at the meeting of 10 September, ie Dr Jenkins, as you called him, is an unreliable witness or regarded as an unreliable witness but we, nonetheless, need to use him, or was that not addressed at the conference?
Anthony Robinson: I don’t recall it being addressed. My recollection is – and this is six years ago, so my recollection is necessarily limited – my recollection is that we had another witness in the form of Mr Godeseth, who was also very knowledgeable. His job title was General Architect, I think.
Mr Beer: Chief Architect.
Anthony Robinson: Chief Architect. And, although his knowledge on certain issues was not as great as Dr Jenkins – he was a Doctor. Gareth Jenkins –
Mr Beer: He wasn’t.
Anthony Robinson: Oh, I’m so sorry. I thought he was a Doctor. So Gareth Jenkins, although there were certain limited matters on which his knowledge was not as great, he was still very knowledgeable and, however, having – and that was the basis upon which the decision was made as to the evidence that we prepared – I say “we” – that Womble Bond Dickinson prepared, with comments from counsel.
Then, once we saw the witness statements, I saw, we all saw, how much reliance there was on Mr Jenkins. He was referred to everywhere and it was quite a surprise and quite disappointing.
Mr Beer: Did that get worse during the course of trial, ie the onion was peeled back a little bit further in that, in the course of the trial, previously unrevealed reliance on Mr Jenkins was itself revealed?
Anthony Robinson: I don’t recall but it’s possible. I just don’t recall. I’m sorry.
Mr Beer: Can I turn to the extent to which Mr Jenkins was involved in the creation of the Post Office’s witness evidence and its expert evidence, and the extent to which that involvement was revealed to the claimants and to the court. That document can come down, thank you.
I’m not going to go through all of the emails that we’ve now got which show the extent of Mr Jenkins’ involvement, which witnesses it relates to, the extent of the reliance placed on him in the creation of a witness account, what Mr Jenkins told them or didn’t tell them. I just want to look at one example, please. It in fact comes out in the judgment itself. So it’s something that emerged in the course of the trial and is not something that we now know, because we’ve got a lot more privileged information.
POL00022840. Can we turn, please, in the judgment to page 275, and paragraph 870. This is the section of the judgment concerning the judge’s conclusions on expert evidence and he introduces it by saying:
“I prefer the expert evidence and approach of Mr Coyne to that of Dr Worden. That is for the following reasons.”
Then can I go to one of the reasons given, page 277, paragraph 880:
“He [that’s Dr Worden] also relied – in my judgment heavily – upon information from Mr Jenkins. Mr Jenkins was not even identified as one of his sources of information in section 1.3 of this report, headed ‘Sources of information’. This means that Dr Worden was given access to information that was not made available to his opposite number … Although there were some references throughout the text of the report to Mr Jenkins, Dr Worden did not routine any identify where he had relied upon Mr Jenkins. He also provided a great deal more information about this contact with Mr Jenkins in his oral evidence than he did in his written reports. In his cross-examination, he identified, when asked about a passage, that he had obtained that information from Mr Jenkins, which plainly took place before the first report was served as he accepted on his first day in the witness box it was ‘a year ago’. This was not clear on the report itself. One example of this was paragraph 654.2, where the report was dealing with the effect of the [RPM] bug and Dr Worden stated ‘Because the operation involved was apparently not a double entry operation on the BRDB, the countermeasure of checking the double-entry constraint DEA did not catch it’. This information came from Mr Jenkins, but until Dr Worden was asked this in cross-examination, no reader would be able to tell this. The involvement of Mr Jenkins in this explanation in his report was simply hidden. Nowhere was there a note or summary of all the information that had been given to Dr Worden by Mr Jenkins. In this litigation in particular, and given the involvement of and information provided by Mr Jenkins, who knew so much about the Horizon system, such a note or summary was, in my judgment, essential. This was particularly important given that there was no witness statement from Mr Jenkins. Dr Worden had been provided with, and had used, information from Mr Jenkins in addition to the witness statements served by the parties.”
So I think it’s fair to say that this is a conclusion that the judge’s view of Mr Godeseth and his evidence was adversely affected by the involvement of Mr Jenkins and the non-revelation of that involvement.
Anthony Robinson: Yes, and I’m cross about this. To say I’m cross is an understatement.
Mr Beer: Cross with who?
Anthony Robinson: I’m cross that it happened. At an early stage, there was discussion about the fact that Dr Worden wanted direct access to Fujitsu, and this was raised with counsel – with me and with Simon Henderson, possibly with Mr Draper as well – and we advised that there should be a protocol drawn up to deal precisely with information coming from Fujitsu to Dr Worden. And, as a result of that advice, a lengthy document was drawn up, I forget how many pages but it was a significant number of pages and, amongst other things, in fact, at the beginning, it made it clear that that to the extent that any information was provided to Dr Worden, this should be recorded, so as to ensure that there was equality of information between the experts.
There would be a full record of the information provided to Dr Worden, kept by WBD, so that that information could also be provided to Mr Coyne, who was the expert for the claimants.
That was the whole purpose of that protocol process, and so what Mr Justice Fraser describes here should never have been possible. There should have been disclosure of everything that anyone at Fujitsu said to – any information, any new information that was provided by Fujitsu to Dr Worden, that should have been recorded – identified, recorded, and then given to Mr Coyne as well, and I’m astonished and cross that that didn’t happen.
Mr Beer: You gave that advice to Womble Bond Dickinson?
Anthony Robinson: Yes. Actually, I believe that there’s a –
Mr Beer: There’s an email chain setting it out –
Anthony Robinson: In the documents you’ve provided, there’s an email where I talk about the need for a protocol.
Mr Beer: Yes. Do you know whether Womble Bond Dickinson carried that advice into effect with their client, the Post Office?
Anthony Robinson: I believed that they did. I had no reason to think that they hadn’t. What would be the point? I’m sorry to ask rhetorical questions when I’m giving evidence but what would be the point of preparing a quite a lengthy and detailed protocol document if it was then ignored in practice?
Mr Beer: Do you know whether that was the witness’s, ie Dr Worden’s refusal, to carry that into effect or Post Office’s refusal, or failure to carry it into effect, that caused it not to be carried into effect?
Anthony Robinson: I – the basic thrust of the protocol was that there would never be any contact between Dr Worden and Fujitsu without WBD being present and taking a note and, therefore, WBD should always have been present and taking a note of any information that was provided. To the extent – I don’t know if there was any contact between Dr Worden and Fujitsu without WBD being present, there certainly shouldn’t have been and, if there was, that shouldn’t have been allowed. That should have been prevented by WBD.
Assuming, as I did, and I still do assume, that any contact would have been with WBD being present, then any failure to record the information that was provided, and provide that information to Mr Coyne, would have been WBD’s failure, not Dr Worden’s. It wasn’t his job to set it all out in writing and to provide it to Mr Coyne; that was my instructing solicitor’s job.
Mr Beer: Is the long and the short of it, irrespective of who was at fault or who was to blame for the protocol that you envisaged not being carried into effect, that that failure compounds the use and reliance on Gareth Jenkins as a behind-the-scenes source of evidence?
Anthony Robinson: I’m not sure what your question means. It just – it meant that there was a respect in which Dr Worden expert evidence was rendered less reliable in circumstances where that was avoidable. It need not have happen.
Mr Beer: It applied not just to Dr Worden; it applied to Torstein Godeseth as well, didn’t it?
Anthony Robinson: Well, with the witnesses, there were a great number of occasions within the witness statements where Mr Jenkins was specifically identified as a source of information. There were some occasions where he was not and it’s absolutely – I think it’s really unfortunate that he wasn’t specifically identified on all occasions and there were at least couple of occasions where I think I fell short in – because I was in a hurry, because I had other things to worry about – where I didn’t, you know, I didn’t intervene in the process, so as to ensure that it was done at all times and I think that’s something for which I can be justifiably criticised.
Mr Beer: Can we break there for our second morning break until 12.30, please, sir.
Sir Wyn Williams: Yes. Of course.
Mr Beer: Of course, sir.
(12.21 pm)
(A short break)
(12.32 pm)
Mr Beer: Good afternoon, sir, can you see and hear us?
Sir Wyn Williams: Yes, thank you.
Mr Beer: We have dealt with the decision making, Mr de Garr Robinson, at the conference on 10 September 2018, and in associated emails, over the use of Mr Jenkins as a witness in the Post Office litigation and with the contributions that he made to witness and expert evidence outside of the courtroom, and with the extent to which that was revealed to the claimants and to the court on the face of the witness statements and expert evidence.
Can we turn to how Mr Jenkins’ role was addressed in the Post Office’s closing submissions, please. Can we turn up POL00026925. We can see that these are the Post Office’s closing submissions in writing, for the purposes of the Horizon Issues trial. They are 545 pages long, including the appendices.
Can we look, please, at the body of the submissions, where they end, at page 392. If we scroll down, and if we just look at the top of the next page, we can see they’re dated 27 June 2019 and we can see that they’re signed off by you and your three juniors.
Anthony Robinson: Yes.
Mr Beer: Did you contribute to the drafting of these?
Anthony Robinson: I’m sure I did but, whether I did or not, I certainly approved them.
Mr Beer: So you read them all and signed them off by putting your name to them?
Anthony Robinson: Yes, I’m sure that’s right.
Mr Beer: Can we look, please, at page 64 and at paragraph 138. I’m going to take you to three parts of the closings before asking questions:
“Post Office wanted to provide a simple and uncontroversial overview of Horizon and its relevant features. It recognised that it was not possible for one person to have had a complete understanding of all of the corners of the Horizon system but, on the basis that there would not be room in the timetable for multiple witnesses, it took the view that this overview should be provided by one person. Two possible candidates were Torstein Godeseth and Gareth Jenkins. Taking into account the involvement that Mr Jenkins had in a number of criminal prosecutions that are currently being looked at by the [CCRC] (eg the Misra case), Post Office asked Mr Godeseth to do so.”
So that’s passage 1. Then if we can go forwards, please, to page 66, at paragraph 14:
“As was made clear in the statement, in certain respects Mr Godeseth’s evidence was based on information provided by others. His account of the Misra trial was based on information provided by [Womble Bond Dickinson] and Mr Jenkins; his accounts of the Callendar Square, receipts and payments mismatch, local suspense and Dalmellington bugs were based online the contemporaneous documents and discussion with Mr Jenkins and on one point of information provided by Matthew Lenton, [the documents manager]; his accounts of the documents held by Post Office was based on information provided by Steve Bansal, Fujitsu’s Senior Service Delivery Manager.”
Then the third passage is 144:
“[The claimants] understandably complain that Mr Jenkins and the other source of Mr Godeseth’s information could have given some of this evidence firsthand …
“Taking into account that Professor McLachlan’s evidence specifically addressed things said or done by Mr Jenkins in relation to the Misra trial, Post Office was concerned that the Horizon Issues trial could become an investigation of his own in this and other … cases.
“2. Moreover, Post Office was conscious that if it only adduced firsthand evidence in the trial, it would end up having to call more witnesses than could be accommodate within the trial timetable.
“3. Furthermore, so far as the Post Office was aware, the relevant parts of Godeseth 2 were most unlikely to be controversial. For example, the Misra trial was a matter of public record, the four bugs were covered by contemporaneous documentation and Post Office had no reason to doubt Fujitsu’s account of the documents it held.”
In the three passages I have taken you to, do you accept that the explanation provided to the court did not reflect the true reasons as to why Mr Jenkins was not being called as a witness?
Anthony Robinson: No.
Mr Beer: They did reveal the true position, did they?
Anthony Robinson: What – if you look at paragraph 144.1, what’s being said is that – what’s being flagged to the court is that there were criticisms, there were likely to be criticisms, of things said or done by Mr Jenkins in the Misra trial and other criminal cases.
Mr Beer: Just stopping there, where does it say that there could be criticisms made of Mr Jenkins in the criminal cases?
Anthony Robinson: “Taking into account that Professor McLachlan’s evidence specifically addressed things said or done by Mr Jenkins in relation to the Misra trial, Post Office was concerned that the Horizon Issues trial could become an investigation of his role in this and other criminal cases.”
Now, what that was doing was signalling to the judge – like any other judge, the judge was an experienced litigator – it was signalling to the judge that there were things that Mr Jenkins had said and done that would be the subject of criticism. Anyone reading paragraph 144.1, in the context of these proceedings, would have realised that was the case. That was being – in my view, that was being clearly signalled to the judge.
Mr Beer: That was being open and candid, was it, with the court as to the reasons why your client had decided not to call Gareth Jenkins?
Anthony Robinson: The judge was being told that there were – it was being made clear, in my view, to the judge that there were issues in relation to what Mr Jenkins had said or not said in criminal cases which would have become the focus of attention. Now, I asked this question rhetorically: why is it even relevant to say that? Why would that point even be made? It would only be made because there were previous inconsistent statements that would have been put to Mr Jenkins had he been called. Indeed the judge, in his judgment, says that in one of the paragraphs.
In my view, that was a fair – that gave a fair indication to the judge of the concern that Post Office had, which led to Mr Jenkins not being called as a witness. I don’t accept that was misleading at all. It’s true that I didn’t refer – that counsel, the four of us, didn’t refer to Mr Clarke’s note. We wouldn’t have been entitled to refer to the note because that was privileged. It’s true that we didn’t say he would have been a terrible witness. But, in circumstances where the judge is being told there are things that he did in relation to criminal cases that would have been the subject of investigation, ie would have been the subject of cross-examination during the trial, in my view, that is sufficient. That is a sufficient indication of the sort of concern that Post Office had that led to Mr Jenkins not being called as a witness. So I don’t accept your question.
Mr Beer: The real reasons, we established, I think, three times this morning, that Mr Jenkins was not called, was that, firstly, he was said by the criminal solicitors to be an unreliable witness; secondly, he had been treated by the Post Office as a witness upon whom reliance could not be placed; and, thirdly, he was said to have given false evidence in criminal proceedings. You agree that none of those reasons, the true reasons, were given?
