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Note on background to possible recusal application
Overview
1. Most Post Office branches are run by Subpostmasters (SPMs). They are not
employees, but are paid remuneration by Post Office in exchange for selling Post
Office products and services. A SPM will typically run an independent business (such
as a newsagent) alongside the Post Office branch, and will therefore benefit from Post
Office footfall.
2. Post Office provides SPMs with an online accounting system, through which they
account to Post Office. This is referred to as “Horizon”. This dispute centres on
Horizon. The (c.570) SPM Claimants appeared, per Horizon, to have shortfalls in
their accounts, which they were required to make good.
3. The Claimants’ case, insofar as relevant, is that:
a. This was a relational contract. That means that a term as to good faith is implied.
b. Other terms are construed/ implied, including terms to provide adequate training
and an adequate Horizon system, to investigate apparent losses reasonably, to
communicate problems with Horizon, and not to suspend or terminate contracts
without reasonable cause.
c. Various express terms should be struck down as onerous and unusual and/or
unreasonable pursuant to UCTA.
d. Post Office breached its obligations listed in (b) above, made fraudulent
misrepresentations to the Claimants (including by misinforming them about
problems with Horizon when they called the Helpline), harassed (including by
sending letters demanding payment) and maliciously prosecuted them.
e. The Claimants have suffered losses including distress and ill-health, and damaged
employment prospects.
Procedural background
4. This case is being determined in stages. It was ordered that the nature of the legal
relationship should be determined first. Paragraph 1 of the Order of 25 October 2017
provides that there “shall be a trial of common issues, to determine issues relating to
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the legal relationship between the parties”. That Order also listed those “common
issues”. An Order of 23 March 2018 set out, for the next trial, a set of issues regarding
the operation of Horizon. That trial, which is mostly focused on expert evidence, is
happening at the moment. The third trial, currently scheduled for November 2019,
focuses on limitation, and associated breach, issues.
The background to the Common Issues trial included:
a.
A hearing discussing the Common Issues trial on 19 October 2017, at which
counsel for the Claimants said, at p.12F, that while he accepted that there would
be a “theoretical risk” of excessive evidence being introduced, “J do regard it at
the moment as a secondary if not tertiary issue because of the way we've sought to
structure the approach and because there are largely purely questions of either
contractual interpretation simpliciter or contractual interpretation in a context
which at least is largely common ground.”
At the same hearing, Fraser J said, at p.14F, that if evidence which is adduced
goes “to breach...it wouldn’t be relevant evidence anyway.”
The Order setting up the Common Issues trial dated 25 October 2017 (referred to
above) ordered both Statements of Case (at paragraph 8) and witness statements
(at paragraph 10) to be specifically “in relation to the Common Issues”.
A further hearing on 2 February 2018, at p.5G, Fraser J said the following to
counsel for the Claimants: “When this discussion/dispute arose at the last CMC,
you addressed me shortly on why there was the need for factual evidence at all on
the common issues, which you effectively said it is to put the contractual relations
in context. I am giving you a shorthand, but that is more or less what it is.”
At the same hearing, Fraser J said, at p.17F, that “in a way the common issues are
refinements of what really is the main general point which is what was the nature
of the relationship.”
And at p.34C-D, he said: “There are in this case three main rafts of dispute, there
is the contractual relations, there is the operation of Horizon and there is the
impact of that on the individuals... The first of those three main areas is being
tackled in the autumn of this year.”
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At a hearing on 22 February 2018, Fraser J said, at 9D-E: “/ thought I made this
crystal clear last time but I appear not to have done so I am going to repeat
myself, so far as resolving the Common Issues which are, and I have reminded
myself what they are, purely points of construction... On the authorities the only
factual matrix which is relevant to construe the meaning of those contracts in law
is common knowledge. That is without doubt orthodox and the correct way of
doing it.”
He applied the criterion for disclosure of considering whether a particular item
was “relevant to the Common Issues’: see e.g. p.26B; p.46G.
He said, at p.48A, that “what happened or what should have happened is not
relevant to construing the Common Issues.”
At a hearing on 5 June 2018, Fraser J said, at p.S7E-F: “Whatever the factual
evidence upon which you seek to rely it has to be relevant to the Common Issues...
If it is not relevant to the Common Issues it is not admissible... In those
circumstances it is difficult based on reading the authorities to see for example, to
use Mr. Cavender's example, how evidence of breach could remotely be relevant
to the Common Issues Trial.”
At p.59C-E, he said: “So this is what Iam going to do. I am going to express
myself very clearly. If you serve evidence of fact which includes passages which
are plainly not relevant and, hence, not admissible, Mr. Cavender is going to have
a choice. He can either simply say, "I am not going to be cross-examining at all"
or he is going to issue an application to have it struck out. If he does issue an
application to have it struck out and that application is effective, it will involve the
court going through it and simply striking out large amounts. The court will make
time to do that but cringing costs consequences will follow.”
Again, at p.60A, he warned against the adducing of “wide-ranging evidence of
fact...that cannot possibly form part of the factual matrix.” He then said to
counsel for the Claimants, at p.60C: “a very powerful shot has now been fired
across your bows on two occasions and I do not mean by [counsel for Post
office]. I mean by me.”
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m. However, when Post Office subsequently applied to strike out parts of the post-
contractual evidence adduced by the Claimants in their witness statements, Fraser
J refused the application, and said (Bates v Post Office [2018] EWHC 2698 (QB),
at p.52:
“Tt is worth expanding on this point made by the defendant, which is relied
upon in favour of allowing this application. It is that as a result of admitting
this evidence (by which the defendant means failing to find it inadmissible and
striking it out) the court will either find itself asked, or will make, findings on
matters that are in reality to be dealt with in the Horizon Issues trial, or in the
later trials that are to deal with specific breach, loss and damage alleged by
the individual Lead Claimants. I do not accept that there is such a risk. The
trial that is about to commence on 5 November 2018 is to deal with the
Common Issues. Those Common Issues number I to 23. They are attached to
Schedule 1 of the Directions Order of 19 November 2017. They are the agenda
for that trial. There is no such risk of the court making findings on the Horizon
Issues, or of the court making findings on breach. Judges are expected to be
able to consider relevant matters pertaining to different issues, keeping them
compartmentalised where necessary. What is relevant for one issue may not be
relevant to another.”
6. Nonetheless, at trial the judge reiterated (Day 14, p.50, lines 2-3): “J am entirely clear
that nobody wants me to go near breach”.
Post Office’s position at trial
1.
In its written opening submissions Post Office sought to remind the Court that (at
paragraphs 29-31):
“29. This trial is the first stage in the resolution of the issues in the group
litigation. It necessarily precedes the determination of issues as to the
functions and reliability of the Horizon system and the determination of
matters going to breach of contract and liability in individual cases.
30. The Court confirmed in Judgment No. 2 that it would not be drawn into
“making findings on the Horizon Issues, or...making findings on breach” at
the present trial (para. 52). Post Office welcomes that ruling. Post Office
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anticipates that Cs’ case on the supposed relevance of its breach allegations
to the Common Issues will become more filly articulated at trial.
