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Claim Nos. HQ16X01238, HQ17X02637 & HQ17X04248
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
The Post Office Group Litigation
MR JUSTICE FRASER
BETWEEN:
ALAN BATES & OTHERS
Claimants
—and—
POST OFFICE LIMITED
Defendant
NOTE ON POTENTIAL APPEAL OF HORIZON JUDGMENT
1. Itisnot known when the Court will hand down judgment in the Horizon Issues Trial (“HIT”).
The oral hearing finished in early July 2019 but submissions on discrete points were not
completed until the end of July.
2. The judgment could appear at any time and it is a matter of speculation trying to work out
when it might do so. The work involved in preparing the judgment is substantial and the
Judge is likely to have taken off a significant amount of August (and perhaps September) as
holiday. That said, given the delays in the HIT resulting from the recusal application, the
Judge may have made some progress on parts of the judgment even before the end of the
trial and it is equally possible that he made considerable progress before the end of July — or
even during August. It is equally possible that he has so far made little or no progress — and
the fact that judgment in the CIT was delivered much later than originally anticipated (and
just before the beginning of the HIT) perhaps indicates a tendency on the Judge’s part to take
more rather than less time. Also, the fact that the scope of trial 3 has been reduced has
perhaps eased some of the pressure on the Judge to deliver a quick judgment.
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My best guess (for what little it is worth) is that judgment is not likely to appear much before
the end of September and that it is more likely to be delivered in the course of October.
Post Office will obviously need to give urgent consideration to the terms of any judgment
once it is delivered and in particular, if any findings adverse to Post Office are made in the
judgment, whether any application to appeal is to be made.
The timetable for the making of any such application is tight: the starting point is that an
appellant has 21 days from the date of the decision to file an appellant’s notice (CPR
52.12(2)(b)), although the lower court may direct that such period be longer or shorter (CPR
52.12(2)(a)).
The White Book notes (52.12.3) that the brevity of the 21-day period “reflects a clear policy
decision in favour of finality” and that “/i/n the immediate afiermath of the judgment below
both the party and their advisers are fully seized of the case and are at that time best
equipped to formulate grounds of appeal”. Although some examples are provided of
situations where an extension of time has been (or might be) granted, it cannot be assumed
that any such application will succeed.
Further, the 21-day period is not the period for making a decision as to whether or not to
appeal but the time allowed to file the appellant’s notice itself. That exercise will be complex
and will require extensive review and sign-off. It could easily take 21 days in itself.
Accordingly, Post Office will need to arrive at a quick decision as to whether it wants to seek
permission to appeal.
The purpose of this Note is to flag some initial points which may need to be considered once
the judgment is delivered in due course. This is necessarily speculative since all will
inevitably depend on the terms of the judgment itself.
I note at the outset that an appeal of the Horizon Issues is a very different creature from an
appeal of the Common Issues. The Horizon Issues are primarily issues of fact and the
Common Issues being appealed are primarily questions of law. As I explain below, it is
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always more difficult to get permission to appeal fact. Any appeal of the Horizon Issues
therefore requires separate and distinct consideration based on their own circumstances.
The Legal Tests for Permission to Appeal
11. The test for granting permission to appeal (for first appeals) is set out in CPR 52.6:
(1) Except where rule 52.7 applies, permission to appeal may be given only
where
(a) the court considers that the appeal would have a real prospect of
success; or
(b) there is some other compelling reason for the appeal to be heard.
(2) An order giving permission under this rule or under rule 52.7 may
(a) limit the issues to be heard; and
(b) be made subject to conditions.
(Rule 3.1(3) also provides that the court may make an order subject to
conditions.)
(Rule 25.15 provides for the court to order security for costs of an appeal.)
12. In the vast majority of cases, the focus is on 52.6(1)(a) i.e. whether the appeal has a real
prospect of success. It is difficult to envisage circumstances in this case where the Court of
Appeal could be persuaded that there was some other compelling reason for the appeal to be
heard.
13. The test is easy to articulate — it is whether there is a realistic, rather than fanciful, prospect
of success — see Swain v Hillman [2001] 1 All ER 91 and Tanfern Ltd vy Cameron-McDonald
Practice Note) [2000] 1 WLR 1311.
14. Meeting the real prospect of success test on an appeal on fact will be difficult since the appeal
court will need to be satisfied that the findings were either unsupported by the evidence
before the judge or that the decision was one that no reasonable judge could have reached
(The Mayor and Burgesses of the Haringey LBC v Ahmed & Ahmed [2017] EWCA Civ
1861).
1S.
16.
20.
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The Court of Appeal (or the court at first instance) can also grant limited permission or
conditional permission.
The Court of Appeal has made it clear that appeals on questions of fact from the TCC will
only be heard very exceptionally. The position is summarised in the White Book at 52.3.13.
Although the HIT was technically not a TCC case (since it took placed in the QBD), to all
intents and purposes it is a TCC case: the Judge is head of the TCC; the issues in the HIT
are typical of TCC disputes; and the Court of Appeal Judge who appears to be taking the
lead in determining questions of permission to appeal, Coulson LJ, was himself a TCC Judge
until his elevation to the Court of Appeal (so that the Court of Appeal is likely to be treating
this as a TCC case).
It is worth considering the TCC-line of cases referred to in a little more detail.
In Skanska Construction UK Ltd v Egger (Barony) Ltd [2002] EWCA Civ 1914, permission
was given to appeal (and cross-appeal) arising out of some relatively small areas of the first-
instance judgment, relating to additional costs of installing a second fire-fighting main and
the costs of installation of some process and structural steelwork.
Collins J said this at paras 7-8:
“the decisions of the Technology and Construction Court have special
characteristics which affect the readiness of the Court of Appeal to reconsider
them on appeal. First, the findings of fact often fall within an area of specialist
expertise, where the evidence is of a technical nature and given by experienced
experts, and which is evidence of a kind which judges of the Technology and
Construction Court are particularly well placed to assess. Second, the
conclusions of fact will frequently involve an assessment or evaluation of a
number of different factors which have to be weighed against each other, which
is often a matter of degree. Third, the decisions may deal with factual minutiae
not easily susceptible of reconsideration on appeal. Fourth, the judgments will
frequently be written on the basis of assumed knowledge of the detail by the
parties and their advisers, and will not address a wider audience, with the
consequence that the underlying reasoning may not always be readily apparent
or fully articulated.
21.
22.
