POL00023230 - Extracts from the Fraser J Judgement that Demonstrate Bias
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EXTRACTS FROM THE JUDGMENT THAT DEMONSTRATE BIAS
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Statement
10
When shortfalls occurred, the Post Office demanded (and I use
that word advisedly) that each individual sub-postmaster pay the
sums in question
13 &14
Statements as to the approach Post Office took to the litigation
when there is evidence (tbc) that both Post Office and the
Claimants challenged the timetable. There are no adverse
comments about the Claimants’ approach to the litigation.
28
The Post Office may have made these submissions because, on
an objective analysis, it fears objective scrutiny of its behaviour,
or it may have made them for other reasons.
30
However, a party (here the Post Office) threatening dire
consequences to national business should their case not be
preferred is not helpful, and this seemed to me to be an attempt
to put the court in terrorem
36
There seems to be a culture of secrecy and excessive
confidentiality generally within the Post Office, but particularly
focused on Horizon.
42
Other redactions are not quite so easily explained, and in my
judgment demonstrate a culture of secrecy in the Post Office
92
lackadaisical approach to formation of contractual relations to
which I have referred
129
Thirdly, in what I consider to be an outdated attitude in the 21*
century, the Post Office attempts to fix a married lady with
imputed knowledge of detailed terms and conditions simply
because of something attributed to her husband.
138
In my judgment these submissions by the Post Office are bold,
Pay no attention to the actual evidence, and seem to have their
origin in a parallel world.
139
Iam surprised that, if Mrs Stubbs was entitled to any Death in
Service benefits, these were not explained to her,
166
The temporary SPM who replaced her in the immediate term told
her that the Post Office had instructed him to destroy all
paperwork that was in the Branch that related to her appointment.
The reason for that instruction to destroy documents is wholly
unclear, and in my judgment, I cannot conceive of any justifiable
reason to destroy such documents.
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172
None of the Post Office personnel involved at the time with Mrs
Stubbs, who attempted to obtain some input or explanation from
Fujitsu were called as witnesses, so it is not possible to know
what their full involvement was, the extent of their knowledge of
the background matters, how many other SPMs they knew of
may have had similar issues, nor the degree to which they
considered Mrs Stubbs’ good record of over two decades
(including her involvement when her husband was alive) to be
relevant. I make it quite clear that I do not speculate on any of
that.
222
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
231
In yet another example of the Post Office’s shoddy document
management at the time,
The other two pages, 3 of 4 and 4 of 4, are missing. Again, there
is no cogent explanation for this. Ido not understand how half of
a letter can go missing, particularly when it is dated from only
2006
279
the Post Office’s procedures in terms of the SPMC went, in my
judgment, from the sublime to the ridiculous
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 the Post Office has failed properly to deal with an important
record directly relevant to the litigation during the proceedings
themselves.
338
The suggestion that she had not is, in my judgment, an excuse
used by the person who sent the e mail above.
371
Essentially those provisions can only have been drafted to give
the Post Office the maximum control over information, and are,
in my judgment, contrary to transparency.
374
Discussion of ‘core principles’ - a term used by PGQC in cross-
examination (see extract from trascript in para 372.
He also referred to what he called “the core principles”. Mrs Van
Den Bogerd, another highly intelligent and senior witness, said
she was not aware of these. It is not possible to reconcile the
evidence of Mr Beal and Mrs Van Den Bogerd on this point. If the
Post Office does have such core principles written down
somewhere, not all its senior personnel are aware of what they
are, which is rather contrary to the concept of, and their
description as, “core principles”
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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 caus:
sought to give me evidence highly favourable to the Post Office,
which I consider was slanted more towards public relations
consumption rather than factual accuracy. It did not match the
contents of the documents to which I have referred, namely the
GFA, and the change in wording of the terms dealing with liability
for loss by a SPM under the NTC
376 Mr Beal’s attempt to persuade me to the contrary on both points
is regrettable; it is possible that he has persuaded himself. His
evidence came across to me as a public relations exercise.