31. In any event, it will be important for the parties not to stray into issues that
fall to be determined at the Horizon trial and/or issues as to breach. The
Court will recall that Post Office has not adduced any evidence at this trial to
make good its case on Horizon; nor has it sought to address in evidence the
various breach allegations that appear in Cs’ witness evidence. Post Office
has not prepared for a trial on Horizon or a trial on breach. The function of
this trial is not to reach any findings on those issues, or on facts that go to
those issues.”
2. This position was reiterated in oral opening submissions:
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1 You will see what we said in our written opening
2 about things that it would be usefil -- findings to make
3 and not to make. In your number two judgment you made
4 it clear you are not making findings on the breach
5 allegations or allegations about Horizon.
6 MR JUSTICE FRASER: Everyone is agreed about that.
7 MR CAVENDER: See paragraph 52. What I also ask that you
8 don’t do is make any findings of fact that go to -- are
9 ancillary to those breach allegations or Horizon
10 allegations , rather than the Common Issues. Otherwise,
11 again , you have the difficulty of overlap and arguments
12 about issue estoppel and all these kinds of things .
13 MR JUSTICE FRASER: It depends what you mean by findings of
14 fact that go to breach. I imagine, if there are any
15 necessary findings of fact at the end of the evidence in
16 terms of disputes of fact as to whether Mr Bates got
17 document X, you won't want me to leave that floating in
18 the air, will you?
19 MR CAVENDER: My Lord, no. That goes to my first
20 category of --
21 MR JUSTICE FRASER: I know that and I haven't yet bottomed
22 that out with Mr Green. Because, on one view, a finding
23 of fact that goes to breach could involve any finding of
24 fact in relation to the contractual relationship ,
25 couldn't it ?
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J MR CAVENDER: But what I am talking about is downstream. So
2 the training wasn’t good enough, that they didn’ t have
3 sufficient report writing , that they didn’ t have enough
4 help with investigations ; all those things that are
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5 downstream. Potentially breach. We haven't brought the
6 evidence to the trial to deal with it. There hasn't
7 been full disclosure on some of these issues . So we
8 won't be dealing -- and this has been our persistent
9 position -- obviously this is a trial about the contract
10 and the relationship . Those are my submissions.
11 Obviously the court will do what it will do.
3. Post Office once again stressed this in its written closing submissions:
“31. This trial is the first stage in the resolution of the issues in the group
litigation. It necessarily precedes the determination of issues as to the
functions and reliability of the Horizon system and the determination of
matters going to breach of contract and liability in individual cases.
32. The Court confirmed in Judgment No. 2 that it would not be drawn into
“making findings on the Horizon Issues, or...making findings on breach” at
the present trial (para. 52). {B7/27/19}. Post Office respectfully submits that
the Court should also resist any invitation to comment on the substance of
those issues and disputed facts going to them, even if those comments fall
short of findings.
33. It remains, even after hearing the evidence and cross-examination, wholly
unclear on what basis Cs will seek to persuade the Court that it can have some
regard to (or should make any findings or comment upon) the evidence of
post-contractual conduct and documents. Nothing that Cs argued in their
opening submissions sheds any light at all on how Ms Stockdale’s experience
of shortfalls in 2016 is said to be something to which the Court can have
regard in interpreting the relationship that she entered into with Post Office in
2014, for example. Nor is there anything to suggest that her experience is
relevant to any other C’s relationship with Post Office at any relevant time.
The same goes for the other lead Cs.
35. Ultimately, no case as to the relevance of the post-contractual events has
been pleaded or set out in the Written Opening Submissions because there is
no such case to advance. The simple truth is that Cs have always intended to
ignore the limitations on the scope of the Common Issues Trial in the hope of
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securing some advantage by bringing the whole of their claims (without
proper responsive evidence from Post Office and without full disclosure).
36. Now that the promised case as to relevance has failed to materialise, it is
clear that Cs’ intention must always have been to engineer a situation in
which they can fight out the merits of the lead claims on an unlevel playing
field. Cs must anticipate, for example, that the absence of full evidence and
disclosure puts them in a stronger position to obfuscate in relation to their
own post-contractual conduct (although, ultimately, one of the lead Cs felt
that she had to invoke the privilege against self-incrimination as regards her
accounting to Post Office). All this must be in the vain hope that the Court
might be influenced by inadmissible evidence in determining the Common
Issues.
37. It remains acutely important not to stray into issues that fall to be
determined at the Horizon Trial and/or future trials on breach and liability.
The Court will recall that Post Office has not adduced any evidence at this
trial to make good its case on Horizon; nor has it sought to address in
evidence the various breach allegations that appear in Cs’ witness evidence.
Post Office has not prepared for a trial on Horizon or a trial on breach. It has
not, for example, led expert evidence on Horiz
m, and it has not provided
anything like the accounting evidence that it would lead at a liability trial. The
function of this trial is not to reach any findings on those issues, or on facts
that go to those issues.
38. In this context, it was wholly unfair and unattractive for Cs to criticise
Post Office’s witnesses for having failed to address irrelevant material in their
witness statements: see, e.g., the implied criticism of Ms Van Den Bogerd for
not having addressed in her witness statement various internal Post Office
documents that have been disclosed {Day8/165:12}, despite the fact that such
documents are irrelevant to the Common Issues and any evidence in relation
to them would be inadmissible. Ms Van Den Bogerd’s witness statement was
of course prepared in light of the limited permission to file and serve evidence
“in relation to Common Issues”: see para. 10 of the First CMC Order
{B7/7/5}. She makes clear in the witness statement itself that her evidence is
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limited to matters that she considers could have been known or anticipated by
an applicant SPM at the time of contracting: see, e.g., para 64 (in relation to
the operation of an agency branch) {C2/1/17}, paras 91-98 (in relation to
Horizon) {C2/1/27}, paras 114-115 (in relation to further training and
support) {C2/1/32} and para 116 (in relation to retail “shrinkage”)
{C2/1/33}. She was carefil not to trespass onto the Horizon Issues: see, e.g.,
Fn. 22 and 24 {C2/1/23}. It is perverse to criticise a witness for seeking to
comply with a direction as to the scope of evidence and for limiting herself to
admissible evidence. Ms Van Den Bogerd of course had the benefit of advice
as to the proper scope of her evidence: {Day9/73:7} to line 14.
39. By contrast, Cs’ submissions and cross-examination of Post Office’s
witnesses ignored the limits on the proper scope of the present trial and
strayed well beyond anything that could be relevant and admissible for the
purposes of resolving the Common Issues. This was in at least five respects.
40. First, Cs sought to explore technical matters that are set down for
determination in the Horizon Trial and which have no relevance to the
Common Issues:
(a) Mr Green QC invited the Court to look at transaction log print-outs from
the Horizon terminal, arguing for the utility of such print-outs in tracing the
transaction history of the branch: {Day1/19:7} to line 22. There is extensive
evidence on this in the Horizon Trial.
(b) Ms Van Den Bogerd was taken to documents relating to known bugs and
errors in Horizon: see, e.g. {Day8/81:16}. The Payments Mismatch bug to
which the witness was referred was presented as having created shortfalls or
gains (and this was reflected in the Court’s questions on it ), whereas its effect
was in fact to obscure (or “lose”) a shortfall or net gain that existed at the
time of rolling over into the next trading period: see {G/8}. Any superficial
exploration of technical issues creates a substantial risk of misunderstanding.