8.. Consequently the recent pronouncements of this Court on appeals against
findings of fact apply with particular force to the decisions of the Technology
and Construction Court. In particular this Court will be reluctant to interfere
with a trial judge, not only on findings of primary fact based on the credibility
or reliability of witnesses, but also where conclusions of fact involve an
assessment of a number of different factors which have to be weighed against
each other and involve an evaluation of the facts.” (emphasis added)
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In Yorkshire Water Services Ltd v Taylor Woodrow Construction Northern Ltd [2005]
EWCA Civ 894; [2005] BLR 395 the Court of Appeal explored the background to this
LJ at para 27:
“\..The policy has been somewhat relaxed, and findings of fact such as Lord
Bingham described on page 35 in Virgin Management are not no-go areas’. The
burden on a prospective appellant in these areas is nevertheless hard to
discharge. In my view, the more complicated and technical the facts, the harder
generally speaking is the burden. The reason again is obvious. The more
complicated and technical the facts, the longer and more expensive would be
this court's enquiry, whether by review or re-hearing, and the more
disproportionate would be the whole exercise for the parties and the court alike.
Importantly, this court would have the disadvantage of not having heard any of
the witnesses, including the experts, give oral evidence. I venture to think that,
at the extreme, some questions of fact may be so complicated and technical that
they should only be investigated in detail judicially once, provided that the
resulting decision is not palpably incompetent. That would not only apply to
decisions of TCC judges. The facts in the present case are quite close to any
extreme. So far from being palpably incompetent, Forbes J's factual decisions
are, so far as I have been able to judge, of the highest quality. In so far as I have
reached this conclusion upon no more than 5 days reading and one day of oral
argument, care must be taken, as Lord Bingham said, to prevent applications
for leave blossoming into dress rehearsals for a full appeal.”
principle in a little more detail and referred with approval to the Skanska decision. Per May
The Court of Appeal is therefore quite clear that there are issues of policy as well as
practicality at play here. May LJ went on to give the following illustration at para 30:
The technical complexity of the present case is well beyond the practical judicial
experience of most judges. To talk in this appeal about primary facts and
1 Lord Bingham was referring to the fact that the test for permission will be more easily discharged if he is seeking
to challenge a secondary inference drawn from the facts: on that important point, see below
5
23.
inferences, the credibility of oral evidence and other matters normally relevant
to an appeal against relatively uncomplicated findings of fact has something of
an air of unreality about it. The well-known principles are of course relevant
and to be applied. But no appellate court would solemnly set about deciding in
this case which of the judge's findings were findings of primary fact and which
inferences. A broader approach would of necessity be needed. Most of the
evidence was technical and complex. Most of the witnesses, including those
giving factual evidence, were experts. Credibility was scarcely in issue in
judging who was telling the truth. But credibility was centrally in issue in the
sense of judging which strands of evidence, opinion and argument were
persuasive. It was here that the judge had the unique advantage both of hearing
the evidence, opinion and argument expressed, and of being able, through
becoming steeped in the subject, to put together in 557 paragraphs of dense
technical prose the interlocking pieces of a highly complicated jigsaw.
Understanding the jargon is an effort in itself.
104. The shape of many of these proposed grounds of appeal is to summarise
what the judge found, and then say that he was wrong because he failed to take
account of material circumstances (which are set out) or because he drew
incorrect inferences. Generally speaking, the grounds seek to reargue in this
court matters which were advanced and unsuccessfully argued before the judge,
and which, upon mature consideration and for convincingly explained reasons,
he rejected. The repeated proposition that the judge failed to take material
circumstances into account is, again speaking generally, untenable. A startling
example of this is in Ground 15 (microthrix parvicella) where the judge is said
to have failed to take into account 9 material circumstances set out in
paragraphs 15.7, 7 of which are expressed in the Grounds themselves as “the
fact (as he himself found) ...” (my emphasis). The very grounds themselves show
that the judge did take these matters into account.
105. As to allegedly mistaken inferences, this comes nowhere near a case in
which this court might consider re-examining inferences on the basis that an
inference is a deduction from primary facts and intrinsically more amenable to
appeal. In the present case, inferences were so interlocked in the jigsaw of
technical fact and opinion as to be inseparable from them. As to the facts and
opinions themselves, they were supported by evidence or opinion to which the
judge referred and which he was entitled to prefer to other evidence or opinion
which he rejected. There are even some instances where, as Mr Streatfeild-
James or Mr Elliott submitted, the proposed appeal now seeks to challenge
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It is also instructive to consider how the Court of Appeal approached the proposed grounds
of appeal of facts. 12 factual grounds of appeal are listed in para 103. May LJ said this at
paras 104-105:
24.
25.
26.
findings which were based on evidence which was not challenged before the
judge.
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These principles were recently restated by Coulson LJ in Wheeldon Brothers Waste Ltd v
Millennium Insurance Company Ltd [2019] 4 WLR 56. He said at para 4:
For the reasons set out below, I do not consider that different rules apply to
applications for permission to appeal from the TCC, as compared with any other
part of the High Court. On the other hand, because TCC cases often involve
complex and interlinked findings of fact and assessments of expert evidence, it
is inevitable that wide ranging applications for permission to appeal against
such findings and assessments will rarely be successful.
Coulson LJ goes on to explain why that is the case but also flags that while the applicable
test on an application for permission to appeal from the TCC is that set out in CPR 52.6(1),
“from a practical perspective, that is not quite the whole story” [para 6].
The general approach is set out by Coulson LJ in para 7:
The general approach of an appellate court to appeals on questions of fact was
memorably summarised by Lewison LJ in Fage UK Lid v Chobani_UK Ltd
[2014] EWCA Civ 5; [2014] ETMR 26. In para 114, he said:
“Appellate courts have been repeatedly warned, by recent cases at the
highest level, not to interfere with findings of fact by trial judges, unless
compelled to do so. This applies not only to findings of primary fact, but
also to the evaluation of those facts and to inferences to be drawn from
them. The best known of these cases are: Biogen Inc v Medeva ple [1977]
RPC1, Piglowska v Piglowski [1999] 1 WLR 1360, Datec Electronics
Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325, Inre B
(A Child) (Care Proceedings: Threshold Criteria [2013] 1 WLR 1911 and
most recently and comprehensively McGraddie v McGraddie [2013] 1
WLR 2477. These are all decisions either of the House of Lords or of the
Supreme Court. The reasons for this approach are many. They include:
“(i) The expertise of a trial judge is in determining what facts are
relevant to the legal issues to be decided, and what those facts are
if they are disputed.