403 On either approach, I do not know why risks to the Post Office’s
reputation should be a relevant factor ..... (which is what I find Mr
Breeden’s evidence to consist of) ....... 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.
408 As with the other more senior members of the Post Office group
of witnesses, Mr Breeden is articulate, intelligent and also acutely
aware of how much the reputation of the Post Office hinges on
these proceedings. His evidence was presented in terms
obviously designed to put the best possible gloss for the Post
Office on matters, and some of his statements simply did not
stand scrutiny.
one reason why the factual part of the Common Issues trial
became so protracted is because of this approach by the Post
Office generally. Agreement to even obvious points would be
reached, eventually, but getting there took much longer, and a
great deal more effort, than it ever ought to have done. His
evidence was again given through a PR-prism.
414 Indeed, some passages of the Response were, word for word,
exactly the same as her witness statement. She did however
attempt to distance herself from it where she could, by denying
she was “the author” (it was never suggested she was) and
denying that she had signed it (again, it was never suggested she
had).
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415
However, it is a surprise to me that she still held the view that
each case was demonstrably different and influenced by its own
particular facts, or that no themes connected the different cases.
416
Notwithstanding the making of the GLO, Mrs Van Den Bogerd
appears entrenched in her refusal to what I consider to be the
obvious common themes connecting all these claims, and I
simply cannot understand this
However, having such a senior witness with such an entrenched
view as this means that a degree of obstinacy affected the whole
of her evidence. She seemed to be entirely incapable of
accepting any other view of the issues other than her own, which
I consider amounts to an absolute refusal to accept that the
cases of the many hundreds of Claimants were linked
Given she has, for so many years, been involved in defending the
Post Office’s position, she has become, in my judgment,
extraordinarily partisan. Whether this refusal to accept any link
between the different cases is part of a concerted “divide and
rule” approach by the Post Office is not clear.
417
There are two specific matters in which I find that she did not
give me frank evidence, and sought to obfuscate matters, and
mislead me.
418
When this was put to her (a little later, and after she had been
given the opportunity of considering her Horizon Issues witness
statement) she explained that her answer that she was coming to
the matter cold was “a mistake”. I reject that explanation. Her
Horizon witness statement is very detailed, and was signed just a
few days earlier than her cross-examination. Mrs Van Den Bogerd
is a very clever person, in my judgment, and she had detailed
knowledge of the Lottery TCS/Mr Abdulla situation. She sought to
give me the impression that she was being caught unprepared,
and had only come to the matter cold when being asked questions
in the witness box. This was wholly misleading.
425
In a witness statement by her of 145 paragraphs, 44 of those are
devoted to the Post Office as a business. None at all deal with the
very great number of detailed points put to her by Mr Green, based
on internal Post Office documents over the years, which
demonstrate an internal view of unsatisfactory performance at
odds with the Post Office position in the case. This therefore must
mean that Mrs Van Den Bogerd is an extremely poor judge of
relevance. Her judgment also seems to have been uniquely
exercised to paint the Post Office in the most favourable light
possible, regardless of the facts.
441
Mrs Van Den Bogerd would, on some occasions, give clear and
cogent evidence, and one important example is in respect of the
4
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way the Post Office treated sums that had been settled centrally.
However, for the most part, she was extraordinarily conscious of
the need to protect the Post Office’s position in the case generally,
which given her very close involvement in the Horizon problems
with SPMs over the years, effectively meant protecting her own
Position too, which led to a disregard for factual accuracy. I find
that it is necessary to scrutinise everything she said as a witness,
both in her witness statement and in cross-examination, and treat
it with the very greatest of caution in all respects.
451
Overall, I found Mr Dance’s approach to giving his evidence
unhelpful. His written evidence glossed over important points as I
have explained above, and orally Ms Donnelly. would often have to
pursue a particular point in order to obtain a straight answer. I
consider his evidence suffered from an overarching reluctance to
provide accurate evidence, if that may assist the Claimants.