Cs cannot invite the Court to skate over the surface of these technical issues.
(c) Ms Van Den Bogerd was asked to comment on various proposals for
incremental improvements to technical aspects of the Horizon system: {Day
8/114:16} to {Day8/118:9} and {Day9/2:19} to line 25. The suggestion, which
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is wrong as matter of a logic and common sense, seemed to be that because
system was or might be improved, it must previously have been inadequate.
(d) Ms Van Den Bogerd was asked about the technical possibility of remote
alteration of branch data by Fujitsu: {Day9/30:24} to {Day9/35:21}. The
Court intervened to stop the line of questioning on the basis that it could not
be “of the remotest assistance”: see {Day9/35:23}.
(e) Mr Green even sought to cross-examine Ms Van Den Bogerd on parts of
her witness statement for the Horizon Trial: {Day8/60:4} to line 24. It is hard
to imagine a starker example of Cs’ refusal to respect the structure of this
group litigation and the scope of the Common Issues Trial.
(f) Mr Breeden was asked about the possibility of various technical problems
with the Horizon system, including as to “client data integrity”:
{Day7/113:17} to {Day7/114:4}.
41. All of this — the documents put to the witnesses, the questions and the
witnesses’ answers — is wholly irrelevant to the determination of the Common
Issues. This is obvious even from Cs’ oral opening submissions, in which it
was stated that the technical detail in relation to Horizon was not known to
SPMs at the time of contracting: “incoming subpostmasters, prior to
contracting with Post Office, would have no knowledge of how Horizon itself
worked and in particular the accounting points...”: {Day 1/27:7} to line 11.
None of it can be matrix of fact or otherwise relevant to the Common Issues.”
4. Finally, it was addressed in oral closing submissions:
Day 14, page 27
18 MR JUSTICE FRASER: And you don’t take post-contractual
19 matters into account on either footing .
20 MR CAVENDER: Or hindsight or views from hindsight. You
21 have to ask the right question. The right question is
22 not: well, is it reasonable? You don’t ask: well, what
23 term should be implied in light of what happened in
24 fact ? That is the mistake made in Bou Simon by the
25 First Instance that the Court of Appeal identified . And
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J there is a real risk of doing that here - -
2 MR JUSTICE FRASER: I don’t think there is .
3 MR CAVENDER: It’s an easy mistake to make as Bou Simon
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4 shows. There is a lot of evidence here of that nature.
5 My learned friend has put his case both in
6 cross-examination and his closings on that basis . So
7 you have a yawning invitation to make a mistake and it
8 is my job to try and prevent that happening and I intend
9 to try and do that . But in doing that , you have to be
10 very careful what question you ask and what evidence you
11 have regard to when you ask it .
12 Iwill just divert a moment and put some skin on
13 those bones. When you are looking at implied terms
14 particularly , my learned friend is fascinated by doing
15 it in the guts of the dispute and the thing going wrong.
16 When you know a lot more detail - - and at that stage you
17 would be able to identify certain cardinal obligations
18 and things that have gone wrong and try and put them
19 right.” Tempting but wrong”, in the words of M&S.
20 At the stage you're contracting you know very much
21 less . You have a very high level view of what you
22 expect. So the very notion of being able to imply
23 precise terms dealing with suggested infelicities or
24 difficulties down the line is itself wrong headed
25 because you wouldn't be able to do that .
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24 We also say it was somewhat cynical of the claimants
25 to take this approach because there has not been full
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J disclosure on either side dealing with the issues they
2 now seem to want to be dealt with. In particular , what
3 we call the breach allegations , we only have a few
4 documents that happen to be caught in the net of the
5 word searches. Your Lordship should not think that we
6 have full disclosure on all these issues . We do not.
7 And the real temptation here is to think you have and to
8 draw inferences from an incomplete documentary record,
9 incomplete evidence, which would in my submission be
10 obviously wrong.
11 So, for instance , your Lordship should not be fooled
12 into thinking there has been anything like proper
13 disclosure on allegations as to training or shortfalls
14 or investigations . Your Lordship did not order such
15 disclosure , there has not been such disclosure , and
16 Post Office has not led evidence on those issues . My
17 learned friend has put questions on those areas - -
18 MR JUSTICE FRASER: You have led evidence on training .
19 MR CAVENDER: My Lord, only very, very high level . I think
20 it was a couple of paragraphs --
21 MR JUSTICE FRASER: Quite a lot of your evidence was high
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22 level in some areas, and I’ m not criticising , 1’ m
23 observing, but you did lead evidence on training .
24 MR CAVENDER: My Lord, only just high level evidence. If
25 you wanted evidence on training , we would have evidence
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1 from trainers and the proper documentary record of the
2 plans et cetera . All we did was have a few slides , that
3 wasn’t proper evidence.
4 The other thing about training of course is it is
5 wholly irrelevant . Why? Because my learned friend’s
6 case is that all the contracts were made in advance of
7 even initial training , let alone subsequent training , so
8 the whole question is wholly irrelevant .
9 MR JUSTICE FRASER: The irrelevance point I understand, but
10 it is wrong to submit you didn’t put in any evidence on
11 training - -
12 MR CAVENDER: We didn’t put any proper evidence on
13 training - -
14 MR JUSTICE FRASER: Mr Cavender, there is no distinction
15 between putting in evidence and putting in proper
16 evidence. You might have a point that it could have
17 been more comprehensive --
18 MR CAVENDER: There has been no disclosure on training.
19 MR JUSTICE FRASER: There might not have been. But you did
20 put in evidence on training because some passages of
21 your witness statements expressly deal with training .
22 MR CAVENDER: My Lord, yes, there is a paragraph or two in
23 Mrs Van Den Bogerd’s statement that on a very high level
24 says . But not evidence of training where your Lordship
25 can make any finding. Her evidence is about what could
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1 have been known or anticipated at the date of inception ,
2 that is what her evidence goes to if you look at it , not
3 the actual experience of training , how good or bad it
4 was, were shortfalls dealt with in sufficient detail ,
5 which is the point my learned friend wants it for .
6 MR JUSTICE FRASER: By "date of inception ”, do you mean...
7 MR CAVENDER: The contractual date.
8 MR JUSTICE FRASER: The contractual date.
9 MR CAVENDER: Indeed. That is why it is so general .
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7 In my submission, the court should be focusing its
8 findings on the date of contracting , we just touched on;
9 what each lead claimant knew or could be taken to have
10 known at the date of contracting through his or her own
11 due diligence and through the interview process;
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12 findings as to what a reasonable person in the position
13 of the claimant would have understood about
14 the relationship as at the date of contracting ; and
15 points of credibility going to lead claimants where they
16 bear on any of those earlier points .
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24 MR JUSTICE FRASER: I understand your submission: you are not,
25 because of the nature of the peculiar situation in which
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1 the claimants find themselves, inviting me to make
2 adverse findings on their credibility .
3 MR CAVENDER: Correct.
4 MR JUSTICE FRASER: Is that right ?
5 MR CAVEND.: It
6 MR JUSTICE FRASER: So when you put to at least some of
7 them, I think , that they weren't telling me the truth ,
8 do you want me to ignore their answers?