“(ii) The trial is not a dress rehearsal. It is the first and last night
of the show.
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“(iii) Duplication of the trial judge's role on appeal is a
disproportionate use of the limited resources of an appellate court,
and will seldom lead to a different outcome in an individual case.
“(iv) In making his decisions the trial judge will have regard to the
whole of the sea of evidence presented to him, whereas an
appellate court will only be island hopping.
“(v) The atmosphere of the courtroom cannot, in any event, be
recreated by reference to documents (including transcripts of
evidence).
“(vi) Thus even if it were possible to duplicate the role of the trial
judge, it cannot in practice be done.”
8. Shortly thereafter, in Henderson v Foxworth Investments Ltd [2014] UKSC
41; [2014] 1 WLR 2600, Lord Reed JSC said, at para 67:
“Tt follows that, in the absence of some other identifiable error, such as
(without attempting an exhaustive account) a material error of law, or the
making of a critical finding of fact which has no basis in the evidence, or
a demonstrable misunderstanding of relevant evidence, or a demonstrable
failure to consider relevant evidence, an appellate court will interfere with
the findings of fact made by a trial judge only if it is satisfied that his
decision cannot reasonably be explained or justified.”
27. Coulson LJ’s summary is at para 10:
In short, to be overturned on appeal, a finding of fact must be one that no
reasonable judge could have reached. In practice, that will usually occur only
where there was no evidence at all to support the finding that was made, or the
judge plainly misunderstood the evidence in order to arrive at the disputed
finding.
28. Onexpert evidence, Coulson LJ says this @ para 11:
A first instance judge's assessment of, or evaluations based upon, expert
evidence adduced at trial must be approached by an appellate court with similar
caution. Whilst it has been said that a reconsideration of an expert's opinion
may be slightly easier than a finding of fact, because the underlying report will
be in writing (see Thomson v Christie Manson & Woods Ltd [2005] EWCA Civ
555; [2005] PNLR 38), the same case also provides a salutary warning that,
since the evaluation of expert evidence is likely to be bound up with a wider
evaluation of matters of fact, an appellate court will still be very slow to
intervene. At para 141 of his judgement in Thomson's case, May LJ said:
29.
30.
31,
“But, even accepting that individual points such as these are amenable to
judicial appellate evaluation whatever the expert opinion, no appellate
court should cherry pick a few such points so as to disagree with a
composite first instance decision which, in the nature of a jig-saw,
depended on the interlocking of a very large number of individual pieces,
each the subject of oral expert evidence which the appellate court has not
heard.”
Bingham MR) said, and concluded that they remained good law.
Coulson LJ’s summary of the principles appears at para 17:
In those circumstances, I consider that the applicable principles can be
summarised as follows:
(i) The CPR provides a single test for applications for permission to
appeal which covers the entirety of the High Court, including the TCC
(Virgin Group Ltd ).
(ii) Any application for permission to appeal on matters of fact or
evaluations of expert evidence must surmount the high hurdle identified
in Fage UK Ltd case, Henderson's case, Thomson's case and the Grizzly
Business Ltd case.
(iii) In addition, because a judgment in the TCC is likely to involve (i)
detailed findings of fact in an area of specialist expertise (Virgin
Group and Skanska) and/or (ii) lengthy and interlocking assessments of
both factual and expert evidence (the Skanska Construction UK Ltd case
and Thomson's case) and/or (iii) factual minutiae which is difficult or
impossible sensibly to reconsider on appeal (the Skanska Construction
UK Lid case), the Court of Appeal will be reluctant to unpick such a
judgment (Ihomson's case), with the inevitable result that obtaining
permission to appeal on such matters in a TCC case may be harder than
in other, non-specialist types of case (the Virgin Group Ltd, Skanska
Construction UK Ltd and Yorkshire Water Services Ltd cases).
wide audience. Para 72:
I have considered a number of applications for permission to appeal in TCC
cases over the last six months. Complaints about factual findings and expert
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In relation to TCC cases, Coulson LJ goes on to consider the Skanska and Yorkshire Water
cases (and Virgin Group Ltd v De Morgan Group ple (1994) 68 BLR 26 per Sir Thomas
Coulson LJ makes it very clear that he is issuing this judgment in the hope that it reaches a
32.
33.
34.
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evaluation, of the kinds unsuccessfully raised in the present case by Millennium,
are surprisingly commonplace. It has therefore been convenient to use this
judgment to re-state the relevant principles that are and will continue to be
applied by the Court of Appeal to appeals on such matters from the TCC, and
for that purpose only, I direct that this judgment can be referred to in other
cases. I hope it provides at least some guidance to the parties in TCC litigation,
and to the judges who sit doing that work around the country, and who are the
first port of call for any application for permission to appeal.
One further point for completeness: the Court of Appeal’s approach to reviewing the
approach taken by the court below to the assessment of evidence and witness credibility.
Judges should give adequate reasons for their decisions and where there is a conflict of
evidence (whether of fact or expert opinion) they should explain why they preferred one
witness over another (White Book 52.21.2 and 52.21.7 and the cases referred to there). Note
that if the criticism of the judge is that he failed to give sufficient reasons, the approved
procedure is that in the first instance the judge should be invited to elaborate his reasoning.
A tule set out in Brown v Dunn (1894) 6 R. 67 remains important: namely that where a party
contends that the evidence of their opponent’s witness should be disbelieved on particular
matters, the witness should be cross-examined on them. The rule is principally directed at
advocates but it can also have application to a judge e.g. disbelieving a witness who was not
challenged on a point.
The law was summarised by the Privy Council in Chen v Ng (British Virgin Islands) [2017]
UKPC 27. Lords Neuberger and Mance said this at paras 49-50:
... Recent guidance has been given by the UK Supreme Court in McGraddie v
McGraddie [2013] 1 WLR 2477 and Henderson v Foxworth Investments Ltd
[2014] 1 WLR 2600 and by the Board itself in Central Bank of Ecuador v
Conticorp SA [2015] UKPC 11 as to the proper approach of an appellate court
when deciding whether to interfere with a judge's conclusion on a disputed issue
of fact on which the judge has heard oral evidence. In McGraddie the Supreme
Court and in Central Bank of Ecuador the Board set out a well-known passage
from Lord Thankerton's speech in Thomas v Thomas [1947] AC 484 , 487-488,
which encapsulates the principles relevant on this appeal. It is to this effect:
"(1) Where a question of fact has been tried by a judge without a jury, and
there is no question of misdirection of himself by the judge, an appellate
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court which is disposed to come to a different conclusion on the printed
evidence, should not do so unless it is satisfied that any advantage enjoyed
by the trial judge by reason of having seen and heard the witnesses, could
not be sufficient to explain or justify the trial judge's conclusion; (2) The
appellate court may take the view that, without having seen or heard the
witnesses, it is not in a position to come to any satisfactory conclusion on
the printed evidence; (3) The appellate court, either because the reasons
given by the trial judge are not satisfactory, or because it unmistakably so
appears from the evidence, may be satisfied that he has not taken proper
advantage of his having seen and heard the witnesses, and the matter will
then become at large for the appellate court."