Anthony Robinson: I don’t agree that they are three separate reasons. The reasons were that, during the criminal trials, he had said things that were misleading and/or had not said things that he should have said. That – the inevitable result of that was to the give the claimants material to suggest that he was an unreliable witness. That was the reason why he was not called.
In my view, paragraph 144.1 signals that to the judge. It doesn’t do so with the emphasis that you would probably suggest is required but I do not accept that that was misleading. I believe that, in the eyes of an experienced litigator, that would have signalled quite clearly what the real concern was, what the underlying concern was.
Mr Beer: Really? You think that signals quite clearly?
Anthony Robinson: Yes, I do.
Mr Beer: Is that really what you’re saying?
Anthony Robinson: It would not have been relevant. The point being made in 144.1 would not have been relevant, unless there was material which could have been put to Mr Jenkins about what he’d said or not said during the criminal trials. It would have been an irrelevant point to make. Why is it there? Because things clearly were said or not said which would have been the subject of cross-examination.
Mr Beer: At most, this is saying, “It become a distraction to your trial, judge. That’s why we haven’t called Mr Jenkins”.
Anthony Robinson: Well, I’m – that is not my view as to what is being signalled by paragraph 144.1. Not at all.
Mr Beer: Who signed these submissions off within your solicitor team?
Anthony Robinson: I have no – I couldn’t tell you that. Obviously, the submissions would have been circulated to WBD for comment but I don’t know how high up the process it would have gone, how high up the hierarchy it would have gone. Certainly, Andy Parsons would have approved.
Mr Beer: Do you know who within the client signed the submissions off?
Anthony Robinson: I do not know, no.
Mr Beer: Given your long experience as a litigator, what do you consider would have been the reaction by the judge if the Post Office had disclosed the three reasons we discussed this morning why Mr Jenkins had not been called, albeit he was being used within the litigation as an important source of evidence given by others?
Anthony Robinson: I – you’re asking me to answer a question which is based on a hypothesis that I don’t agree with. In my view, paragraph 144.1 signalled to the judge that Jenkins said or didn’t say things in criminal prosecutions that would have been the subject of cross-examination. Previous inconsistent statements would have been put to him and Post Office wished to avoid that. In my view, you – you may be going to take me to the judge’s judgment in a minute – but, in my view, that’s how the judge must have understood it. I infer that from his judgment.
Mr Beer: But lurking beneath the surface was a different set of reasons?
Anthony Robinson: No, absolutely not different. You’re entitled to say, if you want, you –
Mr Beer: Thank you.
Anthony Robinson: – we could have been more – you’re welcome – we could have been more emphatic. You’re entitled to say that.
Mr Beer: Thank you again.
Anthony Robinson: But what, in my view, would be quite wrong, would be to say that is misleading. That was a – in the – to an experienced litigator, it would have been clear what was being signalled by paragraph 144.1.
Mr Beer: If we go back to paragraph 138, which is on page 64 – thank you – the last four lines:
“Taking into account the involvement that Mr Jenkins had in a number of criminal prosecutions that are currently being looked at by the [CCRC], Post Office asked Mr Godeseth to do so.”
That’s the same point as we subsequently see in point one, isn’t it?
Anthony Robinson: What is being said there is that there was a concern because Mr Jenkins had been involved in criminal prosecutions that the court of criminal – the Criminal Cases Review Commission was looking at. In other words, there were questions as to Mr Jenkins’ performance of his duties as an expert, which were being reviewed. There were issues about his performance as an expert. It was not being concealed from the judge that there were – that there were reasons for thinking that Mr Jenkins’s performance as an expert were open to criticism, and that it might be suggested that he had given evidence that was open to challenge. I do – I really do refute that suggestion. That’s not my view at all.
Mr Beer: Can we turn forwards, please, to POL00134909. This is a long attendance note made by Herbert Smith Freehills of a conference with you on 4 October 2019. You’ll see who is present. Again, just to orientate ourselves, that’s after the end of the trial, after submissions have been made but before judgment, yes?
Anthony Robinson: Yes.
Mr Beer: Then there’s a list of questions that Alex, that’s Alex Lerner, I think, wishes to be answered. Question 4, we can see:
“At trial, did the claimants advance a case that Post Office suppressed evidence regarding the existence of bugs? If so, can you point me to the relevant parts of the closings/the trial transcripts? I want to have read up on this issue if it is something you think might get raised in the judgment.”
So this is by the time Herbert Smith Freehills are being involved as solicitors for the Post Office, yes?
Anthony Robinson: Yes.
Mr Beer: Can we see what the answer to that question 4 is. It’s page 9, please. Can you see there is a box which says, “The answer to your question is yes”, under question 4, they did, that’s the claimants, suggest it in a number of ways.
Then under one heading, “Gareth Jenkins”:
“First of all, they made huge complaints that we didn’t call Gareth Jenkins, who is a god but an unreliable god. They say the fact that we didn’t call Gareth Jenkins is suppression.
“And you know what, that might be right.”
Why did you think that what the Post Office had done may be the suppression of evidence from Gareth Jenkins?
Anthony Robinson: I think you’re reading too much into that. I am given sometimes to explaining things in a very colourful way. There was no suppression of evidence. What there was was a decision not to call someone to give evidence on relatively uncontroversial questions because it was felt that what would then happen is that he would get dragged into a cross-examination of – in relation to his evidence in criminal prosecutions, that would – that would simply result in a finding that he was an unreliable witness.
Mr Beer: Suppression in this context, the suppression of evidence, means to silence, to cover-up, to conceal, doesn’t it?
Anthony Robinson: As I say, I think you’re reading far too much into that.
Mr Beer: I’m just reading back the words that are recorded in this Herbert Smith Freehills attendance note on you.
Anthony Robinson: Yes, but do remember that this is an informal conversation between litigators and I am speaking – as I say, I’m trying to do it in an easy to understand, and rather dramatic way, so that Alex Lerner can understand where we stand. If you’re going to put to me that there was actually suppression of evidence because Gareth Jenkins was not called, I would refute that suggestion.
Mr Beer: In what respect was this consultation informal?
Anthony Robinson: It was a – was it an in-person conversation or was it a call? Can you –
Mr Beer: Go back to page 1. It doesn’t record on its face –
Anthony Robinson: No.
Mr Beer: – whether it was in person but it lasted 1 hour and 25 minutes.
Anthony Robinson: Yes.
Mr Beer: You’ve got you and Simon Henderson from the counsel team, Andrew Parsons and Womble Bond Dickinson from the – sorry, and Katie Simmonds from the Womble Bond Dickinson team, and then four solicitors from Herbert Smiths, yes?
Anthony Robinson: Yes. Now, I know almost all of the people in that list very well. I know not just the WBD people but the HSF people as well, Alan Watts and Alex Lerner, I’m very familiar with him. This was a briefing discussion to help them get up to speed. They’d only – my recollection is that they’d only recently been instructed and I was trying to help them get up to speed so that they were able to field matters arising as and when judgment was given.
In that sense, it was an informal briefing of colleagues about issues arising in the litigation, in Alex’s four or five questions. In that sense, it was informal.
Mr Beer: So back to page 9, please, question 4, second paragraph:
“They [the claimants] say that the fact we didn’t call Gareth Jenkins is suppression.
“And you know what, that might be right. They would have killed him at trial.”
You say that is just explained by the use of overly colourful language in the course of an informal meeting?
Anthony Robinson: Yes, “They would have killed him at trial”, what I’m saying is they would have cross-examined him up hill and down dale on his performance in and as an expert and things he did and didn’t say during criminal prosecutions, and they would have had a field day with that. That’s what I’m trying to say there. That’s another way of – a rather colourful way, as is my wont, of making that point.
Mr Beer: Mr de Garr Robinson. Thank you very much. They’re the questions I ask.
Sir, there are some questions I think from, I think, three sets of Core Participants that I anticipate will take until about 1.20.
Sir Wyn Williams: All right.
Mr Beer: Mr Stein, I think, first.
Questioned by Mr Stein
Mr Stein: Mr de Garr Robinson, just dealing with the last matter you were asked by Mr Beer, you said in your evidence that, as regards the explanation that was provided concerning Mr Jenkins, that there was a concern that – or you were flagging to the judge there were likely to be criticisms of things said or done by Mr Jenkins in the Misra trial and other criminal cases.
Anthony Robinson: Yes.
Mr Stein: Are you trying to say that you were trying to tell the judge that, in the future, that there was going to be issues in criminal cases, possible appeals, that related to Mr Jenkins? Is that what you’re trying to say?
Anthony Robinson: I wasn’t talking about appeals.
Mr Stein: Right. So what criminal cases were you talking about that you were trying to signal to the judge involved Mr Jenkins?
Anthony Robinson: The Misra trial and other criminal cases in which he had been involved as an expert witness.
Mr Stein: In what way was that going to be a future event that you were trying to signal to the judge?
Anthony Robinson: I don’t understand your question.
Mr Stein: Well, you were trying to flag something to the judge. You’re trying to say to the judge, “Look, there’s a situation here regarding Jenkins and his involvement in criminal cases”.
Anthony Robinson: Yes.
Mr Stein: You’re trying to flag that up, yes?
Anthony Robinson: Yes.
Mr Stein: Now, “flagging up” seems to say you’re providing some sort of warning for the future. What do you –
Anthony Robinson: Why do you say that?
Mr Stein: Well, you explain, then, what you mean by flagging it up to the judge?
Anthony Robinson: What I was flagging to the judge – well, what we were flagging to the judge was that there were – had Mr Jenkins been called as a witness, there would have been questions asked of him relating to the things he said and did not say in criminal prosecutions, including, in particular, the Misra case because that was actually the subject of evidence from Professor McLachlan. That’s what was being signalled to the judge. That’s only relevant – it would only be a relevant thing to signal if there was material to suggest that he had made previous inconsistent statements.
Mr Stein: Did you explain the signal or this flag to the judge to your opponent? That’s leading counsel, Patrick Green QC as he then was, KC as he now is?
Anthony Robinson: I have no recollection of discussing this with Mr Green at all. That is – if I may say so, that’s a slightly unreal question. We’re all – we were all in that court, we were all experienced litigators. I appreciate I’m using that expression several times now but we all know what’s going on. It was adversarial litigation. There is no way in the world that Mr Green thought I was making some reference to some future event. Mr Green would have known precisely what I meant.
Mr Stein: Did Mr Green know that there had been concerns expressed by criminal lawyers that Mr Jenkins had misled a court; did he know that?
Anthony Robinson: I have no idea. I would –
Mr Stein: To your knowledge –
Anthony Robinson: Please let me answer.
Mr Stein: – did he know that?
Anthony Robinson: Please let me answer the question. However, I would say this: I have no doubt that Mr Green knew that there were criticisms being made of Mr Jenkins’ performance as an expert witness in criminal cases. Of course he knew that.
Mr Stein: To your knowledge, did Mr Green know or his team know that there had been concerns expressed by criminal lawyers that Mr Jenkins had actively misled courts?
Anthony Robinson: I’ve already answered that question.
Mr Stein: No, you haven’t. You’ve diverted yourself from the answer.
Anthony Robinson: If I may say so, that is not a proper point to put to me –
Sir Wyn Williams: Can I stop before you start, Mr de Garr Robinson. I don’t want a situation developing where you and Mr Stein have an argument. So I’d be grateful if you both – first, Mr Stein ask the question and then, secondly, you give your answer without either of you trying to chop down the other, if you see what I mean.
Mr Stein: Yes, I do, sir.
The Witness: Very good, my Lord.
Mr Stein: Did Mr Green know, as you did, that Mr Jenkins had been viewed by criminal lawyers, instructed on behalf of the Post Office, that he had misled the court; did he know?
Anthony Robinson: I imagine not.
Mr Stein: Right. Now, help us understand the overall position. Many of my clients, certainly not all, are people that were involved in the GLO litigation, the High Court litigation, okay, as litigants. Now, help us understand a bit more, using as non-lawyer language as possible, why wasn’t disclosed within the litigation that Mr Jenkins had – was understood to have misled courts?
Anthony Robinson: The source of my knowledge on that question was some legal advice that had been given five, six years previously, to Post Office. That was privileged. It wasn’t in my gift to reveal it to the claimants. That was privileged and I didn’t have instructions to waive previously.
Mr Stein: Right. Did you ever consider that question, this question of privilege, privilege meaning that you would be unable without permission to disclose it? Did you ever look into that and think to yourself: is this actually privileged information; did that occur to you?
Anthony Robinson: It didn’t occur to me that – I can’t imagine it would have occurred to me that it was not privileged. Why would I think it was not privileged?
Mr Stein: Did you look into the source of the information that led to the view that Mr Jenkins had misled the court? Did you consider that, in other words whether that source of information was privileged or not?
Anthony Robinson: The – all I looked at was what was set out in Mr Clarke’s note, and that note is privileged, as far as I’m aware.
Mr Stein: So you’d looked at the note, decided that that was privileged because it’s a note from a lawyer, drafted by Mr Clarke, a lawyer at Cartwright King, and that, for you, was sufficient to say it’s privileged, can’t go near it; is that fair?
Anthony Robinson: Yes, and if I made a mistake then I made a mistake, but that’s still how I look at it now.
Mr Stein: Right. One last question and then I’ll finish: did you consider the criminal exception to privilege, sometimes called the iniquity exception to privilege; did that cross your mind at all?
Anthony Robinson: No, and I just don’t remember thinking about these things in those ways. It’s not – it wasn’t in my gift to reveal to the court what Mr Clarke had said in that note.
Mr Stein: No further questions.
Sir Wyn Williams: Thank you, Mr Stein.
Who is next?
Mr Beer: I think it’s Mr Henry.
Questioned by Mr Henry
Mr Henry: Hello, Mr de Garr Robinson.
Could we go to POL00140216, please, and it’s your email of 1 June 2016. While it’s being brought up – can we scroll up, please.
It’s point 2 in your PS that I want to concentrate on.
