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CONFIDENTIAL AND LEGALLY PRIVILEGED
POST OFFICE GROUP LITIGATION WOMBLE
Steering Group Meeting: 13 September 2018 BOND
DICKINSON
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DECISION: Should Post Office defer its strike out application to the start of trial?
BACKGROUND
On 5 September 2018 Post Office made an application to strike out a considerable part of the
Claimants’ witness evidence on the grounds that it was inadmissible. The plan was for that
application to be heard in good time before the trial began. It was thought that this would be
possible because (i) the Court had already reserved a day of time on 19 September and (ii) the
Judge had previously said that the Court would make time available to hear a strike out
application (after we had made a request in July to reserve further Court time in September).
The aim of making this application before trial was to either have the evidence (and its prejudicial
effect) removed from the trial completely or, failing that, force the Claimants to explain why their
evidence was admissible, thereby allowing Post Office to be better prepared for trial. Either way,
addressing this point upfront would allow Post Office more time to take mitigating actions,
including potentially submitting additional evidence.
On less than 24 hours' notice, the Managing Judge called the parties into Court on 11 September
to discuss the sequencing and timing of Post Office's applications to strike out and for security for
costs, as well as other matters relevant to the trial in November. The hearing lasted around one
hour. It was primarily a scheduling hearing but the Court did touch on the substance of the strike
out application.
The Court ordered that the security application be heard on 19 September and the strike out
application be heard on 10 October, with the Managing Judge noting (contrary to what he
previously indicated) that he had no spare time before 10 October. Before the hearing on 10
October he has ordered both parties to set out, paragraph by paragraph, why they believe the
Claimants’ evidence to be admissible / inadmissible.
On points of substance, the Managing Judge said, in pretty clear terms, that he agreed in
principle with Post Office on what would amount to inadmissible evidence. He also however
indicated that he was not attracted to the idea of striking out inadmissible evidence before trial.
His view was that matters of inadmissible evidence could be adequately dealt with at trial. He
also expressed a degree of sympathy with the Claimants "wanting to tell their stories". There
was no criticism of Post Office in making the application; he simply expressed a view that he was
minded to approach things differently to the way proposed by Post Office.
Due to an error by the Court the strike out application had not been passed to the Managing
Judge before the hearing and he was only able to quickly skim a copy of the application that was
handed to him during the hearing. It would be fair to say that his views were his initial
impressions without having yet given the application due consideration. Nevertheless, this Judge
has repeatedly shown a predilection for making snap impressionistic decisions and then sticking
to them.
In light of these new circumstances, it is appropriate for Post Office to reconsider and, if
appropriate, adjust its strategy for making the strike out application.
COMMENTARY
The Managing Judge's comments reverse the comments he made in June, inviting Post Office to
make an application to strike out. He has also reversed his position on making Court time
available. This is a regrettable flip-flop in his position but one that we recommend that Post
Office should adapt to and which, we believe, will be seen as cooperative pragmatism by the
Judge.
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2.2 The delay in hearing the application to 10 October eliminates the possibility of Post Office being
able to submit further evidence before trial - the start of trial will simply be too close by this time.
2.3 Much confidence should be taken from the fact that Judge is broadly with Post Office on the
admissibility of evidence. Also, the Judge's order that the Claimants set out in writing why they
consider their evidence to be inadmissible will be very helpful for Post Office. In a sense, the
purpose of the application was to flush out the Judge's and the Claimants’ positions and that has
happened, just not in the way expected.
24 It should be kept in mind that should the application be dismissed because the Judge does not
want to deal the inadmissible evidence before trial, Post Office will likely be liable for the
Claimants’ costs (£50k - £150k).
2.5 Not having the application heard in late September (as we expected to happen) is not a desirable
outcome. Some of the tactical advantage in making the application has no doubt been lost. The
question now is how to maximise Post Office's position in these new circumstances.
2.6 The options for Post Office are:
2.6.1 Withdraw the application entirely (in a way that eliminates the costs risk).
2.6.2 Proceed with the application on 10 October.
2.6.3 Seek to adjourn the application and have it heard at the start of the trial.
3. RECOMMENDATION
3.1 The view of the legal team (including both QCs) is that the application should not be withdrawn.
We are confident that we are legally correct in saying the material is inadmissible and that the
Judge largely agrees with us. It would weaken Post Office's legal position considerably to drop
this point.
3.2 We also believe that proceeding with the application on 10 October now comes with heightened
risk. In light of the Judge's comments, we believe that application will, more likely than not,
failure — not on merit, but due to the Judge's approach to the procedural management of this
litigation. It should be noted that hearing the application on 10 October removes the possibility of
hearing the application at the start of trial. If the application fails on 10 October, Post Office will
not know the position on admissibility until it receives the Court's final judgement after the trial
has concluded.
3.3 We therefore recommend seeking to adjourn the application to the start of trial:
3.3.1 We believe this presents the best prospects of the application succeeding. By the time
the Judge hears the application, he will have spent four days reading the evidence and
listening to opening submissions. He will be fully immersed in the case. He will also
by this time have seen the scale of the inadmissible material and been told by the
Claimants that they do intend to rely on this material (and it's not just storytelling). He
may then have less sympathy for them than he expressed this week.
3.3.2 Atrial judge is a different beast to a judge dealing with case management. It is easy
for a Judge dealing with procedural issues to kick the can down the road, whilst at trial
there is no more leeway for this and issues must be tackled head on. Judges with their
trial hats on also tend to be bolder and more led by what is legally correct, than what is
fair or reasonable.
3.3.3 The ability to submit extra evidence has been lost regardless of which route is adopted,
so there is no difference in this sense between hearing the application on 10 October
or at the start of trial.
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3.3.4 The Managing Judge has set down a preliminary timetable for the trial. Within this, he
has reserved every Friday for applications. He has therefore already created the
necessary window of opportunity within the trial period to hear the strike out
application.
3.3.5 Having the Judge rule on admissibility at the start of trial still avoids the difficulty of
having to make submissions on two contradictory bases: one with the inadmissible
material and one without. This factors presents a real risk to Post Office's prospects of
success at trial and so hearing the application at the start of trial has real benefit.
3.4 In the event that the Judge refuses to defer the application to trial (and noting that the Claimants
will likely oppose this), our recommendation is that Post Office proceeds with the application on
10 October despite the Judge's comments and costs risk. This point is too important not to try to
address it upfront.
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