9 MR CAVENDER: My Lord, it is really a matter for you at the
10 end of the day, what you think is proper. What I am
11 saying is that there has not been full disclosure on
12 those matters, that the reason that it was put was to
13 seek to undermine the impression they had given in their
14 witness statements that they were telling the full
15 story . So what we are left with, my Lord, in my
16 submission, is , you should treat their witness evidence
17 with caution , because you have seen that not in every
18 respect has their account of the way things worked out
19 been full or sometimes fair .
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23 MR JUSTICE FRASER: So far as the claimants’ evidence is
24 concerned, therefore , you say treat it all with caution
25 for all the reasons you have gone through, but you are
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1 inviting me not to make any findings on their
2 credibility .
3 MR CAVENDER: Indeed.
4 MR JUSTICE FRASER: Any adverse findings on their
5 credibility , is that right ?
6 MR CAVENDER: Yes, because to do so you would have to make
7 findings as to the accounting system, to the TCs, what
8 happened in fact , and you haven’t had full evidence on
9 that by any means.
10 You can test it in this way: these are questions of
11 breach, this is a classic question of breach. This is
12 what they will be if there is a breach trial in October,
13 or whenever it is going to be, that will be exactly what
12
14 these witnesses will be putting forward. But then with
15 the benefit of the judgment here as to what the rules
16 are, and with Horizon and how good or bad that is . But
17 this will be the meat and drink of that breach trial .
18 Now, what has happened in this court in the last
19 four weeks is a fact . It has been recorded, it is in
20 the transcript . Those witnesses can of course be taken
21 back to that evidence during the breach trial and it
22 will be surprising if they were not. So it is not
23 wasted, it is in the can... It is still as a matter of
24 record it is there . But for you to make findings on it,
25 my Lord, we go further , for the same reason you
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1 shouldn't make findings on the accounting processes
2 generally and all these other matters that have come in
3 by a side wind but there has not been full disclosure
4on.
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2 MR CAVENDER: The
3 bright line 1 am making is issues of breach really .
4 MR JUSTICE FRASER: You are saying don’t go near findings
5 that relate to breach, is that right ?
6 MR CAVENDER: Indeed.
7 MR JUSTICE FRASER: Is that the best way of summarising it?
8 MR CAVENDER: It is, and we said that at the beginning. And
9 your Lordship said in judgment 2 you are not going to
10 make findings on breach, and I said good, obviously, but
11 also don’t make findings of fact leading to those
12 questions of breach. Not obviously whether there is
13 a contract or not, you could - - if you took that too
14 far . But not in directly leading up to findings on
15 breach, or would do. Platforms of fact that would lead
16 to that.
17 MR JUSTICE FRASER: Understood.
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11 MR CAVENDER: So in summary on important points of this
12 introduction in terms of scope, the court should not
13 have regard to post-contractual evidence, evidence of
14 breach, for two distinct reasons: firstly , to do so
15 would involve a basic error of law, and, secondly, would
16 involve a serious procedural irregularity . It would do
17 the second because the orders of the court setting out
18 the issues for trial and the issues on which evidence
19 were to be admitted is set out in the Common Issues.
20 The Statements of Case have been ordered to be limited
21 to those issues , see paragraph 8, and the witness
22 statements were limited to those issues , see
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23 paragraph 10. That is the trial Post Office has
24 attended and involved itself in . It has not engaged in
25 wide-ranging evidence on breach, which the claimants
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I have, and so not only would it be an error of law to
2 have regard to it , it would also be procedurally unfair
3 for that reason. Because in the absence of full
4 disclosure on matters such as the dispute , Horizon,
5 accounting, procedures, deficits , training and Helpline ,
6 without full evidence and disclosure on all those
7 points , the court should not engage in inferential
8 findings or comments along the way. It shouldn't do so
9 as a matter of procedural fairness but also particularly
10 given there are two other trials that have been loaded
11 in the system effectively on Horizon and on breach,
12 where on those very matters there will be full
13 disclosure , there will be full evidence and there will
14 be determinations.
15 The other point I mentioned I think earlier was
16 whether you should also be careful because of the nature
17 of the way it has been set up - - we had a humorous
18 debate about whether it was odd or not, but whether you
19 should make comments as well about ”be careful to”,
20 because, otherwise, an independent observer might think,
21 wrongly obviously, that the comments you make are
22 a route along the way to reaching a particular view or
23 a finding , which you would then have to find in judgment
24 two or three - - sorry, in trial two or three . So again
25 there is that sensitivity , which your Lordship no doubt
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1 will obviously have in mind.
The Judgment
Improper findings
5.
In that context, Post Office is concerned that large parts of the judgment either make
findings, or strongly indicate what the judge’s findings will ultimately be, on
questions of breach, and (to a lesser extent) also on questions of the operation of
Horizon (the subject-matter of the ongoing trial) and loss and damage. That is all in a
context where there has been no proper process providing for disclosure or witness
evidence on those matters (because they fell outside the scope of the Common Issues
trial, which focused only on the legal relationship, viewed through the prism of six
Lead Claimants).
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6. The following are significant examples (identified by paragraph number).
Training
7. The adequacy of training will be an issue at future breach trials. As to that, the judge
(in the draft judgment) made the following findings/ indications:
193: Mr Sabir’s evidence on this, which I accept, matches the other evidence
from other Lead Claimants about in-branch training.
297: She attended the classroom training with her son. She did not have all the
training she was told she would receive because the premises were subject to
building works necessary to transform it into a Local branch, and also because
one of the trainers who attended in the first week after her branch had opened,
a lady called Lina, attended for only one day and had to leave unexpectedly;
another person called Daniel, did not really know what he was doing
(according to Mrs Stockdale) “and stayed in the back mostly”.
346: Mrs Dar raised a specific query with the trainer about balancing and
Horizon, and was told if there were problems or she was in doubt, she should
call the Helpline.
352: Mrs Guthrie also said that she would come back to give further training
and support. In fact she did not, at least not until some months later on 15 July
2015 when she came back to carry out an audit.
437: nowhere in the training (or the interview, or anywhere else) is there any
recognition of how to deal with a shortage, discrepancy or disputed TC of the
order of magnitude of these six Lead Claimants, and if the steps instructed on
these laminated instructions were followed, there would be shortages in the
cash accounts of branches where these occurred.
569, factual matrix 70: On the evidence of the six Lead Claimants, even when
further training was specifically requested it was not provided, and in some
cases the SPM was told there was no entitlement to it, even though it was
specifically requested.
955: One feature which seemed to me to be wholly absent from the training
courses run by the Post Office for the Lead Claimants was any sort of
assessment or test of competence at the end of the training. Every case will of
course be wholly different, but whereas one individual might, after four days,
be wholly competent to use the Horizon system unsupervised, another might
need longer than that. If they are all given four days of training regardless, and
there is no assessment at the end of that four days, then some incoming SPMs
might not be conversant with all the features of the system. This situation is in
no-one’s interests, and in my judgment I would go further and say it is
contrary to business logic. Although there was some in-branch training, the
approach to that did not appear to be uniform either. Add to this that the
auditors have the dual role of in-branch training after branch transfer day, and
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subsequent auditing of that particular branch, it can be seen that inadequate
training is not likely to be readily discernible to the Post Office. Certainly the
subjective experiences of the Lead Claimants so far as training was concerned
was far from ideal. I do not consider that it would be difficult for any training
to include at the end of it some sort of assessment or test, and if a SPM were to
fail that assessment or test, then they would not have been satisfactorily
trained. They would therefore require further training.