Thank you very, very, very much indeed.
Now, you pose in that email a number of interesting questions to Mr Parsons, including whether the expert evidence previously relied upon from Fujitsu was wrong or misleading, and you were drawing a distinction, were you not, between the existence of bugs, which you refer to as “the previous exercise”, and the apparently misleading conduct of the expert, which was a separate issue.
Anthony Robinson: I’m sorry –
Mr Henry: Let me read the paragraph to you:
“When did we become aware of the possibility of remotely altering branch data on Horizon, and why did we not become aware of it long ago? Is the fact that we consistently claim the opposite our fault, or Fujitsu’s? Does it mean that the expert evidence that we have previously relied on from Fujitsu was wrong/misleading? And have we already embarked on an exercise to determine whether this makes any or all of the previous convictions unsafe, as we did with the previous exercise with the previous revelation about the Fujitsu bugs? If not, why not?”
So you’re drawing a distinction there, aren’t you, between the previous exercise, namely the issue of the bugs, with the separate subject of the misleading expert evidence and also the possibility of remotely altering branch data?
Anthony Robinson: Yes.
Mr Henry: Yes. Exactly. Now, so you clearly identified that distinction, what I’m going to call the tainted Fujitsu witness point. This isn’t to in any way embarrass you but you were very frank about your having no criminal experience at all, do I take it, therefore, that you’ve never sat as a Crown Court recorder?
Anthony Robinson: Correct.
Mr Henry: So, notwithstanding all of that and the fact, as you admit, that you’ve had no practice or practical experience in criminal law, you clearly identified that point: the misleading evidence point from the expert?
Anthony Robinson: Yes, I imagine it – I did so as a result of something that was said in the claimant’s letter before action but I can’t be sure about that.
Mr Henry: But you clearly identified it because, otherwise, you wouldn’t have written it down as you did.
Now, could I just ask you to consider this. If there had been successful criminal appeals between 2013 and 2019 that blew open the existence of Gareth Jenkins’ misfeasance, that would have made the Horizon Issues trial much more difficult to defend, wouldn’t it?
Anthony Robinson: But by this stage, had there not already been appeals on the basis of – I’m sorry, I can’t now put together the chronologically in my head.
Mr Henry: Don’t worry. Let me just put the question to you again. If there had been successful criminal appeals between 2013 and 2019 –
Anthony Robinson: Oh, I see.
Mr Henry: – that had blown open the existence of Gareth Jenkins’ misfeasance, that would have made the Horizon Issues trial much more difficult to defend, wouldn’t it?
Anthony Robinson: No, I don’t think so. It would have made – it would have reinforced the desirability of not relying on any evidence from Gareth Jenkins, certainly.
Mr Henry: Well, if there had been number of successful criminal appeals exposing that the Post Office had called an expert, the Chief Architect of the Horizon system, who breached his duty to the court and had misled juries and Magistrates orally and in writing, failing to disclose the existence of bugs, errors and defects, that surely would have gravely, perhaps fatally, undermined your defence?
Anthony Robinson: You overlook what the questions were in the GLO proceedings. The questions were: (1) what were the parties’ rights and obligations under the postmaster contracts; (2) were there bugs that had caused deficiencies, shortfalls in postmaster accounts which were lasting, in other words which hadn’t been fixed; and (3) were there cases of remote access by Fujitsu which resulted in false shortfalls being created, not generally but in relation to the claimants?
Mr Henry: Well, the –
Anthony Robinson: The question of appeals of – in certain criminal proceedings, about which I know nothing, being successful and the basis upon which they were successful, would have had no direct impact on those questions. There would still have needed to be evidence about what bugs there were, whether those bugs had any impact on the claimants’ accounts, what remote access occurred and whether the relevant acts of remote access had any impact on the claimants’ accounts.
So I’m afraid I don’t accept your – the point that you’re trying to put to me, which is that had the process, the criminal appeals process, taken place quicker than it, in fact, did, that would somehow have meant that Post Office would have had to have admitted defeat in the GLO proceedings. That’s not right at all.
Mr Henry: Well, those criminal appeals would have answered points 2 and 3, wouldn’t they? Because those criminal appeals, based upon an exposé of Gareth Jenkins, would have addressed the existence of bugs, errors and defects and whether they were lasting and caused loss, and, also, they would have blown open the issue of remote access.
Anthony Robinson: I think you’re assuming that there would – that the Criminal Court of Appeal would have considered whether there were bugs that actually caused specific loss to specific claimants or whether there was actions of remote access that caused specific loss to specific claimants. I find that supposition almost impossible to believe.
Mr Henry: But surely there would have been a risk? I mean, we have just seen the Herbert Smith attendance note:
“Anyone who has dealt with Gareth would know that he would kill our case.”
“Anyone who has dealt with Gareth would know that he would kill our case”, and, if that had all been exposed between 2013 and 2019, it would have put the Post Office in a very, very difficult position.
Anthony Robinson: It would have been unpleasant for the Post Office, of course, yes.
Mr Henry: Well, let’s just deal with the other side of the coin, the converse position. Had you called Gareth Jenkins in the Horizon Issues trial, you would have had to have disclosed that he had given false evidence, misleading the jury in written and oral evidence and had breached his duty to the court. That surely can’t be controversial?
Anthony Robinson: I’d need to think about that. I’m not – on what basis would it have been – I’m not saying that – it might have been – there might have been very good reasons for Mr Jenkins to have addressed the matter upfront in his witness statement, rather than it being elicited in cross-examination, but I don’t understand the legal basis upon which you advance that proposition.
Mr Henry: Well, it has to be part of the discovery process, surely. You can’t call somebody and suppress the fact that he’d given false evidence, misleading the jury in written and oral evidence and had breached his duty to the court. I mean, that can’t possibly be right. I mean, are we completely at cross purposes here?
Anthony Robinson: I think we may be because what I – perhaps it might be helpful if I remind you – is that in the GLO proceedings, it was one of the early cases in which – that disclosure was ordered in – under the pilot scheme, which is now PD57, I think, AD. During the GLO proceedings, there was no duty to give standard disclosure. What happened is that the parties identified narrow categories of documents in relation to which disclosure should be given. The – so – I mean, I wouldn’t – you’re raising a question with me which I’d need to consider further but it’s not obvious to me that all of those things would have needed to be disclosed.
I’m not saying you’re wrong; I’m just saying I would need to think about it much more carefully.
Mr Henry: I see. So you need to think carefully about the fact that, if you had called Gareth Jenkins in the Horizon Issues trial, you would need to reflect carefully on whether you would have to disclose that he had given false evidence, misleading the jury both in writing and orally, in Seema Misra’s case, and had breached his duty to the court; does that reflect your answer?
Sir Wyn Williams: Well, Mr Henry, if I can intervene, I know enough about both criminal and civil disclosure to be able to say that there are very significant differences and that we mustn’t assume the overlap that you are assuming.
Mr Henry: I’m so sorry, sir. Well, then I’ll leave it there.
But could I just ask this: those matters surely – to use your phrase – even an experienced litigator would have had to have had telepathic powers to grasp all that, the courts had been misled, that Jenkins was in breach of his duties as an expert, et cetera, et cetera, and so, therefore, the explanation given to Mr Justice Fraser, as was, was by no means the full picture?
Anthony Robinson: I don’t accept the proposition that – from paragraph 144.1, that one doesn’t – one can’t see the essence of what’s being – what’s being signalled to the judge. I’m afraid I just don’t agree with you. I could go over the point again, if you like –
Mr Henry: No, no need to.
Anthony Robinson: – but that is my view.
Mr Henry: Could I just ask you to consider the words you used to Herbert Smith that he would have been killed at trial. How would he have been killed at trial, if none of this had come out?
Anthony Robinson: I don’t understand your question. He would have been killed – what I meant by “he would have been killed at trial” is that, had he given evidence at trial, he would have been cross-examined on the statements that he had previously made in other criminal proceedings and, as a result of that cross-examination and as a result of what I’d seen in Mr Clarke’s note, the likelihood is that the court would have come to the view that he was an unreliable witness. That’s what I meant by “killed at trial”.
Mr Henry: I see. So he’d have been dead in the water, if he’d been called –
Sir Wyn Williams: I don’t know whether it matters if it is “killed at trial” or “dead in the water”.
Mr Henry: But it would have been very public, wouldn’t it? It would have attracted purposes and interested parties inside and outside the JFSA would have become aware of his apparent misfeasance?
Anthony Robinson: Perhaps. That’s not something that was in my mind at the time.
Mr Henry: All I’m suggesting is, again, that knowledge of this wrongdoing would have promoted appeals and that would have been damaging again to the Post Office, a proliferation of appeals which would have been politically embarrassing but would also give rise to the prospect of further civil litigation?
Anthony Robinson: Again, you’re raising issues that were not in my mind when I – and the rest of the Legal Team – came to the conclusion that it would not be in Post Office’s interests to call him as a witness.
Mr Henry: Are you sure they weren’t in your mind, Mr de Garr Robinson?
Anthony Robinson: In my mind, certainly, yes.
Mr Henry: Do you think, on reflection – and this is my last subject and topic with you – that you were, to some extent, captive to your professional and lay client advancing again and again, inadvertently no doubt, misleading submissions to the court and also –
Anthony Robinson: What – which submissions are you referring to?
Mr Henry: Well, for example, the KEL submission, that the KELs weren’t under the control of the Post Office and that the KELs were irrelevant. I mean, that was hardly a respectable submission to make. Why didn’t you challenge the Post Office when those instructions were given to you?
Anthony Robinson: That is the most extraordinary question. If I could just unpick it for a moment, the question as to what the Known Error Log contained was raised at a very early stage and the relevant paragraph of the defence was served at a very early stage. It was served on the basis of instructions from Post Office that would have been based upon information provided by Fujitsu, that the Known Error Log was a trivial document that dealt with issues that had nothing to do with the issues that the GLO proceedings were concerned with.
Similarly, my instructions that the Known Error Log was not in Post Office’s control would have been based on instructions I received from Post Office through WBD. Now, I had – there was absolutely no basis, back in 2017, July 2017, when the defence was served, there was absolutely no basis to question those instructions, and you have not suggested a single reason why I should have refused to accept what I was told and insisted on cross-examining my clients and insisting on further evidence. If it’s a principle – if one were to conduct complex litigation on the basis on every single point that a client needs to produce evidence to his barrister to satisfy the barrister that the point is actually right, it would be impossible ever to draft a defence.
Mr Henry: But again and again, as is clear from the Horizon Issues judgment, again and again, in particular, for example, information received from Mr Parsons was shown to be wrong?
Anthony Robinson: Not when the defence was served in July 2017.
Mr Henry: But, as the case continued, perhaps, did it ever occur to you that you had been misled?
Anthony Robinson: I’ve described my experience of the case and how unsatisfactory my instructions are in my witness statement. I think to say “misled” – I was certainly misled about whether the Known Error Log was in Post Office’s control and I – and certainly I would have thought Post Office as well – from my perception, Post Office as well – was misled about whether it contained any issues that would have been relevant to the GLO proceedings. So, on that question, yes, I certainly accept that I was misled and, as I say, I was very surprised when I discovered the truth.
Mr Henry: So at last we can agree on something, Mr de Garr Robinson, thank you very much.
Mr Beer: Sir, the last set of questions are from Ms Dobbin.
Questioned by Ms Dobbin
Ms Dobbin: Mr de Garr Robinson, I ask questions on behalf of Gareth Jenkins. My name is Clair Dobbin. I hope you can hear me all right.
Anthony Robinson: I can just about.
Ms Dobbin: Good. Mr de Garr Robinson, you have been asked number of questions about Mr Jenkins’ reliability. May I start by asking you whether or not, in fact, you saw any of the witness statements that he made in any criminal proceedings?
Anthony Robinson: None at all.
Ms Dobbin: Did you read the transcript of the evidence that he gave –
Anthony Robinson: None –
Ms Dobbin: – in the Misra trial?
Anthony Robinson: I’m so sorry, none at all.
Ms Dobbin: Did you see any of the communications, for example, he had with Post Office lawyers in the course of prosecutions conducted by Post Office?
Anthony Robinson: None at all.
Ms Dobbin: I think you confirmed, in fact, to my learned friend Mr Beer that you never spoke to Mr Jenkins, I think, throughout the civil proceedings?
Anthony Robinson: I don’t recall ever having spoken to him or having met him.
Ms Dobbin: I think that you said in answer to one question that, whenever the question of relying on Mr Jenkins was raised at an earlier stage, that you didn’t give any thought to whether he understood the position that he was in, in other words that he was, on the one hand, subject to a criticism by Post Office in respect of expert evidence that he had given but, on the other hand, Post Office might need to rely on him, correct?
Anthony Robinson: I think the answer is – it’s a long question but I think the answer to it is, yes.
Ms Dobbin: I’m sorry for asking a long question. This one is shorter. Did that remain the position throughout the litigation, Mr de Garr Robinson, that you never really thought or considered the question of whether or not Mr Jenkins knew the position that he was being put in?
Anthony Robinson: I never considered that.
Ms Dobbin: All right. In terms of the way that the litigation was conducted – and I’m going to try and do this shortly without recourse to many, many underlying documents, it is right, isn’t it, that there was a number of people in Fujitsu who were providing assistance to those who were giving evidence in the civil proceedings?
Anthony Robinson: Yes.
Ms Dobbin: It’s also right that there was a team of people who were also providing some assistance in relation to the expert evidence that was being given by Dr Worden; is that also correct?
Anthony Robinson: I think there must have been although I was unaware of any – I didn’t know what contact there had been between Dr Worden and Fujitsu. But I was aware that Dr Worden wanted contact, hence the need for a protocol.
Ms Dobbin: Right. I was going to ask you that: it’s your understanding that that contact was, in fact, mediated in the way that your protocol foresaw; is that correct?
Anthony Robinson: That was my understanding of how it worked.