50. In Henderson at paras 62 and 66, the Supreme Court said, in shorthand, that
an appellate court should only interfere with a judge's conclusion of fact if it
was one which "no reasonable judge could have reached" or the judge's decision
"cannot be reasonably explained or justified". In Central Bank of Ecuador , the
Board, after reciting once again Lord Thankerton's famous passage (above) and
examining other considerations bearing on the matter, pointed out that these
principles do not mean that an appellate court should never intervene, that they
“assume that the judge has taken proper advantage of having heard and seen
the witnesses, and has in that connection tested their evidence by reference to a
correct understanding of the issues against the background of the material
available and the inherent probabilities" (para 8). In the present case, the Judge
made findings of primary fact about Mr Ng's credibility and case, based on
reading his lengthy written material and seeing him in the witness box for one
and a half days in the context of the material before him as a whole. Ultimately,
however he expressed only two reasons for rejecting Mr Ng's evidence, so that
it is on them that the appeal in this area must focus. It is not suggested that the
Judge's two grounds for rejecting Mr Ng's evidence were unreasonable or
unjustified, and rightly so: his grounds were plainly reasonable in themselves.
However, the attack on the Judge's finding in this case is not based on the merits
of his grounds for disbelieving Mr Ng: it is founded on an alleged procedural
flaw in relation to each of those grounds.
51. Mr Parker's argument is, as it was before the Court of Appeal, that if the two
grounds cited by the Judge were to be relied on as reasons for disbelieving Mr
Ng, they ought to have been put to Mr Ng in cross-examination. As neither
ground was raised with him, runs the argument, it was unfair for the Judge to
have relied on either of them as reasons for disbelieving Mr Ng; accordingly, it
would be wrong to let the decision of the Judge stand. The Court of Appeal
accepted this argument, and, albeit with some hesitation, the Board considers
that they were right to do so.
52. Ina perfect world, any ground for doubting the evidence of a witness ought
to be put to him, and a judge should only rely on a ground for disbelieving a
witness which that witness has had an opportunity of explaining. However, the
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world is not perfect, and, while both points remain ideals which should always
be in the minds of cross-examiners and trial judges, they cannot be absolute
requirements in every case. Even in a very full trial, it may often be
disproportionate and unrealistic to expect a cross-examiner to put every
possible reason for disbelieving a witness to that witness, especially in a
complex case, and it may be particularly difficult to do so in a case such as this,
where the Judge sensibly rationed the time for cross-examination and the
witness concerned needed an interpreter. Once it is accepted that not every point
may be put, it is inevitable that there will be cases where a point which strikes
the judge as a significant reason for disbelieving some evidence when he comes
to give judgment, has not been put to the witness who gave it.
35. They went on to say this at paras 55-56:
55. At a relatively high level of generality, in such a case an appellate court
should have in mind two conflicting principles: the need for finality and
minimising costs in litigation, on the one hand, and the even more important
requirement of a fair trial, on the other. Specific factors to be taken into account
would include the importance of the relevant issue both absolutely and in the
context of the case; the closeness of the grounds to the points which were put to
the witness; the reasonableness of the grounds not having been put, including
the amount of time available for cross-examination and the amount of material
to be put to the witness; whether the ground had been raised or touched on in
speeches to the court, witness statements or other relevant places; and, in some
cases, the plausibility of the notion that the witness might have satisfactorily
answered the grounds.
56. It is also worth an appellate court having in mind in this context what was
said by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, 1372:
"If I may quote what I said in Biogen Inc v Medeva Ple [1997] RPC 1,
45:
"..[S]pecific findings of fact, even by the most meticulous judge, are
inherently an incomplete statement of the impression which was made
upon him by the primary evidence. His expressed findings are always
surrounded by a penumbra of imprecision as to emphasis, relative weight,
minor qualification and nuance ... of which time and language do not
permit exact expression, but which may play an important part in the
judge's overall evaluation."
.. The exigencies of daily court room life are such that reasons for
judgment will always be capable of having been better expressed."
57. In the instant case, the Board is of the view that it would not be fair to let the
rejection of Mr Ng's evidence stand, given that the two grounds upon which the
Judge reached his decision were not put to Mr Ng...”
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36.
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It will be clear from the extracts quoted above that the position is nuanced. The point to
have in mind for present purposes is that if the Judge makes adverse findings about reliability
of witnesses, it will be worth considering whether the relevant witness was appropriately
cross-examined and whether there is any proper basis for such conclusions (i) expressed in
the Judgment and (ii) on the evidence.
The Court’s Powers on an Appeal
37.
38.
By CPR 52.20 in relation to an appeal the appeal court has all the powers of the lower court
and can, for example, affirm, set aside or vary any order or judgment given below, refer any
claim for determination to the lower court or order a new trial or hearing (52.20(2)).
By CPR 52.21(3) the appeal court will allow an appeal where the decision of the lower court
was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the
proceedings in the lower court.
Wrong
39.
What constitutes “wrong” can be complex: particularly bearing in mind the reluctance to
interfere with the judge’s findings of fact for the reasons outlined above. The reality is that
the burden is a heavy one — the more so in TCC cases. On the application for permission,
the Court of Appeal would have to be satisfied that there was a reasonable prospect that the
Judge was wrong, and that necessarily involves a consideration of the extent to which the
Judge has specialist expertise, has made nuanced judgments, heard evidence first hand etc.
Serious irregularity
40.
As far as serious irregularity is concerned, in broad terms the parties are entitled to a fair
trial, and there are many facets to this.. There are accordingly various different types of
irregularity that can arise — but in each case the appellant will need to show that the
irregularity was serious and that it caused the decision to be unjust in some way.