Shortfalls
8. At the breach trials there will be important issues as to the cause of shortfalls, and
how SPMs dealt with them. As to that, the judge (in the draft judgment) made the
following findings/ indications:
170: Mrs Stubbs simply could not resolve these shortfalls, or explain them
172: [Mrs Stubbs] did her best at the time to try and work out what was
happening, the reasons for it, and also notified the Helpline on numerous
occasions, as well as keeping her own separate paper records in an attempt, or
more accurately numerous and concerted attempts, to work out precisely how
these shortfalls could have arisen.
217(2): Mr Sabir had no separate record, and no access on Horizon, to the
number of scratch cards he should have had. He requested this information
from the Post Office, who did have it. It was not provided.
218: Mr Sabir’s account is substantiated by the audit report itself, prepared by
the auditors two days after the audit.
219: That cash was the very cash that Mr Sabir had been keeping in the safe. I
accept Mr Sabir’s evidence and I found him to be a reliable witness.
223: the vital piece of information he needed (the number of scratch cards the
system was showing that he should have) was so readily accessible to the Post
Office auditors, but never provided to him.
302: Her experience was not a happy one. Unexplained shortfalls would
appear on Horizon when she was completing a weekly balance or submitting a
trading statement. There were no explanations for these, and there was no way
available for her to get to the bottom of them either. She found it very difficult
to obtain any details from the Post Office, and did everything she could think
of to keep the most detailed records within the branch itself.
309: She did not know what product had caused her loss. This was part of the
problem. She had sought assistance for this problem and even a Post Office
auditor could not help.
311: Mrs Stockdale then took very sensible and extremely thorough measures.
She introduced a robust paper recording system for all cash movement in the
branch. She required all staff to complete manual till and safe logs, what had
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been paid in or paid out, and even the denomination of notes. She could
therefore do a complete cash reconciliation in and out. She installed CCTV so
she could monitor her staff at all times. She trusted them but she wanted to be
able to have tight control of all cash, in and out, and to be able completely to
tule out theft by her staff. She explained that she spent hours with the records,
including her own paper records, trying to investigate. These shortfalls simply
kept occurring and she could not work out why. Even thoroughly interrogating
her records and viewing the CCTV footage, she could not explain how this
was occurring.
346: She had problems with Horizon, logging on took some time and even
before the branch opened Mrs Dar said there was a shortfall of £977, which
she believes was due to mistakes by Mrs Guthrie in inputting the stock into
Horizon.
422: All Mrs Van Den Bogerd was prepared to accept about this complaint by
Mrs Stockdale was that there was “some truth” in it, but it was “not entirely
true” because the information was there, but sometimes took too long to find.
This answer is inconsistent with the documents she had drafted internally.
9. There will be issues in future breach trials as to the quality of the investigations which
Post Office conducted into shortfalls. As to that, the judge (in the draft judgment)
made the following findings/ indications:
115(1): Mr Bates was given only 16 days to reply (which attitude appears to
me to be symptomatic of how the Post Office regularly treated at least some of
its SPMs)...It suggests that Mr Bates’ experience [of shortfall investigation]
was not an isolated one. The letter states “It has been necessary to formulate a
consistent approach for all such cases.” “All such cases” can really only
sensibly mean that there were other cases, and the Post Office was explaining
that time had been spent in deciding on a “consistent approach” for all these
cases.
165: “It might be thought that if there were any proper investigation which
actually reported on this, it could and should have been put to Mrs Stubbs, but
if what was put to Mrs Stubbs in this trial is said by the Post Office to amount
to such an investigation, then it is telling. The “investigation” appears, on the
material deployed in this Common Issues trial, to have consisted of no more
than Fujitsu asserting that there was “nothing wrong with the kit”. That is not,
in my judgment, an investigation under any normal understanding or meaning
of that word in society generally. The Post Office’s way of dealing with this
wholly ignores the provision in the SPMC and a SPM’s liability for losses in
that document (which on the Post Office’s case is what applied). There was
simply a blanket assertion by the Post Office that she had to pay these sums.”
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208: Mr Sabir notified the Post Office of this as soon as he discovered what
had happened. Mr Sabir corrected the situation in physical terms by making
sure the money was put in the safe, and plainly knew himself there was a
discrepancy on scratch cards. He had reported this himself to the Post Office
and had a reference number for this, and also expressly asked for and was
awaiting help. That help simply never came.
247: He was told he had to make good any losses and he was not told how to
investigate or resolve discrepancies or apparent shortfalls. He was simply told
to contact the Helpline.
557: Mrs Stockdale assumed the debt recovery letter she received meant an
investigation had been done and resolved against her. That assumption was not
correct. Mrs Stubbs has been pressing for many years to find out the outcome
of whatever “investigation” was in fact performed in her case. In both cases,
the Helpline had been notified by each of these Lead Claimants. In neither
case could the Post Office produce and put to the claimant, or show the court,
the end product of any such investigation.
10. The Claimants will say, at breach trials, that operators of the Helpline (a) provided an
inadequate service, and (b) made misrepresentations to them. As to that, the judge (in
the draft judgment) made the following findings/ indications:
248: He would contact the Helpline about 6 or 7 times a month, and was
shocked at the inadequate support. He would often experience apparent
shortfalls on the days when he would perform balances, but could rarely get
through to the Helpline on these occasions. He thought the advisers were ill
informed and would often give the impression of reading off a script. Even his
area manager could not help, and he was told by his area manager that he
should pay shortfalls and wait to see if a Transaction Correction was issued in
his favour.
249: Apparent shortfalls began appearing in his accounts soon after the branch
transfer and continued regularly. He could not resolve these through the
Helpline.
303: When she phoned the Helpline she was told that this was “only £3,000,
that’s a drop in the ocean compared to some people’s problems”. This
contradicted an earlier statement from the Helpline when she had been told she
was the only SPM experiencing these problems, which just made her feel
inadequate. I will track this particular shortfall through. She phoned the
Helpline again on 21 October 2014 and again asked for assistance, as well as
further training in relation to the balancing problems. She felt that a sum of
over £3,000 was a lot of money, notwithstanding the views of the Helpline
operator when she first called. Mr Longbottom came to her branch on 29
October 2014 to try and work out what was going on, and she let him have
access to her records. He printed out various documents but he could not get to
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the bottom of it either. He said the problem would be referred to the Horizon
Technical Desk. I accept this evidence.
357: Her experience with the Helpline was not a positive one. She contacted
them 2 to 3 times per month, often in relation to apparent shortfalls or
balancing. Most of the time she was told to recount and if there was still a
shortfall she had to make this good (which means pay it herself). Once, she
was told how to “get around” the problem by altering the stock figures to
balance, which shocked her. She considered there was some kind of fault
within the system.
