POL00042714
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OPUS 2
INTERNATIONAL
Alan Bates & others v Post Office Limited
Day 13H
May 23, 2019
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May 23, 2019 Alan Bates & others v Post Office Limited Day 13H
1 ‘Thursday, 23 May 2019 1 Post Office to the claimants?
2 (10.30 am) 2. MRDEGARR ROBINSON: My Lord, no. Your Lordship may recall
3 Discussion re housekeeping 3 from the hearing on 11 April, this comes from Dr Worden.
4 MRJUSTICE FRASER: The agenda has slightly changed. I'm 4 Dr Worden, as your Lordship is more than aware, as
5 sorry, Mrde Garr Robinson, if I appear to doa double 5 an independent expert, considers it to be his duty to
6 take; I can’t see Mr Cavender. 6 assist the court, irrespective of his instructions
7 MR DE GARR ROBINSON: My Lord, he is hiding, 7 Pursuant to that duty, which is enshrined in CPR 35.3
8 MRJUSTICE FRASER: I can see Mr Cavender. 8 I think, and also pursuant to his duty provided for in
9 I assume you are here as a result of the emails 9 paragraph 2.5 of the practice direction to CPR 35, he
10 I sent yesterday. 10 conceives it to be his duty, in my submission on proper
11 MR DEGARR ROBINSON: My Lord, yes. 11 grounds, to inform your Lordship that he has had
12 MRJUSTICE FRASER: What I just want to do then, we will 12 material changes of view. It is also his view that
13 start with that first because I imagine that’s the only 13 those views, the views that are set out in the report,
14 point upon which you are going to be present. 14 are helpful to your Lordship in resolving the Horizons
15 MR DEGARR ROBINSON: Yes. 15 issues, andin my submission there is more than
16 MR JUSTICE FRASER: Justin the interests of transparency, 16 an arguable basis for justifying that view. But those
17 at 15.22 yesterday the court received an email direct 17 are his views.
18 from Dr Worden sending me a document which was attached 18 My Lord, given that he owes your Lordship a direct
19 which was called the “Third Expert Report” and three 19 duty to assist you, given that he is under an obligation
20 annexes or appendices thereto. ‘That email was not 20 to inform the parties and the court of a change of view,
21 copied to anybody from the claimants but it was copied 2i as your Lordship will recall I said on 11 April, this
22 to one of the Post Office's solicitors 22 puts my client in a difficult position. None of this
23 As the parties know, sent two emails in pretty 23 has been instigated or requested by my client; it is
24 short succession after receiving that: the first was 24 what Dr Worden conceives it to be his duty to do.
25 making the point that witnesses, even expert witnesses, 25 My Lord, to deal with your Lordship's second point,
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1 are not to directly communicate with the court or send 1 in my respectful submission it is entirely proper for
2 documents directly; and the second is that all 2 an independent expert to communicate directly with the
3 ‘communications to the court have to be copied to the 3 judge. ‘That underpins CPR 35.14, which your Lordship
4 other side, and that email went both to the claimants 4 will also be well aware of, the provision which allows
5 and also to counsel for the Post Office. 5 experts to seek the directions of the court.
6 It then occurred to mea few minutes later that 6 MRJUSTICE FRASER: Well, whether that’s correct or not, in
7 I also ought to make it clear, because the status of 7 the circumstances of this case, the way in which it was
8 that document was unclear to me and I haven't read that 8 done and the time at which it was done -- and I went
9 document, that there may be privilege issues, which is 9 back and reread what you had said to me on 11 April
10 why I issued a direction to the claimants that they 10 two points arise. I’mnotin any way finding or stating
ii should neither read it nor deal with it nor distribute 11 that it was improper for him to have done that.