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41.
42.
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Many of the commonly-cited grounds are things which, if applicable, Post Office would
already be aware of, such as failing to pay attention during trial, or asking excessive or
inappropriate questions. I do not think that any of the Judge's conduct in the Horizon Issues
trial comes close to any such serious irregularity.
As far as bias is concerned, in light of the failed recusal application, I anticipate that, even if
Post Office had such concerns having seen the Horizon Judgment (and there is presently no
specific reason to suppose that that will be the case) there would be zero appetite on Post
Office’s part to make any attempt to repeat any such argument.
Inadequacy of Reasons
43.
44.
45.
There is a duty to give reasons for the decisions given and a failure to do so adequately can
constitute a self-standing right of appeal (Coleman v Dunlop Ltd (No 1) [1997] 11 WLUK
450). Note that a failure to give adequate reason makes the decision unjust — not necessarily
wrong.
The extent of the duty to give reasons depends on the circumstances of the case. See
Flannery v Halifax [2000] 1 WLR 377 per Henry LJ at 382:
The extent of the duty, or rather the reach of what is required to fulfil it, depends
on the subject matter. Where there is a straightforward factual dispute whose
resolution depends simply on which witness is telling the truth about events
which he claims to recall, it is likely to be enough for the judge (having, no
doubt, summarised the evidence) to indicate simply that he believes X rather
than Y; indeed there may be nothing else to say. But where the dispute involves
something in the nature of an intellectual exchange, with reasons and analysis
advanced on either side, the judge must enter into the issues canvassed before
him and explain why he prefers one case over the other. This is likely to apply
particularly in litigation where as here there is disputed expert evidence; but it
is not necessarily limited to such cases.
The duty has been described by the Court of Appeal in English v Emery Reimbold & Strick
Ltd [2002] 1 WLR 2409 by Lord Phillips MR at para 19:
...if the appellate process is to work satisfactorily, the judgment must enable the
appellate court to understand why the judge reached his decision. This does not
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mean that every factor which weighed with the judge in his appraisal of the
evidence has to be identified and explained. But the issues the resolution of
which were vital to the judge's conclusion should be identified and the manner
in which he resolved them explained. It is not possible to provide a template for
this process. It need not involve a lengthy judgment. It does require the judge to
identify and record those matters which were critical to his decision. If the
critical issue was one of fact, in may be enough to say that one witness was
preferred to another because the one manifestly had a clearer recollection of
the material facts or the other gave answers which demonstrated that his
recollection could not be relied upon.
The key issue is whether the party is able to understand why the judge has reached an adverse
decision — so the Court of Appeal is willing to consider those inferences which would have
been evident to the parties.
Application of the law to any appeal of the HIT Judgment
47.
48.
There are obviously important strategic and political considerations to be taken into account
about whether Post Office would want to be seen to be trying to appeal another judgment —
and the sort of points that it would be prepared to pursue in light of, amongst other things,
the failed recusal application. It will also be highly relevant to consider the outcome of the
application for permission to appeal the CIT. If the outcome of that application is known by
the time the HIT judgment is handed down that will obviously have an effect on Post Office’s
thinking: the landscape may be very different if permission is either granted or refused - or
only granted on narrow or stringent terms.
Although these matters are of the utmost importance, I shall do no more in this Note than to
flag them and will proceed on the basis that if the HIT judgment is adverse, Post Office will
want to consider the possibility of seeking permission to appeal.
The Nature of the HIT
49.
It is important to bear in mind certain key characteristics of the HIT:
(1) _ There is very little law involved. Very few authorities were referred to by either party
and those that were, related to peripheral issues (e.g. previous criticism of Mr Coyne,
and the need for experts to apprise the court of changes of view). There are no central
as
50.
Sl.
(2)
(3)
(4)
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legal issues which are likely to require the Judge to consider any authorities in any
detail, still less to reconcile conflicting authorities. It follows that it is very unlikely
that there will be any central finding of law which is susceptible to review by a higher
tribunal. In itself this means that it will be difficult to get permission to appeal.
It follows that the issues are primarily factual ones. The key issue is probably (in
summary): what was the state of the Horizon System from time to time and how likely
was it that Horizon was responsible for financial shortfalls? This involves a detailed
consideration of a vast quantity of evidence, much of it given or referred to by Post
Office’s factual witnesses. As set out above, a first-instance judge is generally
considered to be much better-placed to assess such evidence than an appeal court.
An appeal on law is always easier to mount than an appeal on fact — or an appeal which
necessarily depends on the view taken by the Judge of the facts which were heard at
first-instance. One can readily see that many of the points which Post Office may want
to appeal will fall into these categories;
As explained above, I think this case will be treated as in effect a TCC case — which
makes matters all the more challenging.
It seems highly likely that any conclusions of fact which Post Office might want to appeal
will fit the description in Skanska (for example) precisely i.e. will be findings of fact based
on the credibility or reliability of witnesses and/or will involve an assessment of a number
of different factors which have to be weighed against each other and involve an evaluation
of the facts.
It should also be borne in mind that the Judge is likely to be astute to ensuring that as far as
possible, the Judgment is appeal-proof. He will know that by presenting his findings in a
way which makes it clear that they are based on these sorts of complex assessments (which
in fairness they probably need to be) he will be making it much more difficult for either side
to challenge his judgment.
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52.
53.
34.
55.
56.
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Just by way of example. Imagine the sort of conclusion the Judge could reach on Horizon
Issue 1 i.e. (in summary) to what extent was it possible or likely for bugs to have the potential
to cause apparent or alleged shortfalls or to undermine the reliability of Horizon accurately
to process and record transactions?
The Judge is likely to consider (amongst other things): the evidence of individual claimants
about their experience of Horizon; the evidence of Fujitsu witnesses about the sorts of
bugs/issues they were aware of, investigations they ran and records they (or others at Fujitsu)
kept; the evidence of Post Office witnesses on the records they kept and communications
they made; and the expert evidence from Mr Coyne and Dr Worden on their own
investigations and likelihood of there being significant numbers of undetected bugs causing
discrepancies.
These are mixed questions of analysis of fact and assessment of the reliability of witnesses,
including experts. The Judge is likely to make the point that he is having to arrive at
conclusions which are necessarily based on incomplete evidence and as such his assessment
of the reliability of witnesses is even more important.