556: The Lead Claimants’ evidence made it clear that just getting through to
the Helpline was an achievement in itself, and when this was finally
accomplished, the experience would be variable at best, and does not seem to
have come close to resolving any of the disputes. Some operators would assist
with getting Horizon to permit rollover into the next trading period by
suggesting “work arounds”. These “work arounds” did not resolve disputed
items. No particular investigation appears, in the case of any of the six Lead
Claimants, to have been initiated by reporting a dispute to the Helpline. An
item “settled centrally” would be subject to debt recovery processes by the
Post Office regardless of what the particular Lead Claimant did regarding the
Helpline.
558: It is therefore the case that, on the evidence before me, the Helpline did
not operate for the Lead Claimants in the manner that the Post Office
contended for. What was presented to the court by the Post Office in respect of
disputes notified to the Helpline show that, for the most part, initially the SPM
was told they would have to pay the shortfall. Even when persistent, all that
would happen is the sum would be “settled centrally” and after a period of a
few weeks the SPM would be chased for the Post Office for that sum as
though it were a debt. Detailed findings of fact as to this must however wait
for a later trial.
Post Office knowledge of problems
11. What Post Office knew about any problems in Horizon will be important at future
breach trials (including, in particular the trial focused on limitation and associated
issues of breach which is currently scheduled for November 2019). As to that, the
judge (in the draft judgment) made the following findings/ indications:
348: This sheet shows that the Post Office was aware of widespread failures in
cash declarations — on average 1000 branches per week — and that “the
majority of failed declarations occur on a Saturday or Sunday”, that “failure to
make a correct declaration will result in inaccurate planned orders or planned
returns” and also that overnight software drops would make inactive stock
units active. Such points may, or may not, prove to be notable in the ultimate
resolution of these proceedings.
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541: a number of contemporaneous documents internal to the Post Office
show that there was, at least to some degree, an awareness of Horizon
problems within the Post Office itself over a number of years
543: These internal Post Office entries make it clear that, notwithstanding the
tenor of the Post Office evidence before me, behind the scenes there were at
least a number of people within the Post Office who realised that there were
difficulties with the Horizon system.
569, factual matrix point 59: I find that in some instances, there was
discussion internally at the Post Office about the altering of branch transaction
data directly, and also of the Post Office and/or Fujitsu carrying out changes to
Horizon and/or transaction data which could affect branch accounts.
Reasonableness of suspensions/ terminations
12. A large part of the Claimants’ case at the breach trials will be that the process by
which they were suspended/ terminated involved breaches of duty by Post Office. As
to that, the judge (in the draft judgment) made the following findings/ indications:
20: Some sub-postmasters had their contracts with the defendant terminated,
sometimes very abruptly. In Mr Bates’ case, this was done whilst he was
expressly challenging the accuracy of Horizon and he believes this was
expressly done because he was so challenging this. In Mrs Stubbs’ case,
notwithstanding her 27 years’ experience, service and prior record (both as
assistant to her husband, who was originally the sub-postmaster, and as sub-
postmistress herself after he died), she found herself suspended and locked out
of her Post Office.
264: It is not clear if “my investigation” [in the course of an appeal against a
summary termination] included any further information from or investigation
of the situation regarding Camelot, either by Ms Ridge or even Mr Mylchreest.
Given the time scale, this appears unlikely.
403: I do not know why risks to the Post Office’s reputation should be a
relevant factor in such an appeal, or why a SPM’s entitlement to be heard on
appeal would differ from case to case. Also, the Post Office’s reputation might
be significantly affected if it were found to have suspended a SPM on grounds
that were wholly unjustified. Unjustified suspension ought to be a factor in
favour of an appeal succeeding, on any sensible view. The Appeal Managers
are senior Post Office managers who are said to have had training to hear
appeals. The reputation of the Post Office would best be served by appeals that
were justified succeeding, and those that were not failing. It should not have
formed any part of the criteria.
479-480: She also accepted that this would be “pretty important” anyway, and
would have helped her decide whether to believe Mr Abdulla at the time. I
find that he was giving her an account concerning £1092 which she would
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have been more willing to consider was truthful had she had the Excel
spreadsheet at the interview.
The hearing process in respect of Mr Abdulla’s suspension (and eventual
termination) therefore proceeded with incomplete information being provided
to the person tasked with conducting the hearing and making this important
decision, and still less information being given to him by the Post Office.
More and better information was available, and I have already expressed my
view on it dealing with Mr Abdulla’s evidence above.
514: Mr Carpenter was also responsible for the decision to suspend Mrs
Stockdale. Because this happened after the litigation had commenced, I was
most interested in the exact sequence.
515(4): An investigation would only be started — even on Mr Carpenter’s
evidence ~ if afier an invoice had been sent (which did not refer to contractual
obligations for losses, and asserted sums due to the Post Office in somewhat
blunt terms) an SPM did not pay it and said “I can’t make it good, I have a
problem”. I have seen no correspondence to any SPM that explains this, and
this ability does not seem to have been notified to any SPM. It is also directly
contrary to the correspondence sent to the SPM telling them to pay the sum
due. (emphasis in original)
(5) Mr Carpenter was not 100% sure that he did not know Mrs Stockdale was
a claimant when he recommended her suspension. Even though — on his
evidence - he found out on the day, that does not seem to have had any effect
on his recommendation to suspend at all.
723(2): Legal representation is not permitted by the Post Office at interviews
which deal with whether a suspended SPM is to have their engagement
terminated — which effectively ends that part of their livelihood. Regardless of
whether this is justified or not, the specific grounds and proper particulars of
why they face potential termination are not even clearly identified in advance
to the SPM in question. Additionally, information directly relevant to the
grounds (or at least what the Post Office is concerned about, in the absence of
properly identified grounds) is not provided to the SPM either, or at least not
in the case of the Lead Claimants who faced such procedures. Mr Abdulla
tried at his interview to explain the situation regarding TCs and the Lottery.
He was disbelieved. The documents available in the trial show that, whatever
else he had done, he was telling the truth about the existence of these TCs.
Neither he nor the interviewer had this information available to them at the
time.
Harassment/ malicious prosecution
13. The Claimants claim that Post Office breached its obligations by improperly sending
them letters demanding payment, and by threatening and maliciously bringing
proceedings (civil as well as criminal) against them. As to that, the judge (in the draft
judgment) made the following findings/ indications:
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222: There can be no excuse, in my judgment, for an entity such as the Post
Office, to mis-state, in such clearly wrong terms, in letters that threaten legal
action, the extent of the contractual obligation upon a SPMC for losses. The
only reason for doing so, in my judgment, must have been to lead the
recipients to believe that they had absolutely no option but to pay the sums
demanded. It is oppressive behaviour.
327: Yet during this period the Post Office was, acting as it did with Mrs
Stockdale, shutting her branch and stating she was considered to have
committed a criminal offence. It also expressly stated to her that it was taking
into account that she had not contacted the NSBC or asked the Post Office for
assistance. The documents available in this litigation show that this was
simply not true, and she had expressly done both of these things.