Ms Dobbin: All right. In terms of the number of people who were assisting from Fujitsu, was that because a number of different people were needed because of the multiplicity of issues that fell to be determined in the trial?
Anthony Robinson: I think it may also – in part.
Ms Dobbin: Yes?
Anthony Robinson: Because there were questions about Fujitsu documents, and so on, but also, I think in part because the ground rush leading up to the commencement of the trial was so intensely busy. Initial evidence was served at the end of September 2018, then there was supplemental evidence in mid-November 2018 and then we get into the trial in the beginning of March. During that same process, expert evidence – enormous expert reports were served. So the result is that the period of the preparation of evidence was extraordinarily intense. There was no time to do anything and, as a result of the lack of time, I think what happened was that more people were pulled into the process for Fujitsu than otherwise would have been necessary. And I think that may have been adverted to in one of Johnny Gribben’s emails that I looked at this morning.
Ms Dobbin: Yes. How sighted were you on that underlying process or were you the recipient of work that was being done by others, that perhaps synthesised, for example, underlying analysis?
Anthony Robinson: I was the recipient, in some cases a quite resentful recipient because there were other things I wanted to get on with.
Ms Dobbin: All right, so if I wanted to ask you questions, for example, about what you know about Mr Jenkins’ correcting some of the evidence that had been given about remote access, is that the sort of work that might have been going on that you would not have been sighted on or would you have known about that kind of work?
Anthony Robinson: I would not have known. All I would have been told was the outcome of the process by which Fujitsu were – was providing relevant information for use by the legal team. I wouldn’t have been aware of information being produced that was then corrected by any particular person. It’s not – that’s not something I would have – would have been of any great interest to me.
Ms Dobbin: All right. So does it follow that you didn’t know that Mr Jenkins was, for example, or did work then, to correct evidence that had been given about remote access?
Anthony Robinson: I – I’m not aware of – I wouldn’t have been aware of that at the time.
Ms Dobbin: Right. I’m grateful. Thank you. Those are my questions.
Mr Beer: Sir, that’s the end of the questioning of Mr de Garr Robinson.
Questioned by Sir Wyn Williams
Sir Wyn Williams: Mr de Garr Robinson, at the conference of 10 September 2018, which, if I’ve got my note in correct order, is the conference at which it was decided that Mr Jenkins would not be called as a witness, am I right in thinking that, essentially, the material which justified that decision was the advice written by Mr Clarke and such oral elaboration about it which he gave you at the conference?
Anthony Robinson: That’s correct.
Sir Wyn Williams: So, again, putting it entirely neutrally, your agreement to that course of action was wholly dependent on Mr Clarke’s assessment of the situation?
Anthony Robinson: Yes.
Sir Wyn Williams: One other matter.
In closing the Horizon Issues trial, it was decided appropriate to give reasons to Mr Justice Fraser as to why Mr Jenkins had not been called. Yet, if I read Mr Justice Fraser’s judgment correctly, there had been no attempt to adduce any evidence about that previously?
Anthony Robinson: That’s correct.
Sir Wyn Williams: I may be a bit out of date, Mr de Garr Robinson, but I don’t actually think that I ever encountered a situation – either as a barrister or a judge – in which the judge was provided reasons for a witness not being called which were wholly unsupported by evidence. Am I being out of date and old-fashioned, or was this somewhat unusual?
Anthony Robinson: I find it difficult to answer that question. I’m not aware of any change in the law in recent years which would change the practice that you have referred to.
Sir Wyn Williams: I haven’t misdescribed the practice, have I, because I think Mr Justice Fraser did go out of his way to say that no evidence had been given to provide an explanation in the trial?
Anthony Robinson: The – during the course of proceedings, there can often be occasions when counsel inform the judge as to the reasons why particular things were and were not done without the need for a witness statement. I should say, however, that I don’t think that paragraph 144 was drafted with any expectation that it would provide Post Office with any enormous comfort. There was no expectation that the judge would think, “Oh, well, that’s all right then”.
It was just – the intention, I think, probably would have been to mitigate the point rather than to sort of explain it away.
Sir Wyn Williams: That was really my last question: what was the purpose of it?
Anthony Robinson: I’m not – to be honest, I’m not really clear. That must make me seem rather foolish but I look at paragraph 144 and I ask myself what good was it actually going to do at the end of the day? And the answer is I can’t actually think of any practical good it was going to do. It wasn’t going to affect the judge – you know, cause the judge to change his mind on any relevant issue. So I do find myself scratching my head as to why we even bothered, why counsel even bothered including it in the closing submissions. But I appreciate that’s – must sound rather odd to you.
It sometimes happens when you’re drafting things in a big rush. You end up including things that, with the benefit of a cold reflection, perhaps you would have left out.
Sir Wyn Williams: All right. Thank you very much.
So thank you for providing both your witness statements and thank you very much for giving evidence to the Inquiry this morning – well, into this afternoon.
So we’ll adjourn until when, Mr Beer?
Mr Beer: Can we say 2.30, please. So the full hour. We will be able to fit Lord Grabiner in comfortably.
Sir Wyn Williams: Fine. Thank you very much.
(1.28 pm)
(The Short Adjournment)
(2.30 pm)
Mr Beer: Good afternoon, sir, can you see and hear us?
Sir Wyn Williams: Yes, I can, thank you very much.
Mr Beer: Thank you. May I call Lord Grabiner KC, please.
Sir Wyn Williams: Of course.
Lord Anthony Grabiner KC
LORD ANTHONY STEPHEN GRABINER KC (sworn).
Questioned by Mr Beer
Mr Beer: Good afternoon, Lord Grabiner. As you know, my name is Jason Beer and I ask questions on behalf of the Inquiry. Can you tell us your full name please?
Lord Anthony Grabiner KC: Anthony Stephen Grabiner.
Mr Beer: Thank you very much for the provision of a witness statement to the Inquiry, and for attending the Inquiry today to assist us in our investigation.
Can we start with your witness statement, please. It’s 13 pages long, it’s dated 3 May of this year. Can we have it on screen as well as you looking at the hard copy. WITN10640100. I think there are two corrections you would like to make the first of which appears on page 6, in paragraph 16, six lines in, which reads:
“… me of 20 March timed 13.12 and my reply timed 14.38 …”
Would you wish to change the time of the reply from 14.38 to 11.17?
Lord Anthony Grabiner KC: That’s correct.
Mr Beer: Sorry, 11.27.
Lord Anthony Grabiner KC: Forgive me, that’s not correct; that is correct, yes.
Mr Beer: Yes, thank you. As we’ll see later when we look at the email, that is indeed the case: that the reply is timed before the originating email.
Then the second correction, which is to the same effect, on page 8 of the witness statement. Do you have that?
Lord Anthony Grabiner KC: Yes, on page 8. It’s paragraph 20, yes.
Mr Beer: Top line:
“My reply timed at 11.27, and Lord Neuberger’s response timed 14.38 …”
Is there any correction you wish to make to that?
Lord Anthony Grabiner KC: I think it’s the same correction because it’s the same email. It’s just a timing issue.
Mr Beer: I think your reply is, in fact, timed at 11.27 so I think that’s probably correct.
Lord Anthony Grabiner KC: Yeah.
Mr Beer: Subject to those points, are the contents of that witness statement true to the best of your knowledge and belief?
Lord Anthony Grabiner KC: They are.
Mr Beer: Your signature appears, I think, at the end, at page 13; is that right?
Lord Anthony Grabiner KC: It does.
Mr Beer: Thank you very much. The witness statement can come down.
Can I start, Lord Grabiner, with your background, please. You were, I think, called to the Bar in 1968; is that right?
Lord Anthony Grabiner KC: Yes.
Mr Beer: You took silk in 1981?
Lord Anthony Grabiner KC: I did.
Mr Beer: You have, and you had at the material times to the Inquiry, a commercial practice specialising in banking and finance, energy oil and gas, civil fraud, competition and merger investigations, and shareholder disputes; is that right?
Lord Anthony Grabiner KC: That’s correct.
Mr Beer: You were the head of One Essex Court chambers from 1994 until, I think, very recently, so for 30 years?
Lord Anthony Grabiner KC: A couple of weeks ago.
Mr Beer: You acted in the Post Office Group Litigation brought against it by subpostmasters concerning both their contractual relationship with the Post Office and the operation of the Horizon system but yours, is this right, was a limited involvement centring on the application to recuse Mr Justice Fraser?
Lord Anthony Grabiner KC: Yes.
Mr Beer: I’m going to call him Mr Justice Fraser, despite his subsequent elevation. You applied on behalf of the Post Office to Mr Justice Fraser that he should recuse himself as managing judge of the Post Office Horizon litigation?
Lord Anthony Grabiner KC: Correct.
Mr Beer: I should make it clear, Lord Grabiner, that, right at the outset, the authoritative factual and legal position in relation to each of them is addressed and established by Mr Justice Fraser’s Common Issues judgment, judgment number 3, dated 15 March 2019; and his recusal judgment, judgment number 4, dated 9 April 2019; and, insofar as they are relevant, by the Court of Appeal’s decisions refusing permission to appeal against the recusal judgment, that’s 10 May ‘19, and the Common Issues judgment, dated 16 November 2019.
So consistently, and consistently with the approach you yourself adopted in your witness statement, I shall not be exploring the legal and factual position that’s established by each of those judgments, understand?
Lord Anthony Grabiner KC: I understand.
Mr Beer: Thank you. Can I turn to your first instruction then in the recusal application. Is this right: you were instructed on Friday, 15 March 2019?
Lord Anthony Grabiner KC: That’s correct.
Mr Beer: We’ll look in a moment at the means by which you were instructed but, just to orientate ourselves in the chronology, the Common Issues trial before Mr Justice Fraser had concluded – it had concluded on Friday, 8 March 2019 – and he had distributed the draft Common Issues judgment under embargo to the parties; is that right?
Lord Anthony Grabiner KC: I think that’s correct, yeah.
Mr Beer: Thank you. On Monday, 11 March, so the following Monday, the Horizon Issues trial had started in the High Court?
Lord Anthony Grabiner KC: Yes, that’s correct. I think the draft of the judgment had been delivered on the Friday before 11 March.
Mr Beer: Yes, on Friday the 8th, yes. You had had no involvement in the Post Office Horizon litigation before Friday, 15 March 2019?
Lord Anthony Grabiner KC: None whatsoever.
Mr Beer: So let’s look at your initial instruction, then. Can we look, please, at WITN10650106, which, if you’re using a hard copy is B2. It will come up on the screen for you, Lord Grabiner. Can we turn to page 6 of that document, please. If we just scroll down, we’ll see this is an email from Rob Smith, who I think is your clerk –
Lord Anthony Grabiner KC: Yes.
Mr Beer: – to you and others, saying:
“Tony,
“The solicitors have confirmed that they would like you to read up and get fully up to speed on the issues. They are yet to decide if they will make the application but want to be in a position to make the application as quickly as possible if they decide to go.
“David [that’s David Cavender], if you have not already can you bring Tony up to speed on all the goings on. Gideon [Gideon Cohen] you are the junior to Tony. If you feel that Stephanie is needed to assist please let me know.”
Was Stephanie another potential junior?
Lord Anthony Grabiner KC: Yes, a member of my chambers.
Mr Beer: So that’s the morning of 15 March at 10.42. Can we go forwards to page 4 of the email chain, please. If we look at that email, timed 11.58 – thank you – this your email, and you say:
“I’ve read Gideon’s note on the background and DN …”
Is that David Neuberger, Lord Neuberger?
Lord Anthony Grabiner KC: It is indeed.
Mr Beer: “… [I’ve read Lord Neuberger’s] observations note of 14 March. I plan to read the draft judgment between now and Monday morning but for present purposes I assume the correctness of the passages in Gideon’s note and I also agree with [David Neuberger’s] analysis.”
So, by this time – the following day, Saturday morning, just before midday – you’d read two documents: Gideon Cohen’s note and Lord Neuberger’s observations document?
Lord Anthony Grabiner KC: Correct.
Mr Beer: If we just look at those, please. Firstly, the Gideon Cohen note, POL00023097. That’s tab B3, if you’re –
Lord Anthony Grabiner KC: I’ve got that, thanks.
Mr Beer: – looking at it in hard copies. This what you refer to as “Gideon’s document”, yes?
Lord Anthony Grabiner KC: Correct.
Mr Beer: You’ll see it’s a note on the background to a possible recusal application. If we look at page 29, please, you’ll see that it’s, in fact, signed off by David Cavender, Gideon Cohen and is that Stephanie?
Lord Anthony Grabiner KC: I think so, yes.
Mr Beer: You refer to it as Gideon’s document. Was there a reason for that?
Lord Anthony Grabiner KC: Not that I can recall. It may be that he gave it to me.
Mr Beer: Right. He was the provider of the document to you. We can see that it’s, in fact, signed off by nearly all of the counsel, to –
Lord Anthony Grabiner KC: It is the product of the counsel team, yeah.
Mr Beer: Just go back to page 1. You’ll see it walks the reader into the operation of the Post Office itself and then, over subsequent pages, the operation of the Horizon system the procedural background to the common issues litigation and it gets to, for example, on page 14 – I’m not going to read it all, if we turn to page 14 and scroll down, please – a section between here and the end of the note, so for the remaining 15 pages, analysing the judge’s draft Common Issues judgment.
Lord Anthony Grabiner KC: Correct.
Mr Beer: I think you’d agree that the document is not a neutral document?
Lord Anthony Grabiner KC: No, certainly not. It’s an advocate’s document.
Mr Beer: Yes, it sets out a case –
Lord Anthony Grabiner KC: Yes.
Mr Beer: – ie a case for making an application for recusal?
Lord Anthony Grabiner KC: Precisely.
Mr Beer: I think we can see that from, for example, page 25, under the cross-heading “Vitriol”?
Lord Anthony Grabiner KC: Yes, but I mean it doesn’t follow that that’s not an accurate description.
Mr Beer: No, but, nonetheless, as you’ve said I think, that this was a piece of advocacy?