458
Mrs Dickinson is a fraud specialist and it is simply inconceivable
that she was not familiar with the Enron case, at least in outline
terms. I reject her evidence that she did not know about Enron,
which I find incapable of belief. The only reason to claim ignorance,
as she did, was simply to be unhelpful, which is what I find she
was being.
480
Mrs Ridge seemed to me to have a greater awareness of the need
to be fully accurate and helpful to the court than some of the other
Post Office witnesses.
488
He struck me as a careful and diligent person..... This was not
remotely an answer to the question, and is exactly the sort of
argumentative and combative answer that is wholly unhelpful
502
This sort of evidence is, purely and simply, an attempt to put
matters as favourably for the Post Office regardless of the
accuracy of the evidence
520-525
534
Mr Trotter was accused of being evasive in some of his answers.
I do not accept that he was being evasive, but he certainly
seemed extremely nervous about giving evidence before me that
he thought might be unhelpful to the Post Office
544
I have no reason to think that any of the Post Office witnesses
were doing anything other than stating their genuine belief as at
2018 (when the trial occurred) based on their recollection, with
two exceptions. The first is some of Mr Beal’s more extreme
claims that the drafting of the NTC was designed to replicate a
SPM's responsibility for losses under the SPMC, and that it was
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also intended by the Post Office that the contract with the NFSP
would be made public.
I find that [Angela] was simply trying to mislead me. She also
explained a wholesale absence in her witness statement of highly
relevant matters as being due to a restriction on length of that
document, or if not a restriction, a desire to keep her witness
statement short. That answer was simply disingenuous.
The non-inclusion of that evidence within her statement is
explained, in my judgment, by the Post Office’s approach to the
litigation. The Post Office has appeared determined to make this
litigation, and therefore resolution of this intractable dispute, as
difficult and expensive as it can.
545
545The problem with the Post Office witnesses generally is they
have become so entrenched over the years, that they appear
absolutely convinced that there is simply nothing wrong with the
Horizon system at all, and the explanation for all of the many
problems experienced by the different Claimants is either the
dishonesty or wholesale incompetence of the SPMs. This
entrenchment is particularly telling in the Post Office witnesses
who occupy the more senior posts.
very considerable doubts arise about the approach adopted at
the Post Office to its overall control of information
546
Mrs Van den Bogerd is, in my judgment, a particularly stark
example of how a witness had to force their evidence of fact to fit
with a pre-ordained thesis
547
But [the PO witnesses] remain steadfastly committed, in their
collective psyche, to the Post Office party view
They give me the impression that they simply cannot allow
themselves to consider the possibility that the Post Office may be
wrong, as the consequences of doing so are too significant to
contemplate
548
Unless I state to the contrary, I would only accept the evidence of
Mrs Van den Bogerd and Mr Beal in controversial areas of fact in
issue in this Common Issue trial if these are clearly and
uncontrovertibly corroborated by contemporaneous documents.
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. I do not consider that they can be a sensible
or rational explanation for any of them.
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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
I gave the Post Office multiple opportunities to produce a
document from 2015 demonstrating this, and they either could not
or would not do so. Also, the NFSP’s own website was amended
during the trial. 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 NFSP had specifically altered the NFSP 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 NFSP 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 this
behaviour highly suspicious. It also undermines, yet further, the
claim by the Post Office that the NFSP is independent.
594
This was also stated on the same page to be the "November
2018 Edition". That second sentence must have been added to
try and bolster the Post Office’s position (adopted during these
proceedings) regarding transparency
595
but either way, adding a sentence to the website of the NFSP to
bolster the Post Office’s position before me simply adds to my
view (which I reached on the basis of Mr Beal’s cross-
examination and the documents) that the NFSP is not
independent at all.
598
Finally, transparency is not something that seems to mean a
great deal, if anything, to the Post Office, so far as its dealings
with the NFSP is concerned
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