462: Post Office’s default position regarding their SPMs. This is that shortfalls
and discrepancies are not caused by the Horizon system, therefore those that
do occur can only be the responsibility of SPMs. This conclusion means that
the Post Office fraud prevention and debt recovery procedures will be used
against SPMs in this position, unless an SPM can show that the shortfall or
discrepancy was not their fault.
516: Shortly after proceedings were issued, the Post Office acted as it did with
Mrs Stockdale, shutting her branch and stating she was considered to have
committed a criminal offence. It also expressly stated to her factually untrue
statements, namely that she had not contacted the NSBC or asked the Post
Office for assistance.
517: even putting it at its best for the Post Office, such conduct towards Mrs
Stockdale during this early stage of the litigation could potentially be
construed as threatening, oppressive, and potentially discouraging to other
potential claimants to become involved in the litigation, whether by accident
or design. I can think of no reason why such an approach was taken
unilaterally by the Post Office in such a way, without the Post Office’s
solicitors giving advance notice to her solicitors, so that a less confrontational
and aggressive path was adopted, given her role as a claimant in the litigation.
However, even once it was done and she was suspended, the Post Office
continued to act in a highly regrettable fashion.
518: here the Post Office was, simply ignoring and “stonewalling” the
desperate attempts to communicate back to them from Mrs Stockdale.
519: Lam troubled by the way that the Post Office has acted in relation to Mrs
Stockdale since April 2016. It must be remembered that, at the very beginning
of these proceedings, there were not so many claimants as there are now. Now,
there are nearly 600. She appeared as one of the first claimants in the first
Schedule of Claimants, Claimant No.77. At the earliest stage, it was not Group
Litigation at all. The Post Office put itself in the position of giving at least the
appearance that this behaviour towards her was directly influenced by her
having issued proceedings.
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523: For the reasons I have expressed above, I have considerable misgivings
about the Post Office’s motivation for the treatment of Mrs Stockdale during
this litigation, and for the treatment itself in terms of refusal to provide
obviously relevant documents.
Para 569, factual matrix point 40: The Defendant in fact sought recovery from
the Claimants for apparent shortfalls. I would also add that on the evidence the
Post Office did this regardless of whether disputes had been reported to the
Helpline or not. This was accepted by all the Post Office witnesses, and
occurred whether the SPM in question was appointed under the SPMC or the
NTC, even though the terms of those contracts were different. It was also done
regardless of any analysis of any causative fault on the part of SPMs. It was
also done when the SPM in question had been told that no action would be
taken in respect of a disputed shortfall.
723: I agree that there is a lot to be desired from the Post Office’s behaviour as
identified in the cases of the Lead Claimants. I shall give four examples only.
1. Even though the Post Office’s own case on the relevant provision in the
SPMC dealing with liability for losses requires negligence or fault on the part
of a SPMC, this was routinely and comprehensively ignored by the Post
Office, who sent letters of demand for disputed sums in express terms as
though the SPM had strict liability for losses. These letters entirely misstated
the legal basis of a SPM’s liability, even where they had been appointed under
the SPMC.
3. Ihave already dealt with what happened to Mrs Stockdale after she was one
of the first claimants in the litigation. Mrs Stubbs’ evidence, which I accept,
was that the Temporary SPM who replaced her was told to destroy all
documentation in the branch that related to her appointment. There can never,
in my judgment, be any sensible rational for such destruction of important
documents, and I cannot understand why the Post Office would wish to
behave in such a way.
4. The approach of the Post Office is to brook no dissent, and it will adopt
whatever measures are necessary to achieve this. An example of this is in the
Modified SPMC, which in Section 15 clause 19 deals with something called
an Investigation Division Interview. This Division includes investigation of
potential criminal offences against the Post Office. One part deals with the
presence at such an interview of a friend of the SPM. The relevant clause
states:
Modified SPMC Section 15 clause 19:
“A friend may only attend and listen to the questions and answers. He must
not interrupt in any way, either by word or signal; if he does interrupt he will
be required to leave at once and the interview will proceed without him.
Whatever is said at the interview is to be treated as in strictest confidence. The
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friend may take notes of the interview but he must keep the notes in the
strictest confidence. The only communication the friend is entitled to make on
behalf of the person who has been questioned will be in the form of a written
"in strictest confidence" statement which may be submitted by the latter, in
support of any official appeal which the person questioned may desire to make
in connection with the methods followed at the enquiry. No other
communication about the interview is allowed (unless made by permission of
the Post Office) as it might constitute a breach of the Official Secrets Acts.”
(emphasis added)
Other parts of Section 15 deals with the requirement for a caution and so on,
but I find it somewhat unusual, and potentially oppressive, that the Post Office
could seek to use the Official Secrets Acts in this way. I do not see how, in a
routine case, these Acts could possibly apply in the way suggested by the Post
Office in this contract.
Horizon Issues
14. The judge also made the following findings relevant to the ongoing Horizon Issues
trial:
569, factual matrix point 34: Claimants were themselves unable to carry out
effective investigations into disputed amounts because of the limitations on
their inability to obtain the necessary information from Horizon.
569, factual matrix points 50-51: The introduction of Horizon limited the
Claimants’ ability to access, identify, obtain and reconcile transaction records.
The introduction of Horizon limited the Claimants’ ability to investigate
apparent shortfalls, particularly as to the underlying cause thereof. Both this,
and 50 immediately preceding it, are obvious on the evidence, and could
readily have been agreed. It cannot sensibly be argued to the contrary, in my
judgment.
569, factual matrix points 54-57: it is clear that Fujitsu were able to obtain
greater information about a particular branch’s transactions than either the
Post Office or the SPM.
824: This point was, perhaps presciently, identified by Mr Bates himself as
long ago as 2000. With his background knowledge in IT systems, and his high
degree of attention to detail, he attempted to get to the root cause of the first
unexplained shortfall in his case, and he realised that the information for him
to do so was simply not available to him, or any SPM in a branch. The
Horizon system did not allow him to do this.
Loss and damage
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15. By way of final example, the judge made findings which will be directly relevant to
Vitriol
Mr Abdulla’s claim for loss and damage (presumably to include distress and lost
employment opportunities):
225: From 2000 he had been a medical sales representative for two different
companies until he became an SPM. He had been successful in this field
267: Mr Abdulla described his whole experience with the Post Office as
traumatic, which, given how he appeared in the witness box, for him it
obviously was.
16. A separate but overlapping category of statements from the judgment involved
apparently unnecessary vitriol directed at Post Office, its witnesses, and the NFSP
(the organisation which represents SPMs). None of these statements appear to be
relevant to disposal of the Common Issues
Suggestions that Post Office has treated SPMs badly
17. The following are examples:
36: There seems to be a culture of secrecy and excessive confidentiality
generally within the Post Office, but particularly focused on Horizon.
117: The full subsequent trial of Mr Bates’ claim will show what, if any,
consideration was given at the Post Office internally not only to this shortfall,
but others (if there were others) in the period December 2000 to March 2002.
If the Post Office did in reality do what Mr Bates suggests they did — namely
bury their heads in the sand, press on regardless, and chase numerous SPMs
for shortfalls and discrepancies caused by the Horizon system — then that
would be behaviour of an extraordinary kind, and given the criminal
implications for some SPMs, may be extraordinarily serious.