Lord Anthony Grabiner KC: Well, it was but, I mean, I know the authors of the document and I’m sure that they were making arguments that they thought were properly sustainable.
Mr Beer: Can we look at the second document that you’d read by that midday on the Saturday, Lord Neuberger’s observations document of 14 March. That’s POL00025910.
Lord Anthony Grabiner KC: Yes, I have that.
Mr Beer: That’s your tab B4.
Lord Anthony Grabiner KC: Yes.
Mr Beer: In paragraph 1, Lord Neuberger says that his observations are based on the draft judgment based on a ‘Note on background to possible recusal application’ –
That’s the document we’ve just looked at.
Lord Anthony Grabiner KC: I’m sure.
Mr Beer: – and a discussion with David Cavender Queen’s Counsel. He is not going to set out the facts because they are explained in the note. So he had read the judgment, he had been provided with the note that you’d been provided with and he says he’d spoken to David Cavender.
Can we look, please, at what this assessment of the prospects are, by looking at page 6 of his note, please, and turn to paragraph 19.
Lord Anthony Grabiner KC: Yes, I have that.
Mr Beer: Thank you. He says:
“For all of the reasons set out above I consider that there are reasonable grounds for [the Post Office] to bring an application to recuse the judge in these proceedings.”
Then he turns to a different issue, yes?
Lord Anthony Grabiner KC: Absolutely.
Mr Beer: Now, in the scales that lawyers use, would you understand “reasonable grounds to bring an application” to mean that it is arguable, it is proper to argue it?
Lord Anthony Grabiner KC: Properly arguable but I also know the author extremely well and he’s a very prudent person. I think I’m probably somebody who’s a little bit more aggressive in my advice normally but he’s extremely cautious, and so I take that to mean that this is a serious case that is available to be made.
Mr Beer: But, just focusing on the words for the moment, even though you with your knowledge of Lord Neuberger may think that they mean something than they do on their face, “reasonable grounds” is an assessment of prospects which says it’s proper to argue this case and that distinguishes the case from one where the prospects are fanciful or trivial?
Lord Anthony Grabiner KC: Oh, totally, I agree. There are emails where he does express himself more firmly.
Mr Beer: Yes, we’re going to come to the firming up. I think it’s fair to say that, if this does mean reasonable grounds, in the sense that I’ve described it, the prospects are hardened up over the course of time.
Lord Anthony Grabiner KC: Not because I think there’s been any separate development in the facts, because I think he would have been focusing upon the judgment, as did I, which is an immovable subject, but he does regard it as a strong case, I think. I can’t remember the exact words he uses but I certainly did, and I know that he did as well. But I take your point. I mean, if this wasn’t a sustainable argument he would have been saying that –
Mr Beer: Yes.
Lord Anthony Grabiner KC: – and that’s not what he’s saying.
Mr Beer: You say that, at this point – this is just before lunchtime on the Saturday – that you agreed with Lord Neuberger. You say, “I agree with DN’s analysis”, that is you agreed there were reasonable grounds for an argument for recusal?
Lord Anthony Grabiner KC: Yes, because, of course, at that stage, I don’t think I’d read the judgment.
Mr Beer: Correct. I was just about to ask you. In your case, that’s without reading the judgment itself?
Lord Anthony Grabiner KC: Absolutely. The difference between us was that he had, at that stage, read the judgment; I had not. So I was exclusively relying upon the papers that I’d been presented with.
Mr Beer: That’s the Cavender et al note and David Neuberger’s observations document?
Lord Anthony Grabiner KC: Precisely.
Mr Beer: You say that you agreed that there were reasonable grounds for the argument without reading the draft judgment but also, is this right, without reading any transcripts?
Lord Anthony Grabiner KC: Yes, that’s true.
Mr Beer: Without reading any orders, submissions, witness statements, statements of case?
Lord Anthony Grabiner KC: Yes.
Mr Beer: And, so far as I can see from the papers, your solicitors had not provided you with any materials in this case?
Lord Anthony Grabiner KC: Correct.
Mr Beer: This was just a briefing up by other members of chambers; is that right?
Lord Anthony Grabiner KC: Correct, whose judgment I trust.
Mr Beer: You tell us in your witness statement – there’s no need to turn it up – it’s page 2, four lines from the bottom:
“I also spent time with Messrs Cavender and Cohen, who were able generally to educate me, which was necessary given the time pressure and their background knowledge.”
So, essentially, would this be right, Lord Grabiner, you were really being briefed by colleagues in chambers rather than by your solicitors?
Lord Anthony Grabiner KC: Correct. That’s completely correct.
Mr Beer: You were a comparative latecomer to all of this?
Lord Anthony Grabiner KC: I was a latecomer, yes.
Mr Beer: Who originated the idea of recusal?
Lord Anthony Grabiner KC: I don’t know. I mean, I suspect it – well, I just don’t know, is the answer. I think it already figures in the David Neuberger note and I think it’s already referred to in the counsel note. Certainly, it was on the table before I was instructed.
Mr Beer: They are dated 13 and 14 March respectively, so it was plain that consideration was being given to recusal by at least those two dates. Do you know whether this was being driven – the possible application for recusal – by the solicitors at this stage?
Lord Anthony Grabiner KC: I absolutely don’t know, I’m afraid.
Mr Beer: Do you know whether it was being driven by leading counsel, David Cavender?
Lord Anthony Grabiner KC: I just don’t know.
Mr Beer: At this stage, did you know whether any of this desire potentially to apply to the judge for him to recuse himself came from the Post Office Executive or the Board?
Lord Anthony Grabiner KC: I’m afraid I do not know the answer to that question.
Mr Beer: In these discussions that you had with Messrs Cavender and Cohen, did you get any feel for how the team felt, ie whether they felt, in particular, slightly bruised or slighted by the draft judgment?
Lord Anthony Grabiner KC: Yes, well, I’m sure they were and I’m sure the clients were as well – when I say “clients”, I mean the Post Office – because I think there is a reference in one of the emails to the fact – I think I was told by Jane MacLeod that the decision from the learned judge came as a bolt out of the blue and was rather a shock to them because, according to her telling me, they hadn’t appreciated that he’d taken such a strong view against their position.
Mr Beer: Yes. Can we turn on, then, to the Sunday, by looking at WBON0001768. That’s in your other volume of papers at tab E15.
Lord Anthony Grabiner KC: E?
Mr Beer: 15, 1-5.
Lord Anthony Grabiner KC: This is the core bundle from the other – from the – sorry, this is the other bundle –
Mr Beer: The additional bundle?
Lord Anthony Grabiner KC: – from the core parties. Yes. Yes, I’ve got that.
Mr Beer: Thank you. If we look at the foot of page 1, we’re now at 9.47 on Sunday, 17 March, and there’s an email from Tom Beezer of Womble Bond Dickinson to your clerk, Rob Smith, copied to the partner at Womble Bond Dickinson, Andrew Parsons, and to an associate, Amy Prime. He says:
“Rob
“Sorry for all this contact over the weekend …
“I have had an email from the client at Post Office and they say:
“Ideally, I would like to know by today whether Lord Grabiner is supportive of the recusal application, and if so, to what extent. Are we able to gain any insight on that? Provided that he is, then we should stand up Lord Neuberger for the Board call, and I will be able to feed back the outcome of the meeting with Lord Grabiner (which could be any time from 1.30 [if] that suits him).”
Then he continues:
“So I think the following issues arise:
“Is Lord Grabiner able to indicate today (email to you is fine and then you copy on to me …) if he is in broad agreement with the statement that he is supportive of a recusal application and it having prospects of success.”
Lord Anthony Grabiner KC: Yes.
Mr Beer: “I think [the Post Office] is seeking to flush out whether Lord Grabiner is broadly supportive, as Lord Neuberger was in his note, or whether he takes a different view. If both are aligned, then there’s a [Post Office] Board decision to be taken. If there is a difference of view, then we ([the Post Office] and [Womble Bond Dickinson]) will have to think about how to guide the [Post Office] Board.”
Then there’s a passage that’s not relevant. If we go up the document, please, and keep going.
So that email having arrived at 9.46, your clerk, within five minutes says:
“Morning Tony
“Please see in Red below. Is this workable?”
Then further up the page, you at 10.58, about an hour later, reply to your clerk and copy Tom Beezer in saying:
“I agree with David Neuberger’s approach and I support the recusal application proposal.”
Then you deal with logistics.
Lord Anthony Grabiner KC: Yes.
Mr Beer: So this was the Sunday and Post Office were pressing for an answer whether you took the same view as Lord Neuberger as to the prospects?
Lord Anthony Grabiner KC: Yes.
Mr Beer: Now, I think you say you agree with his approach. You don’t actually separately answer the question of can you give a view as to the prospects of success?
Lord Anthony Grabiner KC: That’s correct.
Mr Beer: Yes. I think the next day, Monday, 18 March, you held a conference call with other members of the existing counsel team, a solicitor from Womble Bond Dickinson, and Jane MacLeod at One Essex Court – when I say conference call, I mean a conference – is that right?
Lord Anthony Grabiner KC: Yeah, I can’t remember, actually, if it was a physical – or physically present or if it was a call, I’m afraid. But we did have –
Mr Beer: I think we’ll see that it was physically at One Essex Court by looking at POL00006397. That’s B13.
Lord Anthony Grabiner KC: Thanks very much. Yes. Well, it says I attended by phone, you see. It says, “Updated note of” –
Mr Beer: Oh, quite right.
Lord Anthony Grabiner KC: So, I mean –
Mr Beer: Hold on. Just slow down a bit. This is a note of two things.
Lord Anthony Grabiner KC: That’s true. You’re quite right, that’s on 20 March, I am with you. You’re absolutely right. So 18 March seems that I was physically present at the meeting there but 20 March, which I’m sure you’ll come to, was my attendance by phone.
Mr Beer: Thank you. If we just see the way this document is constructed, there are two headings right at the beginning and then, if we scroll down the first page over to the second page, and keep scrolling, and stop, we’ll see the first one and a half pages are all about the in-person conference at One Essex Court on 18 March, and then from one and a half onwards is about the dial-in Board meeting on 20 March, understand?
Lord Anthony Grabiner KC: Yes.
Mr Beer: Thank you. If we go back then to page 1, we can see who is present. They’re the people I have outlined. Under the heading “Lord Neuberger’s note”, it records that you explained that you had reviewed Lord Neuberger’s note, the David Cavender note, and that you had substantially reviewed the judgment of Mr Justice Fraser. So, by this time, you’re one document further on than on the Saturday and the Sunday –
Lord Anthony Grabiner KC: Indeed.
Mr Beer: – ie you’ve substantially reviewed the Common Issues judgment?
Lord Anthony Grabiner KC: Yes.
Mr Beer: If we scroll down. You’re recorded as saying that you confirmed that you agreed with the content of Lord Neuberger’s note?
Lord Anthony Grabiner KC: Yes.
Mr Beer: Yes? Again, is that you saying that you agree with his assessment that you agree with the prospects of success of a recusal application as being that there are reasonable grounds to make the application?
Lord Anthony Grabiner KC: I’m not sure that I would have been into that sort of detail. I think what I was saying was I think this is an appropriate case for such an application to be made.
Mr Beer: You then deal with some procedural issues in the next paragraph and at the foot of the page, which is all about urgency. I’m not going to read those now. If we go over the page, please. The next heading is “Duty to act” –
Lord Anthony Grabiner KC: Yes.
Mr Beer: – and then the following heading is “Prospects”; can you see that?
Lord Anthony Grabiner KC: Yes.
Mr Beer: Under “Duty to act” you’re recorded as saying:
“Lord Grabiner explained that in his view if there is no recusal application made then Post Office will lose this series of trials set up in this matter. Without a recusal application Post Office is stuck with this Judge. An appeal on the law may correct some of the very significant errors in the [Common Issues trial] judgment but then the case will be sent back to this Judge who has demonstrable apparent bias against the Post Office and hence the firm conclusion that the Post Office will lose and the financial impact of that will be substantial. Recusal is therefore essential and Lord Grabiner asserted that in the face of legal advice from Lord Neuberger that recusal should be applied for and the quantum of damages that Post Office will pay out on a loss, then it was Lord Grabiner’s view that there was a duty on Post Office to seek recusal. Lord Grabiner stated that in his view the Board of the Post Office had no option but to seek recusal.”
Was that your advice?
Lord Anthony Grabiner KC: Yes. I mean, I didn’t see this document until you provided me with a copy in preparation for this hearing, and that probably explains why there’s – I haven’t signed it off. But, that said, I think that that accurately summarises the substance of the advice that I gave.
Mr Beer: I mean, in fact, we know that this document was sent off to Gideon Cohen with a request that he put it before you to sign it off –
Lord Anthony Grabiner KC: Mm-hm.
Mr Beer: – and, as with some good juniors, he said in reply “I think Lord Grabiner will be busy”.
Lord Anthony Grabiner KC: Very kind of him.
Mr Beer: But he, in fact, signed it off as accurate?
Lord Anthony Grabiner KC: I see. Fine.
Mr Beer: You’re saying to us that that is a fair reflection of the substance of the advice you gave?
Lord Anthony Grabiner KC: I think it is, yes.
Mr Beer: Thank you. Were you saying that the Post Office was under a legal duty to apply for recusal?
Lord Anthony Grabiner KC: No, I think that what I was saying was that, if they didn’t apply for the recusal then they would never be able to make any complaint at all about the conduct of that trial. There are two separate issues here. One is the content of the judgment, and the issues that might have given rise to an appeal, and the other issue is the complaint that the trial judge had, as I put it elsewhere, I think, trespassed into territory that impacted the other trials. In particular the Horizon trial, which is yet to come. And I think what I was saying was that, if they didn’t make that recusal application at that time, it simply, in the real world, wouldn’t be open to them to make that complaint subsequently.
Mr Beer: So this, where it says under the heading “Duty to act” and in the penultimate line, there was a duty to seek recusal, that shouldn’t be taken to refer to a legal duty on the Post Office Board –
Lord Anthony Grabiner KC: No.