Simply by way of example and illustration the Judge might conclude that he could not rely
on the account given by Mr X of Peaks that had been investigated or of the records about the
nature of such Peaks, or that Ms Y’s recollection of the number of times Post Office branches
had been contacted about a known bug was reliable. Instead he would rely on the expert
evidence and the investigations carried out by them. He might conclude that he was satisfied
that Mr Coyne’s searches were thorough and that Dr Worden had not gone into the detail of
such investigations because he considered it pointless to do so in light of his views on the
figures. The Judge did not accept Dr Worden’s conclusion on the figures point and as such
is left with Mr Coyne’s evidence as the only reliable account of the extent of bugs. He then
goes on to draw conclusions which are adverse to Post Office’s interests.
I mention this not because I think such a combination of conclusions is likely or inevitable,
but simply to illustrate how difficult it may be to challenge findings of fact made by the
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58.
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Judge: they are likely to be nuanced assessments of a range of factors, inextricably bound up
with matters which the Court of Appeal sees as matters for the first-instance judge alone — a
position which is considerably stronger for TCC cases.
There is (or may be) a glimmer of hope for the possibility of an appeal of fact namely the
test summarised by Coulson LJ in para 10 of Wheeldon Brothers (quoted above). The test
is whether the finding of fact is one that no reasonable judge could have reached. As Coulson
LJ remarks, in practice, that will usually occur only where there was no evidence at all to
support the finding that was made, or the judge plainly misunderstood the evidence in order
to arrive at the disputed finding. This should be borne in mind when considering the
judgment in the HIT.
Note that a distinction can be drawn between seeking to appeal the judge’s findings of
primary facts and seeking to appeal the inferences he drew from those facts. See for example
Datec Electronics Holding Ltd v UPS Ltd [2007] 1 WLR 1325: the Court of Appeal held in
that case that it was entitled to re-consider for itself the judge’s finding as to what should or
should not be inferred regarding causation (on the facts, concerning the likely cause of the
loss of some parcels) from the primary facts found by the judge (various matters as to when
the parcels had been delivered to warehouses and the like). Lord Mance at para 46:
46. As to the correct approach in an appellate court to findings and inferences
of fact made by a judge at first instance after hearing evidence, there was no
disagreement between counsel. In Assicurazioni_Generali_SpA_v. Arab
Insurance Group [2003] 1 WLR 577, Clarke LJ summarised the position,
referring also to a passage in a judgment of my own:
“14. The approach of the court to any particular case will depend upon
the nature of the issues kind of case [sic] determined by the judge. This
has been recognised recently in, for example, Todd v Adam (trading as
Trelawney Fishing Co) [2002] EWCA Civ 509, Lloyd's Rep 293
and Bessant v South Cone Incorporated [2002] EWCA Civ 763 . In some
cases the trial judge will have reached conclusions of primary fact based
almost entirely upon the view which he formed of the oral evidence of the
witnesses. In most cases, however, the position is more complex. In many
such cases the judge will have reached his conclusions of primary fact as
a result partly of the view he formed of the oral evidence and partly from
an analysis of the documents. In other such cases, the judge will have
made findings of primary fact based entirely or almost entirely on the
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documents. Some findings of primary fact will be the result of direct
evidence, whereas others will depend upon inference from direct evidence
of such facts.
15. In appeals against conclusions of primary fact the approach of an
appellate court will depend upon the weight to be attached to the findings
of the judge and that weight will depend upon the extent to which, as the
trial judge, the judge has an advantage over the appellate court; the
greater that advantage the more reluctant the appellate court should be to
interfere. As I see it, that was the approach of the Court of Appeal on a
‘rehearing’ under the Rules of the Supreme Court and should be its
approach on a ‘review’ under the CPR .
16. Some conclusions of fact are, however, not conclusions of primary fact
of the kind to which I have just referred. They involve an assessment of a
number of different factors which have to be weighed against each other.
This is sometimes called an evaluation of the facts and is often a matter of
degree upon which different judges can legitimately differ. Such cases may
be closely analogous to the exercise of a discretion and, in my opinion,
appellate courts should approach them in a similar way.
17. In Todd's case [2002] 2 Lloyd's Rep 293, where the question was
whether a contract of service existed, Mance LJ drew a distinction
between challenges to conclusions of primary fact or inferences from
those facts and an evaluation of those facts, as follows, at pp 319-320,
para 129:
‘With regard to an appeal to this court (which would never have
involved a complete rehearing in that sense), the language of
“review” may be said to fit most easily into the context of an
appeal against the exercise of a discretion, or an appeal where the
court of appeal is essentially concerned with the correctness of an
exercise of evaluation or judgment — such as a decision by a lower
court whether, weighing all relevant factors, a contract of service
existed. However, the references in rule 52. 11 (3) (4) to the power
of an appellant court to allow an appeal where the decision below
was “wrong” and to “draw any inference of fact which it considers
justified on the evidence” indicate that there are other contexts in
which the court of appeal must, as previously, make up its own
mind as to the correctness or otherwise of a decision, even on
matters of fact, by a lower court. Where the correctness of a
finding of primary fact or of inference is in issue, it cannot be a
matter of simple discretion how an appellant court approaches the
matter. Once the appellant has shown a real prospect (justifying
permission to appeal) that a finding or inference is wrong, the role
of an appellate court is to determine whether or not this is so,
giving full weight of course to the advantages enjoyed by any judge
of first instance who has heard oral evidence. In the present case,
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59.
60.
therefore, I consider that (a) it is for us ifnecessary to make up our
own mind about the correctness or otherwise of any findings of
primary fact or inferences from primary fact that the judge made
or drew and the claimants challenge, while (b) reminding
ourselves that, so far as the appeal raises issues of judgment on
unchallenged primary findings and inferences, this court ought not
to interfere unless it is satisfied that the judge's conclusion lay
outside the bounds within which reasonable disagreement is
possible. In relation to (a) we must, as stated, bear in mind the
important and well-recognised reluctance of this court to interfere
with a trial judge on any finding of primary fact based on the
credibility or reliability of oral evidence. In the present case,
however, while there was oral evidence, its content was largely
uncontentious.”
In the same case Neuberger J stressed, pp 305-306, paras 61 to 64, that the
question whether there was a contract of service on the facts involved the
weighing up of a series of factors. Thorpe LJ agreed with both judgments.