123: Therefore, so far as the Post Office is concerned, in each branch where
such shortfalls occurred, either the claimants and/or their assistants must have
at least some, and potentially all, of those characteristics. If it were otherwise,
the Post Office edifice would collapse.
191(2): Even if the SPMC was not included in the envelope (a possible
scenario for any applicant, given the Post Office approach to applicants)...
523: The Post Office appears, at least at times, to conduct itself as though it is
answerable only to itself.
561: These are examples, in my judgment, of a culture of excessive secrecy at
the Post Office about the whole subject matter of this litigation. They are
directly contrary to how the Post Office should be conducting itself. 1 do not
consider that they can be a sensible or rational explanation for any of them.
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724: There is no doubt that the Post Office is in an extraordinarily powerful
position compared to each and every one of its SPMs. It appears to wield that
power with a degree of impunity.
1059: It would be, perhaps, too cynical for even the most hardened Post Office
watcher to suggest that the problems with Horizon led to changes to, and
extension of, the contractual liability of SPMs for losses that were adopted in
the NTC. However, that option cannot be entirely discounted.
1111: The Post Office describes itself on its own website as “the nation’s most
trusted brand” (at http://corporate.postoffice.co.uk/our-heritage). So far as
these claimants, and the subject matter of this Group Litigation, are concerned,
this might be thought to be wholly wishful thinking. Trust is an element of an
obligation of good faith, a concept which I find is to be implied into the
contracts between the Post Office and the SPMs because they are relational
contracts. The Post Office asserts that its brand is trusted by the nation, but the
SPMs who are claimants do not trust it very far, based on their individual and
collective experience of Horizon.
Suggestions that Post Office has misbehaved in this litigation
18. The following are examples:
12: The making of a GLO at all was opposed by the Post Office!
14: Post Office in particular has resisted timely resolution of this Group
Litigation whenever it can, and certainly throughout 2017 and 2018.
14: A good example of this is the fact that for these Common Issues, the Post
Office submitted in its Opening Submissions that I ought to use my discretion
to order that these findings do not have binding effect upon all the other
claimants. I simply cannot accept that such an order would be in the interests
of anyone.”
21: Post Office seemed to want findings on that only if they were in the Post
Office’s favour.>
28: The Post Office may have made these submissions because, on an
objective analysis, it fears objective scrutiny of its behaviour
' This is untrue, as has been pointed out to the Court in respect of a previous draft judgment
(which the Judge refused to correct).
? Post Office actually said the opposite: that the Court should be careful to make findings
which were binding across the Claimant group.
> Untrue. We made clear that he would need to make findings on receipt of documents ete —
but that he could not use any adverse views arising out of their accounting/deficit evidence:
as that was not properly before the Court — there had not been disclosure or full evidence on
it. Therefore it would be unfair to the Claimants. Again: it seems this has been deliberately
skewed.
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30: However, a party (here the Post Office) threatening dire consequences to
national business should their case not be preferred is not helpful, and seemed
to me to be an attempt to put the court in ferrorem.
34: The Post Office seemed to adopt an extraordinarily narrow approach to
relevance, generally along the lines that any evidence that is unfavourable to
the Post Office is not relevant.
123: He [Mr Bates] is persistent and no doubt possesses what might be termed
staying power. There was nothing unreasonable or stubborn in his evidence
before me, and none of the pejorative terms deployed by the Post Office to
describe his evidence are justified, in my judgment. The Post Office must have
decided to attack him because the whole case of the Post Office requires an
assumption or acceptance that the predominant, or only, cause of shortfalls is
fault (or worse) on the part of SPMs.
295: If that replacement took place after April 2016, and if it is because of the
replacement that this recording is not available, then that means that the Post
Office has failed properly to deal with an important record directly relevant to
the litigation during the proceedings themselves.
341(4): There is no reason why Mrs Dar’s husband and father should be more,
or less, infused with excitement and adrenalin than she was, or “cool headed”
if she was not. To suggest this, given the obvious gender difference, is simply
patronising to Mrs Dar. It is also probably patronising to females in business
generally. I would have thought the world has moved on from such
stereotypes.
476: This passage of her [Mrs Ridge’s] evidence appeared to have been
written for her, but again, the point was not put so I make no findings about it.
483: Given by early 2017 this litigation was well underway it may be an
example of internal suppression of material
532: This specific point was not put to him, but it appeared as though his
witness statement had been written by someone else, and not by Mr Trotter.
544: The Post Office appears determined to fight every single possible issue,
and make resolution of this intractable dispute as difficult and expensive as it
can.
560(1): The contents of the e mails are themselves heavily redacted, and the
court will not go behind such an assertion of privilege. However, given that
part of the e mails are not privileged, and have not been redacted, I cannot see
any sensible basis for the redaction of the identity of the sender and
recipients.*
Attacks on Post Office's witnesses
4 Post Office was given no opportunity to comment on this. There was in fact an explanation
—the redaction appeared in the original document, and was mandated by statute.
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19. The following are examples.
20. At para 425 the Judge trenchantly criticises the evidence of Angela Van de Bogerd for
not covering certain topics — when those topics are not within the scope of the trial,
and she confirmed she had been advised as to the scope of what to include in her
witness statement.
21. At para 544 the Judge trenchantly criticises the evidence of Nick Beal, as regards his
evidence of his understanding that the new NTC contract, although a different
contract, did not dramatically alter the relationship between PO and the SPMs. The
Judge strongly implied that this was deliberately false evidence. This is curious, given
that (a) this evidence accorded with the Claimants’ position on construction, and (b) at
para 474, the Judge says that Post Office staff did not pay much attention to the
wording of the contracts.
22. He also broadened the attack, at para 375:
Mr Beal’s way of giving evidence was very much the house Post Office style,
certainly for the more senior of its management personnel who gave evidence.
This was to glide away from pertinent questions, or questions to which the
witness realised a frank answer would not be helpful to the Post Office’s
cause.
Attacks on NFSP
23. The NFSP was not represented, and did not have the opportunity to comment on these
criticisms:
368: It is obvious, in my judgment, that the NFSP is not remotely independent
of the Post Office, nor does it appear to put its members’ interests above its
own separate commercial interests.
577: I find that this shows that the NFSP put its own members’ interests well
below its own, and I also find that the NFSP is not fully independent
589: At some point between this matter being raised in cross-examination with
Mr Beal, and the question of documents evidencing dates being re-visited at
the end of the evidence, someone at the NFPS had specifically altered the
NFPS website. I deal with this at [594] below. What they did not know, when
whoever it was did this, was that counsel for the Lead Claimants had printed
the NFPS website page as at the beginning of the trial. It was therefore clear
that the change had been made, and also clear that it was done during the trial.
I was given no evidence by anyone from the Post Office about why this was
done, and done in terms that suited the Post Office’s case on this point. I find
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this behaviour highly suspicious. It also undermines, yet further, the claim by
the Post Office that the NFPS is independent.
596(1): There is also evidence before the court that the NFPS has, in the past,
put its own interests and the funding of its future above the interests of its
members, in the e mail to which I have referred.
DC QC
GC
SWW
13.3.19
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