Mr Beer: – that it might owe, for example, to its shareholder or others?
Lord Anthony Grabiner KC: No, absolutely not. It’s a piece of advice given by a lawyer to a Board of directors as to how he thinks, as the adviser, they should proceed, and it was firmly expressed.
Mr Beer: So there wouldn’t be any legal consequences for the Board if they decided not to apply for recusal. They wouldn’t be in any breach of duty?
Lord Anthony Grabiner KC: That’s right, except that they would end up losing all the trials and, on the face of it, if they had a perfectly good argument to make in relation to the conduct of the first trial, they would have, in effect, blown the possibility of being able ever, subsequently, to take that point.
Mr Beer: Would you agree that it’s one thing to say to a client that taking a step in litigation is desirable or important or essential, is one thing, if they wish to win the litigation, but that they’re under a positive duty to take that step is very strong indeed?
Lord Anthony Grabiner KC: No, I agree. And I think I’ve agreed with your point that – if it was your point – that they didn’t have a legal duty to do that. I’m simply advising them as a lawyer as to what I think they ought to do, and that’s what I’m paid to advise them about.
Mr Beer: This first section here, which comes before an analysis of the prospects of success, is all about the consequences for the Post Office if it doesn’t seek to get rid of the judge; is that right?
Lord Anthony Grabiner KC: Yes.
Mr Beer: It’s all about consequences, not prospects of success?
Lord Anthony Grabiner KC: Well, there is a reference to prospects of success –
Mr Beer: We’re going to come to that in a moment.
Lord Anthony Grabiner KC: In the next paragraph, yes.
Mr Beer: Your analysis was what needs to be done if you want to win this relation overall –
Lord Anthony Grabiner KC: Yes.
Mr Beer: – is get rid of the judge because, otherwise, you’re stuck with him for the next trial?
Lord Anthony Grabiner KC: Well, you put it rather bluntly but, basically, yes.
Mr Beer: You then turn to the prospects of success.
Lord Anthony Grabiner KC: Yes.
Mr Beer: The note says:
“Lord Grabiner stated that:
“[1] there were strong arguments in favour of an application for recusal …”
That seems to be harking back to how desirable it is to make the application, rather than its prospects of success, doesn’t it?
Lord Anthony Grabiner KC: Well, there may be a difference without a difference there. I’m not sure that – I didn’t draft these words. I mean, those are a fair attempt to record what I said but there’s a bit more subtlety in your question than I think is justified by the language of the note.
Mr Beer: The second bullet point is that it was your strong view that a recusal application was the right course of action. Again, that’s a different issue as to what the prospects of success are?
Lord Anthony Grabiner KC: That’s true but, in a sense, they are bound up together, aren’t they?
Mr Beer: Well, sometimes one may advise clients to take a step in litigation, even if it enjoys low prospects of success, because of the consequences if they don’t?
Lord Anthony Grabiner KC: No, but I did describe it as the “right course of action”, according to this note. So if I thought that there were very slim prospects of success, I’m not sure I would have been saying that was the right course.
Mr Beer: The third bullet point does address head on the prospects of success, doesn’t it?
Lord Anthony Grabiner KC: Yes.
Mr Beer: You’re recorded as saying there is a serious prospect of success?
Lord Anthony Grabiner KC: That was my view.
Mr Beer: Did that represent any change in view from the agreement that you’d expressed on Saturday and Sunday in the emails to Lord Neuberger’s assessment of the maybe more modest reasonable grounds?
Lord Anthony Grabiner KC: Not really. I mean, I had read the judgment by then, and I was satisfied that there were good arguments to be made and that’s all that I was saying.
Mr Beer: Lastly, you are recorded as saying that this judge, Mr Justice Fraser had done an unbelievable nonsense and demonstrated apparent bias. Did you say that?
Lord Anthony Grabiner KC: I did. I’m sure I said words to that effect, yes, and that was my view.
Mr Beer: Can we move on to an email you sent to Lord Neuberger. WITN10650106. That’s tab B2 again, Lord Grabiner, and look at page 2 at the bottom, please –
Lord Anthony Grabiner KC: Yes.
Mr Beer: – the foot of the page. So this is Monday, 18 March, you to Lord Neuberger and others, and you say:
“Dear David,
“We just met with the solicitor – Tom Beezer – and the [General Counsel] from the clients – Jane MacLeod – and had a full discussion.”
That’s the meeting we’ve just read the attendance note on.
Lord Anthony Grabiner KC: Yes.
Mr Beer: “I advised that the clients had no choice but to make the application and that there were strong grounds for doing so.”
That broadly accords with the note that we’ve just read.
Lord Anthony Grabiner KC: Indeed.
Mr Beer: One being no choice, ie they were under a duty to do it; and, secondly, there were strong grounds in terms of the merits of it. This is the part of the email you referred to earlier:
“Jane [MacLeod] explained that the judgment came as a bolt from the blue for the clients because there was no expectation that the judge had formed such a negative view of the [Post Office].
“Her concern is that the Board may not have the stomach for a fight because asking for a judge to recuse himself is [such] a drastic step. [The Post Office] is Government owned and there are Board members who are nervous of the publicity. I [that’s you] said that was a matter for the Board and that members who might be conflicted should step out of the process but that is a matter for them – not me.”
Just stopping there, were you, when you were advising, did you understand of your client’s wish to have impartial views unaffected by the views of those that were already instructed.
Lord Anthony Grabiner KC: Yes, and I think that’s the reason why they had come to me and, indeed, to Lord Neuberger, in the first place.
Mr Beer: Can we go back, then, to WITN10650106 that’s still tab B2 –
Lord Anthony Grabiner KC: Yes.
Mr Beer: – and look at page 3 at the top.
Lord Anthony Grabiner KC: That’s where we were, I think, already.
Mr Beer: Yes, it was. You continue:
“It’s possible that neither David nor Gideon will be asked to participate in your call [Lord Neuberger’s call] – the Board seems to think that they will get a more detached view from you in their absence. I make no comment on that bollox [sic].”
Lord Anthony Grabiner KC: Yes, indeed.
Mr Beer: Then if we go to page 2, please, and scroll down and see Lord Neuberger’s reply. That’s –
Lord Anthony Grabiner KC: Can I say that I think that what I’m talking about there is the presence of both of us, he and I, in the same meeting. I’m not talking about anybody else. The – what seemed to me to be a nonsense was the notion that they wanted to get his view but without me being there, and vice versa.
Mr Beer: I’m not sure that’s entirely accurate but I don’t think much turns on it. If we just go back to the top of page 3.
Lord Anthony Grabiner KC: I’m sure it doesn’t, yeah.
Mr Beer: The line “It’s possible”, which is just at the foot of the –
Lord Anthony Grabiner KC: Yes, I’ve got that.
Mr Beer: “It’s possible that neither David nor Gideon will be asked to participate in your call …”
So that must be neither David Cavender nor Gideon Cohen –
Lord Anthony Grabiner KC: I see, I understand.
Mr Beer: – will be asked but to participate.
Lord Anthony Grabiner KC: I understand. So I’m saying that they might feel they might get a more detached view from you if they’re not present.
Mr Beer: Yes, rather than you versus Lord Neuberger?
Lord Anthony Grabiner KC: I understand but it’s the same point.
Mr Beer: If we go back, please, to page 2 –
Lord Anthony Grabiner KC: It’s still – maybe that’s description is a bit blunt but it’s probably accurate.
Mr Beer: If we go back to page 2, Lord Neuberger’s reply to that part of the email.
Lord Anthony Grabiner KC: Yes.
Mr Beer: It’s the last paragraph as we can see there.
“Excluding them is a bit unfair to David [Cavender] and Gideon [Cohen], but I suppose one can see where [the Post Office] are coming from. I take it that you will be on the call? I am anxious to ensure that nothing I say crosses with what you have said/will say or makes your task more difficult. I have the luxury of expressing a view and then stepping back, whereas you will be presenting the case and are the ultimate adviser.”
Then if we see what you reply to that, at the top of the page, thank you. You say:
“I won’t be on the call …”
Then the reason under the GRO is set out for you not being there.
Lord Anthony Grabiner KC: I think I had a medical appointment. I think that’s what’s covered up there.
Mr Beer: Yes, we redacted it for your benefit.
Lord Anthony Grabiner KC: I mean, my – it explains my absence. It was a perfectly proper justification for my not being there.
Mr Beer: “… and the clients are keen to get your view untrammelled by mine and vice versa. For the same reason I think they’ll prefer not to have the rest of the team on the call.”
Lord Anthony Grabiner KC: Mm.
Mr Beer: So you understood that the clients were keen to get your view untrammelled by Lord Neuberger’s?
Lord Anthony Grabiner KC: Well, they wanted to make sure that they knew what I thought and that they knew thought Lord Neuberger thought, and I think that was the – that was my sense of it anyway.
Mr Beer: But you’d formed your view on the basis of the note written by Messrs Cavender and Cohen and by reading Lord Neuberger’s advice?
Lord Anthony Grabiner KC: Indeed.
Mr Beer: So you had reached a view, trammelled by theirs?
Lord Anthony Grabiner KC: Oh, certainly and – but also forming my own judgement in the process. I want to make it absolutely clear, I would not have made this application unless I personally was entirely satisfied that it was a proper application to make.
Mr Beer: I’m just exploring at the moment how it appeared to the Board. We’re going to hear some evidence about –
Lord Anthony Grabiner KC: I understand.
Mr Beer: – they perceived the opinions had been reached –
Lord Anthony Grabiner KC: I understand.
Mr Beer: – and whether they were, on each occasion, independent advices unaffected by the advice of the predecessor. So you knew that they wanted to get your view untrammelled by Lord Neuberger’s. I think you’ve answered this already: you had formed your view on the basis of what Messrs Cavender and Cohen had said and on the basis of what Lord Neuberger had said?
Lord Anthony Grabiner KC: And on what I had read from the judgment, based upon – I mean, they had participated – Mr Cavender, Gideon Cohen, they had participated in the trial, so they knew exactly what had gone on in the trial and were able to assist me in my reading process. But I formed the judgement I did form by reference both to what they said to me and what they showed me and what I read for myself.
Mr Beer: In his witness statement – I’m not going to display it now but instead just read faithfully the passage from it – Lord Neuberger, that’s WITN10650100, page 9, paragraph 18(g) –
Lord Anthony Grabiner KC: I’ve never seen this.
Mr Beer: No, I’m just going to read you what he says:
“I was anxious not to give advice which was inconsistent with that of Lord Grabiner, as he would be expressing the case and was the ultimate adviser”, which is essentially what’s reflected here?
Lord Anthony Grabiner KC: Indeed.
Mr Beer: So is this right, you formed your view on the basis of what David Cavender, Gideon Cohen and Lord Neuberger has said in their notes but then Lord Neuberger was anxious not to tell the Board anything that was inconsistent with your advice?
Lord Anthony Grabiner KC: Well, what Lord Neuberger thought, I think you’d better ask him about. I can’t really climb into his mind, beyond what he has said in communications that we had between ourselves that I’ve made full disclosure of.
Mr Beer: Now, I think you know that Lord Neuberger had a call with the Board. He was in Argentina at the time, indeed, I think, was in Argentina for the duration of this episode, and so was reading papers that had been emailed to him?
Lord Anthony Grabiner KC: He’s a workaholic.
Mr Beer: You know that he had a call with the Board after your meeting in One Essex Court on Monday, 18 March?
Lord Anthony Grabiner KC: Yes.
Mr Beer: The 5.15 that you were not able to be present at?
Lord Anthony Grabiner KC: Yes.
Mr Beer: Now, I don’t think you were ever shown a minute of that Board meeting. Can we have a look at it, though?
Lord Anthony Grabiner KC: No, I’ve been shown it just before I came in here this afternoon. I’ve never seen it before but I have read it.
Mr Beer: Can we look, please, at POL00027594. Thank you. “Minutes of a call of the Board of Directors of Post Office … on 18 March” at 5.15. You can see who is present or is recorded as being present. Then, if we just scroll down to “Conflicts of Interest”:
“A conflict of interest was noted in relation to Tim Parker as his role as Chairman of [HMCTS].
“A conflict of interest was noted in relation to Tom Cooper in his role as UKGI Director, which as an executive part of government, should not be involved in a decision which related to the judiciary.
“Article 82 of [the] Articles of Association permitted the Board to authorise a director in relation to any matter on the subject of a conflict. The Board determined that Tim Parker and Tom Cooper should be involved in the Board discussions but they would not be party to the decision on whether or not to seek the Judge’s recusal.”
That had been the subject in broad terms of your email advice over the weekend?
Lord Anthony Grabiner KC: Yes, if there was a conflict of interest going on, then that was something they had to sort out as a Board.
Mr Beer: If we can go to page 2, please, and scroll down to paragraph 3, numbered-paragraph 3, where Lord Neuberger’s contribution begins.
Lord Anthony Grabiner KC: Well, isn’t it on page 1 as well, in the second paragraph?
Mr Beer: If we just scroll back up.
Lord Anthony Grabiner KC: “[Jane MacLeod] noted that we had received a written opinion from Lord Neuberger which had been issued on 14 March and which suggested that Post Office had grounds for appeal and for recusal.
Mr Beer: Yes, I’m talking about Lord Neuberger’s own contribution. He only joined for item 3?
Lord Anthony Grabiner KC: I see. Forgive me, yes.
Mr Beer: Item 3 then, “Lord Neuberger’s overview”.
Lord Anthony Grabiner KC: I see. Forgive me.
Mr Beer: “Lord Neuberger joined the call and was introduced to the Board. He set out the main courses of action that [Post Office] could consider at this juncture:
“1. Accept the judgment
“2. Take an orthodox defensive position and seek to appeal. This was an entirely justifiable approach and a number of the judge’s decisions were open to attack and appealable from a preliminary reading of the judgment.