The judgment of Ward LJ in the As mni_ Generali case may be read as
advocating a different test, which would equate the approach of an appellate
court to findings of fact with its approach to decisions taken in the exercise of a
discretion. As Waller LJ correctly pointed out in Manning v. Stylianou [2006]
EWCA Civ 1655 , that is not the correct test, and it is the judgment of Clarke LJ
in the paragraphs quoted above from his judgment that gives proper guidance
as to the role of the Court of Appeal when faced with appeals on fact.”
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This distinction is worth bearing in mind. It is possible in this case that the judge might
make primary findings e.g. re which bugs existed and perhaps their likely extent (which
might be very difficult to challenge), but then seek to draw inferences from that (e.g. re the
extent to which it is likely that many more such bugs are present) which are more
questionable.
The challenges faced by such an approach should not be under-estimated: the position is
likely to be considerably more complex than that considered in the Datec case (and note the
warning in the Yorkshire Water case (quoted above) that “inferences were so interlocked in
the jigsaw of technical fact and opinion as to be inseparable from them”). Nevertheless this
may be an angle of attack worth considering.
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61.
62.
63.
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There is a related line of cases which considers the proper approach to the appeal of a so-
called “evaluative” judgment. This term is used in contrast to a case where a judge makes a
decision concerning a primary fact or law, or exercises a discretion. The key characteristic
of such an evaluative judgment is that the judge, having made various findings, whether of
fact or law, then has to evaluate whether taken together these matters mean that some other
measure is reached e.g. whether negligence is made out. An example is the case of Abela v
Baadarani [2013] 1 WLR 2043 where the judge had to decide whether there was “good
reason” retrospectively to validate steps which a party had taken to serve documents. Lord
Clarke JSC at para 23:
The judge held that there was [good reason]. In doing so, he was not exercising
a discretion but was reaching a value judgment based on the evaluation of a
number of different factors. In such a case, the readiness of an appellate court
to interfere with the evaluation of the judge will depend on all the circumstances
of the case. The greater the number of factors to be taken into account, the more
reluctant an appellate court should be to interfere with the decision of the judge.
As I see it, in such circumstances an appellate court should only interfere with
that decision if satisfied that the judge erred in principle or was wrong in
reaching the conclusion which he did.
The Court of Appeal will be slow to interfere with an evaluative judgment but it is a matter
of degree. In Bessant v South Cone Inc [2002] EWCA Civ 763 Robert Walker LJ said at
para 26:
26. How reluctant should an appellate court be to interfere with the trial judge's
evaluation of, and conclusion on, the primary facts? As Hoffmann LJ made clear
in Grayan there is no single standard which is appropriate to every case. The
most important variables include the nature of the evaluation required, the
standing and experience of the fact-finding judge or tribunal, and the extent to
which the judge or tribunal had to assess oral evidence.
The basic test for whether the appeal court will interfere with an evaluative judgment was
set out in Aldi Stores Ltd vy WSP Group ple [2008] 1 WLR 748 at para 16:
None the less an appellate court will be reluctant to interfere with the decision
of the judge where the decision rests upon balancing such a number of factors;
see the discussion in Assicurazioni Generali_SpA v Arab Insurance Group
(Practice Note) [2003] 1 WLR 577 and the cases cited in that decision and
Mersey Care NHS Trust v Ackroyd (No 2) [2007] HRLR 580, para 35. The types
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65.
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of case where a judge has to balance factors are very varied and the judgments
of the courts as to the tests to be applied are expressed in different terms.
However, it is sufficient for the purposes of this appeal to state that an appellate
court will be reluctant to interfere with the decision of the judge in the judgment
he reaches on abuse of process by the balance of the factors; it will generally
only interfere where the judge has taken into account immaterial factors,
omitted to take account of material factors, erred in principle or come to a
conclusion that was impermissible or not open to him.
Although the judge in the HIT will inevitably be making a wide range of evaluations, it is
not obvious that the judgment will be an evaluative one in the sense described here. There
is,
Ne
Fir:
for example, no obvious legal standard against which the facts are to be assessed.
vertheless, I think this line of authority is worth bearing in mind for a number of reasons.
st, it is possible that the Judge might set out a standard e.g. of robustness and then evaluate
the evidence against that standard. Secondly, it might just provide a means of trying to
present some sort of appeal if Post Office considers that the Judge’s overall gloss on the
evidence, or inferences he seeks to draw about e.g. Post Office generally, is objectionable.
Some further thoughts on these points:
(0)
(2)
If the Judge finds for Post Office or makes some limited and justifiable criticisms of
Post Office which Post Office can live with, all well and good. The question of an
appeal is unlikely to arise. We are not concerned with that scenario. The scenario we
are trying to prepare for is the one where Post Office loses and perhaps loses badly e.g.
on points which it considers unfair or where the Judge arrives at conclusions which are
more far-reaching than Post Office considers justifiable or proper;
I think it fair to say that one of Post Office’s views of the CIT judgment is that the
Judge did reach conclusions about certain matters which he should not have i.e. for
which he did not have any or sufficient evidence or in relation to an issue which should
not have been determined at that time. If that is correct, then it at least suggests that
this Judge may have, to put the point neutrally, a tendency to overreach the evidence
and if this tendency comes to the fore in the HIT judgment, there may be scope for
challenge;
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66.
67.
68.
69.
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(3) The indications from the Judge — in particular in terms of the questions he asked and
exercises he requested during closing submissions — suggest that he may be getting
teady to make some serious criticisms of Post Office. If that is correct, it is still unclear
what the extent and relevance of such criticisms might be: but again there is a risk that
he might overreach himself;
It is obviously a matter of speculation as to whether the Judge will approach things in a way
which makes his Judgment potentially appealable, but it occurs to me that there are a number
of areas where there is a greater risk of him putting things in a way which might be
challengeable. I set out some thoughts below.
The HIT is an unusual trial. It is a creature of the Judge, not the parties. There is a sensible
argument that if the Judge properly directs himself the whole trial will be shown to have
been a waste of time since it will not dispose of any part of any claim, and will not really
advance matters in any useful way. The Judge is unlikely to take that view and is likely to
want to deliver a judgment which he considers progresses the resolution of the dispute. It is
not obvious how the Judge can properly do so and there is a real chance that he might go
further than he ought to (at least in Post Office’s view). Note however that just as the Judge
is likely to strive to make the HIT Judgment meaningful, so the Court of Appeal may be just
as reluctant to reach a conclusion that effectively means that huge amounts of money have
been wasted.
With that proviso, it is worth considering some of the areas where there is potential for error
on the Judge’s part.
For example, the Judge ordered specifically that it was not to be “claimant-specific”.