“3. Seek recusal: the most aggressive approach.
“The arguments for not accepting the judgment as it stood included that the judge had accepted evidence that wasn’t relevant for the case”, et cetera.
If we go over to page 3, please. There were some director’s questions. If we see what Lord Neuberger is reported as saying, question 3 relates to the prospects of success. It’s recorded that Lord Neuberger said:
“Lord Neuberger reported that he did not yet know Lord Grabiner’s view of the case; he thought we had a strong case but was slightly diffident because he had not yet seen all of the evidence from the other side.”
This record of Lord Neuberger saying that he did not yet know your view of the case doesn’t seem very consistent with the email traffic that we had looked at earlier when you’d been exchanging views. Would you agree?
Lord Anthony Grabiner KC: I don’t think I can comment, really. I mean, it’s his – this is for him, not me.
Mr Beer: Would you agree that he had known your view of the case by this point?
Lord Anthony Grabiner KC: I simply can’t recall precisely. This is on –
Mr Beer: This is on Monday, the 18th. You’d been exchanging emails over the weekend of the 16th and 17th, in which you informed him of your views of the case.
Lord Anthony Grabiner KC: Yeah.
Mr Beer: You’d told him on the afternoon of the 18th what advice you’d given to the solicitors in consultation that afternoon and your views as to the prospects of success.
Lord Anthony Grabiner KC: Well, I’m not sure I can help further on the point. I mean, it may be that you’re right, I mean, the documents will speak for themselves. I do know that he then emailed to me about an hour later. I mean, I don’t find this Board minute particularly helpful, or very clear, actually. But he did email me within an hour, I think, of this Board meeting and this conversation taking place, and I think his position is very fairly and accurately summarised in the email he sent to me, which I know is in the bundle and I’m sure you’re coming to it.
Mr Beer: Yes, we’ll come to it in a second. He’s recorded as being slightly diffident because he’d not seen all of the evidence from the other side. Had you seen all of the evidence from the other side?
Lord Anthony Grabiner KC: No, of course not. I mean, just in a matter of days, I mean, I was working as much as I could to try and get through this stuff.
Mr Beer: Saturdays and Sundays?
Lord Anthony Grabiner KC: It was hard work. A lot had gone on.
Mr Beer: Wouldn’t you want to see that, ie see what the other side of the coin would be before offering strong advice as to the prospects of success and –
Lord Anthony Grabiner KC: When you – I mean, basically all you need to do is to look at the judgment and find out what the issues were in the case that was to be decided and whether or not the judge had gone beyond the matters that were supposed to be decided and whether he had trespassed upon matters which were yet to be dealt with in the other trials. I mean, that doesn’t involve, you know, a massive, massive exercise. Certainly doesn’t involve going through all the materials that were available in the trial. It does involve a focus upon the judgment itself, coupled with the particular complaints that were being made, and that was the help that I was getting from those who had participated in the trial.
Mr Beer: So you didn’t, at this stage, feel in the same way as Lord Neuberger is recorded as feeling, namely slightly diffident?
Lord Anthony Grabiner KC: Well, he – as I think I said a little earlier, he’s a more cautious person than I am; he’s more prudent; he’s more judicial. But I do know that he felt quite clearly that this was a strong case and I think that that is apparent from the correspondence between us, which I’m sure you’re coming to.
Mr Beer: You just said a moment ago that Lord Neuberger updated you after this Board call. If we can turn to that email, please, it’s your tab B2, for us it’s WITN10650106.
Lord Anthony Grabiner KC: I have that.
Mr Beer: It’s the foot of page 1. Just wait for it to come up on the screen. Foot of the page, thank you. So 6.36 on the Monday, Lord Neuberger wrote:
“Tony,
“I spoke to the Board for 55 minutes.
“I told them that I thought they would win on recusal, but couldn’t guarantee it, and that, if we were to run recusal we had to grasp the nettle.
“Their questions were mostly well judged and understandable, but they are very concerned about the risks, which, bearing in mind they are a public body which has just had a very nasty, and I think unfair, shock, is scarcely surprising.
“They thought my note suggested that unfairness was a freestanding point: I don’t think it is really. It is linked to recusal obviously, and it is linked to interpretation only to the extent that findings which were irrelevant to interpretation were ones he should not have made and were therefore unfair. As a freestanding issue, I think that unfairness does not relate to any order the judge is likely to make. It could only be relevant for the purposes of the [Court of Appeal] being prepared formally to scrub the unfair findings of fact or unfair assessment of witnesses, which it has on a rare occasion been prepared to do.
“The only reason not to go ahead is fear of the judge getting more anti- if we lose and fear of bad publicity …
“I think the judge a lost cause and, if he isn’t, he may react better if we stand up to him.
“As to bad publicity, it’s seldom a convincing reason.”
So that’s the feedback you got from Lord Neuberger –
Lord Anthony Grabiner KC: Yes.
Mr Beer: – rather than reading the minutes?
Lord Anthony Grabiner KC: Yes, and you can see that it’s much more forcefully expressed and he’s making it perfectly clear that he’s very unimpressed with the judgment and that he thinks the recusal application is something that we should be pursuing, “I told them that I thought they would win on recusal”.
Mr Beer: The Board decided at the meeting of 18 March that it wanted to hear a range of expert legal opinion and, therefore, it wanted to hear from you directly and I think you then joined a Board meeting on 20 March 2019; is that right?
Lord Anthony Grabiner KC: I think that’s right and I think this must be the one that I attended not physically but on the phone.
Mr Beer: Dialled up, yes. POL00269774. That’s your tab B13. If we just look at the third heading down “Updated Note of Post Office Board Dial-In attended by Lord Grabiner (by phone) of 20 March”. Then if we go to page 2 –
Lord Anthony Grabiner KC: Yes.
Mr Beer: – and scroll down. We’ll see the people attended. You attended the Board meeting by calling in for 25 minutes between 11.45 and 12.10; can you see that?
Lord Anthony Grabiner KC: I can.
Mr Beer: Then if we scroll down, please, at the foot of the page, to “Advice”, you’re recorded as saying that you confirmed your view that:
“Post Office has no option but to seek the recusal of the judge. Lord Grabiner confirmed that, whilst guarantees cannot be provided, Post Office does have a strong case for recusal. [You] confirmed that [your] strong recommendation to the Board was to seek a recusal. The sequencing of the trials, ordered by this judge, compounds the issue …”
Read on:
“… that the Post Office faces as this judge will be looking at the same witnesses and issues in later trials – hence there is no other real option but to seek recusal.”
Does that accurately record the substance of the advice that you were –
Lord Anthony Grabiner KC: Yes, again, I think it does.
Mr Beer: Did you gain any sense that the Board was keen to take this step, applying for recusal of the judge?
Lord Anthony Grabiner KC: I am afraid I didn’t get any sense at all. I mean, no doubt it will have helped if I’d been in the room but I obviously wasn’t. But I had no sense of what they thought or if there was any difference of view within the Board on the subject.
Mr Beer: I think later you were informed that the Post Office had decided to seek the recusal of Mr Justice Fraser.
Lord Anthony Grabiner KC: Yes.
Mr Beer: Can we look, please, at WITN10650108. That’s your tab E20. That’s the supplemental bundle, Lord Grabiner.
Lord Anthony Grabiner KC: Sorry, I’m being slow.
Mr Beer: That’s all right. E20?
Lord Anthony Grabiner KC: Yes, I’ve got it.
Mr Beer: Email at 13.12, from Lord Neuberger to you.
“Thanks for the information re the [Post Office]. I hope that they do not bottle it. Apart from the [public relations] front (where the arguments cut both ways in my view and anyway it’s all short-term pizzazz) the argument for having a go at recusal is very strong.”
Then scrolling up, please, you say:
“We’ve been instructed to proceed. I don’t think the clients had any choice but they were reluctant to take such a serious step.”
Lord Anthony Grabiner KC: Yes.
Mr Beer: Can you recall on what basis you formed the view that the Post Office, ie the clients, were reluctant to take this serious step?
Lord Anthony Grabiner KC: I think that I was given the impression – and I’m afraid I have no recollection of how I derived it – but I was given the impression that, unless they were comfortable with the legal advice, the independent legal advice that they were getting, to the effect that they should apply for recusal, that they wouldn’t be comfortable in taking that step. That was my – that was my sense at the time, I must say.
Mr Beer: So would I be right to characterise the turn of events so far as being that this was essentially a lawyer-led decision?
Lord Anthony Grabiner KC: Well, I just I don’t know because I don’t know what went on in the Board. I mean, they were getting the advice, and they took the advice and they did it. It was their decision ultimately, but I have no idea what the individual views were of people on the Post Office Board.
Mr Beer: Thank you. Just before the break, can we turn to WITN10650109.
Lord Anthony Grabiner KC: And that tab-number?
Mr Beer: B20, and it’s the second page.
Lord Anthony Grabiner KC: Yes.
Mr Beer: This is after the application has been issued. You email Lord Neuberger and say:
“The judge has directed a hearing for next Wednesday week – typically that was a date that he was told not convenient for me but that case has now settled so his rather pathetic attempt to dodge me has failed. That behave does rather confirm our suspicions about his Smith characteristics.”
Is that a cross-reference to Mr Justice Peter Smith?
Lord Anthony Grabiner KC: Indeed.
Mr Beer: Was this becoming personalised?
Lord Anthony Grabiner KC: What do you mean by that?
Mr Beer: No more and no less than the question.
Lord Anthony Grabiner KC: Well, what do you mean by – personalised as between whom and whom?
Mr Beer: You and the judge?
Lord Anthony Grabiner KC: Me and which judge?
Mr Beer: The judge that you were applying to recuse himself?
Lord Anthony Grabiner KC: Absolutely not. My view was that he had made a mess of that case and that was my position, and that was David Neuberger’s view as well.
Mr Beer: Now, you went ahead and made the application for recusal on 3 April 2019. We’ve got a full 397-page transcript of that application. The cross-reference – no need to display it – is POL00112150. I’m not going to display that. It’s there for us to read. We know that the application was dismissed by the judge in his fourth judgment of the 9 April 2019.
Sir, can we take the afternoon break now for ten minutes until 3.40, please?
Sir Wyn Williams: Yes, certainly.
Mr Beer: Thank you.
(3.30 pm)
(A short break)
(3.40 pm)
Mr Beer: Good afternoon, sir, can you see and hear us still?
Sir Wyn Williams: Yes, I can.
Mr Beer: Thank you very much.
Lord Grabiner, I think it’s right that, having reviewed the documents that the Inquiry has sent to you, you’ll recall that I think in email exchanges, you made a number of criticisms of Mr Justice Fraser in relation to his rejection of your application that he should recuse himself?
Lord Anthony Grabiner KC: Yes, before you go on, I just noticed, the document we were looking at just before we broke for the short adjournment and you were suggesting that I’d developed some kind of problem about the judge, you will have noticed in that document which you showed me, page 2, that what I said to Lord Neuberger was “That behaviour does rather confirm our suspicions”.
Mr Beer: About his Smith characteristics?
Lord Anthony Grabiner KC: Yes, it wasn’t just my view; it was Lord Neuberger’s view as well.
Mr Beer: Thank you.
Lord Anthony Grabiner KC: I certainly had not developed any kind of personal animus against him. It was inclusively concerned with the judgment and what had taken place in the trial.
Mr Beer: Can we look at WITN10650110, please, which is D8. If we scroll down, please, at – on 9 April, this is the day that the application was dismissed.
Lord Anthony Grabiner KC: Sorry, what’s the – is it B8?
Mr Beer: No, D, delta.
Lord Anthony Grabiner KC: I’m so sorry.
Mr Beer: That’s all right.
Lord Anthony Grabiner KC: Yes.
Mr Beer: It’s at the foot of the page, so this is the day you received the recusal judgment. You say:
“As predicted [Mr Justice Fraser] rejected the application and refused permission to appeal. He’s also directed that the balance of the fact evidence in Horizon trial should immediately proceed.
“He’s a produced a 302-paragraph judgment which at first glance just confirms our concern that he’s not fit to do the job.”
Are you sure you hadn’t personalised it a bit?
Lord Anthony Grabiner KC: It was my view and Lord Neuberger’s view. That’s why I said “our view”, and also Lord Neuberger’s response immediately above it sounds like par for the course. What does that mean, apart from the fact that he and I are agreed about this? It’s not a personal matter; it’s a view about the calibre or quality of the judgment.
Mr Beer: It’s not the judgment; it’s the quality of the judge, isn’t it?
Lord Anthony Grabiner KC: No, I –
Mr Beer: It’s broadening it out from the quality of the judgment as a legal instrument –
Lord Anthony Grabiner KC: I –
Mr Beer: – to whether the man can actually do the job.
Lord Anthony Grabiner KC: I don’t accept that. My criticisms are about the quality of the judgment and the subject matter of the application for recusal.
Mr Beer: I think it’s right that you know that a number of documents have been identified in which suggestions were exchanged that there was an inappropriate relationship between Mr Justice Fraser and Lord Justice Coulson and inappropriate communication between the pair of them, yes?
Lord Anthony Grabiner KC: Yes, I was asked to look at that by the solicitors, actually.
Mr Beer: But it’s not addressed in your witness statement, so I’m going to –
Lord Anthony Grabiner KC: Well, I didn’t think it was relevant. If you think it’s relevant, no doubt you’ll ask me about it.
Mr Beer: I’m just going to look at some of the documents. Can we start, please, with POL00270741. That’s E8, Lord Grabiner. POL00270741 at the foot of the page.
Lord Anthony Grabiner KC: Yes, I’ve got that.
Mr Beer: It’s not an email exchange including you yet but I just want to see how the point develops. It’s 12 April, an initial order from the Court of Appeal is attached. If we go over the page, Mr Parsons says:
“One curious point is the order was made by Lord Justice Coulson, former head of the [Technology and Construction Court] and Fraser [Mr Justice Fraser] is of course the head of the [Technology and Construction Court]. Given Fraser’s comments at the handing down of the recusal judgment that he had warned the [Court of Appeal] that an appeal would be coming it makes us question whether he lined up/had spoken to [Lord Justice Coulson – Coulson, as he’s called here] in advance.”