Notwithstanding that direction, the Claimants called claimant-specific evidence. Post Office
was emphatic (and in my view correct) in saying that the Judge should not reach any
concluded view on whether particular claimants were affected by a bug. If he does so, that
might be appealable.
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70.
71.
72.
73.
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Similarly Post Office submitted that the Claimants’ approach was impressionistic and that
the Court could not properly draw the sorts of inferences which the claimants invited it to,
based on the actual number and nature of bugs identified by both experts. The Claimants’
case on this arguably amounts to little more than optimistic assertion on their part. In other
words it might be argued that they have not really given the Judge adequate material or
argument to enable him properly to reach a conclusion that they want him to. This raises a
more general point about the Claimants’ failure to spell out in any credible way what they
think the Judge should conclude. It is right to say they present a case on this in Appendix 1
to the Closing Submissions but the basis for their assertions (e.g. alleging that there is a
“significant & material risk” that it is likely that bugs caused discrepancies) is obscure in my
view and not obviously supported either by the lay or expert evidence of either side.
Although Mr Coyne was inconsistent on this point, there is a great deal of evidence from
him — in writing and during his cross examination — which makes it clear that Horizon is
robust and has been robust for most, and perhaps all, of its lifetime. If the Judge finds
otherwise (as he may want to) then that might be wholly inconsistent with the evidence.
Both sides’ experts invite the Judge to make extrapolations based on the evidence. For the
reasons set out above it may be virtually impossible to challenge the Judge’s primary
findings of fact but the inferences he draws from that evidence might be more susceptible to
teview. There are significant challenges here — after all, Post Office (and Dr Worden in
particular) is inviting the Court to reach some far-reaching conclusions based on the analyses
carried out so can hardly complain if the Court engages in that exercise but arrives at
different conclusions from the ones preferred by Post Office — but nevertheless this is an area
of the Judgment which might be worth focusing on in particular.
Post Office is well aware of the ways in which Dr Worden’s evidence might be criticised.
But there are formidable criticisms of Mr Coyne’s evidence as well which emerged during
his cross examination and which are articulated in Post Office’s closing submissions. If the
Judge prefers Mr Coyne’s evidence, the authorities suggest that he has got to explain why
and in my view there are respects in which that may present him with a real challenge: not
so much in saying that he prefers Mr Coyne’s evidence but in accepting it lock, stock and
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barrel and making the sort of inferences based on that evidence which the Claimants invite
him to (but in respect of which Mr Coyne’s position is far less clear and arguably much
closer to Post Office’s views i.e. in terms of the number of other bugs that may be out there).
74. A more moderate line might be to reject much of Dr Worden’s work on the numbers, accept
Mr Coyne’s investigations (and to some extent suspicions) but to stop short of reaching the
conclusion that Horizon was therefore riddled with bugs. I can see how that would be a
moderate and defensible line (and one which Post Office might well be content with).
Summary and Conclusions
75. Iwill try to draw these disparate elements together:
103)
(2)
(3)
This Note comes with a huge and obvious proviso/ health warning. We do not yet
have the HIT Judgment and until we do, Post Office cannot tell whether it even wants
to appeal, still less the possible grounds of any appeal. The Note is necessarily highly
speculative and matters should be comprehensively revisited once the Judgment
appears;
There are wider tactical considerations which Post Office will want to have in mind.
In particular, if permission is refused on the CIT (or only narrow permission is granted)
this is likely to have an impact on the attitude towards appealing the HIT. Similarly,
if permission to appeal is granted on the CIT in the terms sought, that may signal some
encouragement. It is beyond the scope of this Note to consider such points;
It will be enormously difficult — and perhaps impossible - to get permission to appeal
the HIT Judgment. There are virtually no questions of law involved. The Court of
Appeal is very reluctant to allow appeals on matters of fact due to a variety of
evidential and policy reasons. There is a strong presumption of finality: there is no
tight of appeal and establishing that there is a reasonable prospect of success, when
seen against the authorities, is formidable. Those significant hurdles are made even
more difficult in technically complex cases such as this one. The Court of Appeal (in
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(4)
(5)
iii.
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the form of Coulson LJ — likely to be the Judge considering any application) has
recently reiterated these principles in clear and strong terms;
The Judge’s conclusions in this case are likely to amount to nuanced findings based
on a wide variety of evidential sources — written evidence, oral and expert testimony.
It can be enormously difficult to disentangle such findings and the Judge — whether
deliberately or by necessity — may present his findings so that it becomes virtually
impossible to challenge any finding without trespassing onto areas, such as his
assessment of the reliability of witnesses, which the Court of Appeal is likely to
consider his exclusive domain;
That said, there are various areas where there might be some scope for further
consideration. The ones which appear possible candidates are:
A distinction is to be drawn between findings of primary fact and the inferences
to be drawn from them: the latter can, in some circumstances, be more
susceptible to review. Disentangling primary fact from inference can, however,
be very complex in a case such as this;
Similarly, if the Judge makes evaluations based on the primary findings, that
might be easier to challenge than the primary findings themselves. It is not
obvious how the HIT judgment will be evaluative in this way but we should bear
this in mind e.g. in the Judge’s consideration of robustness;
A Judge at first instance needs to provide proper explanation for the findings he
makes. What amounts to proper explanation can vary: in some circumstances,
it might simply be that he finds a witness more credible but where, as here, there
are competing explanations, further cogent explanation is likely to be required.
The point applies, perhaps even more obviously, to expert evidence. This may
present the Judge with some challenges;
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iv. Similarly, although the Claimants assert that they are entitled to findings
couched in far-reaching terms, it is unclear (at least to me) how such findings
can properly be justified on the basis of the evidence. If the Judge accedes to
their requests as to such findings, he will need to explain why;
v. If the Judge arrives at conclusions for which there is no, or no sufficient,
evidence, that can constitute a ground of appeal. Similarly if he arrives at a
conclusion which plainly evidences a misunderstanding of the evidence;
(6) There is a separate category for serious procedural or other irregularity which has
caused an unjust decision. It is difficult at this stage to see how this category might
otherwise avail Post Office — but again, an open mind should be kept.
(7) urge caution in relation to all of these potential categories. Candidly the likelihood
is that, given the issues in the HIT, the nature of the evidence, and the likely nature of
the Judgment, it may be very difficult to obtain permission to appeal and there may be
powerful tactical reasons for not even trying to do so.
Simon Henderson
16 September 2019
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