Then, if we go back –
Lord Anthony Grabiner KC: No, but you’ve missed the key sentence, which is the next one:
“I have asked LGQC to think about this.”
Mr Beer: Yes, and I –
Lord Anthony Grabiner KC: Maybe you did it on purpose, I don’t know.
Mr Beer: No, I was about to come to what you said.
Lord Anthony Grabiner KC: Yes, but I did it, whatever I have said we’ll come to, but I did it because I was asked by the solicitor to do so.
Mr Beer: That’s the sequence of events. It was spotted by the solicitor first.
Lord Anthony Grabiner KC: Well, spotted or otherwise, I was asked by him to think about it, as he says in his email. That was the first time that this issue arose.
Mr Beer: Can we look, please, at WITN10650117. That’s tab E21 for you, if we go to, I think, page 5 of this document, and if we scroll down.
Lord Anthony Grabiner KC: Sorry, page?
Mr Beer: Page 5.
Lord Anthony Grabiner KC: Ah, yes.
Mr Beer: E21, page 5?
Lord Anthony Grabiner KC: Yes, I’ve got that.
Mr Beer: We see David Cavender saying:
“Yes!
“It looks very much like this is what Mr Justice Fraser set up in advance – with his mate the former head of the TCC – unless you believe in coincidences. This is very bad news.”
Then a reply from Gideon Cohen:
“The chance of us not getting permission just went from negligible to rather high.”
Then if we go to page 3, please, we’ll see an email, this is you on 12 April at 5.50. You say:
“I’ve been following the emails and have discussed them with David Neuberger.”
Then if we scroll down, please:
“4. We share the [views] expressed in the flurry of emails. It looks as if Mr Justice Fraser has been speaking either to the listing office or even to Lord Justice Coulson. Otherwise it would be a remarkable coincidence that of all the Lord Justices [of Appeal] presented with the papers they ended up by chance in front of the former TCC judge although this is not a TCC case. I’ve asked Owain to dig out the references from the transcripts of the recusal arguments and the judgment day because my recollection is that Mr Justice Fraser said on both occasions that the [Court of Appeal] was expecting an appeal application.”
Then if we go, please, to what Lord Neuberger said on page 1. There’s an email to you that sets out a proposed email to your solicitor and he says he didn’t want to send it to you without running it past you first. Then if we scroll down, please, he says:
“As to Tony’s point 4 [can you see that?], I think there is a danger and that our justified belief, and consequent sense of grievance, that the judge has gone badly wrong may have made us oversuspicious of some sort of inappropriate collusion between the judge and the [Court of Appeal]. It would be perfectly proper, indeed sensible, for the judge to have warned the [Court of Appeal] of a possible forthcoming application which someone should look at urgently, although I cannot of course rule out the possibility that more was said (but even if it was, that is not by any means necessarily sinister). Lord Justice Coulson is the LJ responsible for civil procedure, so it is not entirely surprising that the application ended up before him. The fact that he made an instant decision with regard to a stay is also unsurprising because that was urgent, and the fact that he has asked for the claimant’s response is a pretty good indication that he is considering the application on its merits, as one would expect. My one point of concern is that he has ruled in effect that the common issues and the recusal application are separate: again, at least on the face of it, that is a perfectly rational view, although it is questionable whether he should have expressed a firm view on that without raising it with us (but I have not seen our application, so that may be unfair). At any rate, I think that is a point which we should challenge in the reasonably near future if we are proceeding with the recusal aspect.”
So is it right, Lord Grabiner, that the theory regarding some form of inappropriate relationship or communication between the High Court judge and the Lord Justice of Appeal originated from Mr Parsons’ email that we looked at first?
Lord Anthony Grabiner KC: Absolutely.
Mr Beer: And, in the end, Lord Neuberger essentially poured cold water on it?
Lord Anthony Grabiner KC: Yes, well, I mean, very properly. I mean, you can’t jump to conclusions about such a serious matter unless you know the facts and we don’t know the facts, so it would be entirely inappropriate to reach the conclusion that there had been some inappropriate collusion.
Mr Beer: Thank you. Can we turn to the last topic then, please, by looking at WBON0000169, and it’s your tab E12. Can we start at page 3 –
Lord Anthony Grabiner KC: You’re ahead of me. Sorry. Hold on a second.
Mr Beer: Lord Grabiner would you mind just bringing the file back onto the main table so that the mics can pick you up.
Lord Anthony Grabiner KC: Sure. I apologise.
Mr Beer: That’s all right. So we’re at page 3 of E12.
Lord Anthony Grabiner KC: Yes, I’ve got that.
Mr Beer: If we look at the bottom, please – sorry, the top. In fact, I was right the first time. It’s the bottom, the bottom of page 3:
“Now that the counsel team have had a chance to review yesterday’s judgment [that’s Mr Justice Fraser’s recusal judgment] is there anything in that which changes their view of the prospects of on appeal? I have been specifically asked this by the Board so an early answer would be helpful!”
Then if we scroll up, please, to the foot of page 2 – none of these include you – Mr Parsons’ reply to General Counsel is:
“Counsel’s view on the prospects of success on appeal has not materially changed following the recusal judgment. They continue to believe [that] the appeal has a reasonable prospect of success. If anything, Fraser has said a few things in the judgment that may even help demonstrate apparent bias.”
Was that your view as communicated there by Mr Parsons to the General Counsel?
Lord Anthony Grabiner KC: I think that’s – I suspect that that is accurate, and we had already advised, I think, that we expected that the recusal application would fail and that the best possibility would have been in the Court of Appeal because the judge himself would be unlikely to recuse himself, and so the best prospects of success with a recusal application would be in the Court of Appeal. That was certainly my view and I think there are emails to precisely that effect.
Mr Beer: There are indeed. If we scroll up, please, Ms MacLeod replies to Mr Parsons:
“Hi Andy
“Sorry to be petty – [Lord Grabiner QC] told me when I met him (feels like ages ago) that we had ‘strong grounds’ to bring the application for recusal. When I challenged him on what the prospects of success were, he said (not an exact quote …) he wouldn’t say ‘strong grounds to bring the application’, unless there were strong prospects of success …
“That now seems to be downgraded to ‘reasonable’ … if that is deliberate then I need be able to explain to the Board why.”
Then over the page at page 1, at the foot of the page, Mr Parsons forwards that chain on to you asking:
“… do you have any comment … If you read from the bottom up … this should hopefully make sense.”
Then further up your reply. You say:
“I haven’t downgraded anything. ‘Reasonable’ was not my word.”
Now, of course, it was, in a sense, to start with, wasn’t it, right at the beginning of the –
Lord Anthony Grabiner KC: Well, that was his summary, not my word. That was his summary of what he said I’d said. I wasn’t a party to that correspondence, as you’ve just said.
Mr Beer: No, I mean right at the beginning when you were advising –
Lord Anthony Grabiner KC: Oh, I see.
Mr Beer: – on that Saturday and Sunday, when you were adopting what Lord Neuberger had said.
Lord Anthony Grabiner KC: I think you’re playing with words, with respect.
Mr Beer: You say, “‘Reasonable’ was not my word”, and you’re referring to the use of that word in the chain below, yes?
Lord Anthony Grabiner KC: Precisely. What I was, I think, being accused of – and this is something that you’d be familiar with over the years as a barrister – is being accused by the solicitor that I’d watered down my advice between point 1 in time and point 2 in time. That wasn’t true. My advice, I think, throughout, has been consistent, and I was making that clear in this email.
Mr Beer: You say:
“I believe we have a strong case because the judge decided more than he should have done or was necessary for him in to decide at the Common Issues trial”, et cetera.
Lord Anthony Grabiner KC: Well, perhaps you’d read on. I think it’s quite important, given the line of questioning that you’ve been putting forward.
Mr Beer: “He was asked on many occasions both before and during the trial to take great care not to trespass into the territory of future cases and I believe that he wrongly failed to heed that request. Many of his observations are expressed as firm conclusions rather than cautious preliminary expressions of current thinking and that point was not seriously challenged by the other side in the recusal hearing. If he had case managed the litigation in a more disciplined way all of this could have been avoided.
“His latest recusal judgment is an aggressively strong defence by the judge of his personal position. This is not surprising. He dug himself into it in the first place and now he’s in the business of digging himself out. The collective view of the team – having observed him during the trial – was that this is what he would do and his refusal to recuse himself coupled with his refusal to give leave to appeal against that judgment was predicted by the team. As previously explained I also believe that in all the circumstances Post Office has no real alternative but to pursue appeals to the Court of Appeal against both the recusal and Common Issues judgments.
“All that said, and as previously advised, I cannot give a guarantee of success in the Court of Appeal. There are always risks associated with litigation. I think Lord Neuberger’s view on prospects should also be sought by the clients.”
Lord Anthony Grabiner KC: Thanks very much.
Mr Beer: Was it your view that the issues of recusal and substantive appeal against the Common Issues judgment should be the subject matter of the same application?
Lord Anthony Grabiner KC: Yes, I think so. Because it seemed to me impossible to distinguish between the two. There were – I mean, I wasn’t primarily concerned with the merits or otherwise of the judgment itself, in terms of the legal analysis but what I had seen of it seemed to me to give rise and – and I know this is Lord Neuberger’s view as well – that there were points decided in that case that were the most senior courts in the land to be studying and looking at the issues, for example, in relation to relational contracts, and whether or not a good-faith obligation was to be implied into the contract in relation to the termination provisions.
I mean, these are serious and very complicated issues of law that needed to be properly investigated and ruled upon by a senior court, in my view. But that was a separate issue from the recusal application, but it did seem to me that the points were very interrelated and that, realistically, it was appropriate that the two matters, if they were to be dealt with in the Court of Appeal, should be dealt with together.
Mr Beer: They should be run in tandem?
Lord Anthony Grabiner KC: Absolutely.
Mr Beer: I think the Post Office took a different decision?
Lord Anthony Grabiner KC: I don’t know.
Mr Beer: Well, I think the – have you read the emails – I wouldn’t blame you if you’ve forgotten it – if they decided on Herbert Smith’s advice to run the appeals separately?
Lord Anthony Grabiner KC: That may be. I mean, I’ve got no memory of any of that. I don’t think I was involved in that. There may be the odd email when I was being told about it but I wasn’t asked to advise about that point, I don’t think.
Mr Beer: Can we look, please, lastly, at tab E23, therefore, which is WITN10650137.
Lord Anthony Grabiner KC: 24, did you say?
Mr Beer: 23.
Lord Anthony Grabiner KC: Yes.
Mr Beer: To put this in context, if we look at page 2, this is an email, we see from the foot of page 1, from Saturday, 11 May, not to you in the first instance, and it says:
“As you will know by now, we received the Court of Appeal’s judgment in relation to Post Office’s recusal application earlier today.
“The Post Office has not been successful in appealing the trial judge’s decision not to recuse himself”, et cetera.
Then, if we go up, that’s forwarded on, we see from the bottom of page 1, to you and to Lord Neuberger. Then, if we scroll to the top of the page, we see an email exchange between you and Lord Neuberger.
Lord Anthony Grabiner KC: Well, I think it’s from Lord Neuberger to me, isn’t it?
Mr Beer: Yes. He says:
“1. It is simply wrong to refuse [permission to appeal]: as I always have said, once a Lord Justice feels that (s)he has to give detailed reasons, (s)he should realise that there is an arguable case (the test); quite apart from this, [David Cavender’s] email rightly identifies a number of errors …”
It’s 3 that I’m interested in –
Lord Anthony Grabiner KC: I think you should read the lot, actually.
Mr Beer: I’m very grateful for your suggestions, and I will do exactly as you require:
“Particularly as a former member of the judiciary, I hate seeing judges, especially senior judges, making a mess of things, and all the more so when it can lead to the unfortunately understandable view (which I do not share) of some sort of intra-judicial conspiracy.”
Paragraph 3, which is the one I was interested in:
“The client misguidedly refused to follow our advice about running the two appeals together, which gives us an ‘out’ in terms of our advice appearing wrong, but more importantly it has helped to produce this unfair result …”
Firstly, were you party to the advice that the two appeals should be run together?
Lord Anthony Grabiner KC: I must say, I’ve no memory of that at all.
Mr Beer: No. Did you think that the client’s failure to follow your advice gave you an out?
Lord Anthony Grabiner KC: No, I didn’t, and this is not something that has even crossed my mind.
Mr Beer: Did you discuss things at all with Lord Neuberger after the event, after perhaps recriminations started to begin as to whether or not you needed an out to explain away the advice that you’d previously given?
Lord Anthony Grabiner KC: I have never ever considered that I needed an out in this case.
Mr Beer: No. Did you respond to his suggestion that –
Lord Anthony Grabiner KC: No, I didn’t.
Mr Beer: – the client rejecting the advice on running the two appeals together did give you an out?
Lord Anthony Grabiner KC: Absolutely not.
Mr Beer: Lord Grabiner, thank you very much. They’re the only questions that I ask.
The Witness: I’m tempted to say thank you.
Mr Beer: I don’t think there are any questions from other Core Participants.
Sir, those are the questions that I ask on behalf of the Inquiry. Do you have any questions of Lord Grabiner?
Sir Wyn Williams: No, I don’t. Thank you very much.
My only words, Lord Grabiner, are to thank you for making the witness statement and for appearing before the Inquiry to assist me to get to the bottom of various issues, one of which you’ve been dealing with.
The Witness: Thank you very much, sir.
Mr Beer: Thank you, sir.
Sir Wyn Williams: So we’ll resume again at 9.45 tomorrow?
Mr Beer: 9.45 tomorrow, yes, sir.
Sir Wyn Williams: Fine. Thank you.
Mr Beer: Thank you.
(4.04 pm)
(The hearing adjourned until 9.45 am the following day)