12 it, pending explanation of the situation this morning. 12 MR DEGARR ROBINSON: I'm grateful for your Lordship to say
13 MR DEGARR ROBINSON: My Lord, yes. 13 that.
14 MR JUSTICE FRASER: Which I imagine is why you are here to 14 MRJUSTICE FRASER: However, itis highly unusual for
15 explain the situation 15 an expert to do that without some sort of prior
16 MR DEGARR ROBINSON: I'm here at your Lordship’s 16 notification that that's happening; and secondly, it was
17 invitation , if 1 may say so 17 not clear onthe face of his email whether the claimants
18 My Lord, can I just briefly address on you the two 18 knew that was happening.
19 points which your Lordship made at the beginning. First 19 MR DE GARR ROBINSON: My Lord, there was prior notification.
20 of all, the communication should have been copied to the 20 MRJUSTICE FRASER: Right.
21 claimants’ solicitors. My Lord, actually what happened 21 MR DEGARR ROBINSON: If! can go back to the chronology,
22 is that Dr Worden sentit to your Lordship’s clerk and 22 I'll deal with this very quickly; I hope we don’t have
23 immediately forwarded it to Freeths. So it is in fact 23 to go into the correspondence, but there is
24 the case that the document was provided immediately. 24 correspondence dealing.
25 MRJUSTICE FRASER: Was that being served on behalf of the 25 On 10 April, this is the day before I addressed
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1 your Lordship, my instructing solicitors wrote a letter 1 provide it to your Lordship next Wednesday, which was
2 to Freeths indicating that Dr Worden had these changes 2 yesterday.
3 of views and he wished to produce a short supplemental 3 MRJUSTICE FRASER: Thar date being chosen for what reason?
4 report. 4 MR DE GARR ROBINSON: That was chosen by Dr Worden, as
5 On the 11th, at the hearing, I then told you about 5 I understand it. Oh, that’s right, I'm so sorry, it was
6 the awkward position my client found itself in, on the 6 because Mr Coyne was going on holiday on that Wednesday.
7 basis of the two provisions I have just adverted ‘7 MRJUSTICE FRASER: As in yesterday?
8 your Lordship to and also the ICI v Merrell case that 8 MR DEGARR ROBINSON: As in yesterday, but he was not on.
9 your Lordship decided. 1 indicated that Dr Worden would 9 holiday on Monday or Tuesday. What Dr Worden was hoping
10 be seeking to collaborate with Mr Coyne with a view to 10 was that they would beable to have a discussion in
11 seeing whether it’s possible to have any agreed or 11 those early two days. When that proved not possible, he
12 disagreed position 12 then sent it to your Lordship.
13 In response to that, your Lordship directed that the 13 MRJUSTICE FRASER: I'm not sure that necessarily explains
14 experts should meet by 3 May, making it clear you 14 why Wednesday was chosen, but let’s leave it at that.
15 weren't giving any directions as to what they should 15 Is there anything else that you would like to
16 talk about. 16 explain?
17 MRJUSTICE FRASER: Well, I was going to order them to meet 17 MR DE GARR ROBINSON: My Lord, if you have any questions
18 anyway. That direction for a meeting was not as 18 you'd like me to
19 a result of the 11th; it wasin order usefully to use 19 MRJUSTICE FRASER: My major concern, Mr de Garr Robinson,
20 the time that had been created in the trial timetable. 20 was that yesterday this arrived with me out of the blue,
21 MR DE GARR ROBINSON: Isee. I wasn’t aware of that 21 not on its face obviously sent to the claimants, and
22 MRJUSTICE FRASER: Bur that doesn’t matter. 22 obviously I didn’t have any of the -
23 MR DE GARR ROBINSON: In any event, your Lordship gave that 23 MR DEGARR ROBINSON: Yes. That was a
24 direction. 24 MRJUSTICE FRASER: ~I hesitate to use the word
25 The same day, after the hearing, Dr Worden provided 25 “backstory”, but any of the detailed background. You
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1 his workings - that’s the raw data -- to Mr Coyne. 1 have explained sufficient to me to make me realise that
2 My Lord, on 16 April there wasa relatively brief 2 there are no concerns in terms of the claimants now
3 discussion between Dr Worden and Mr Coyne about that raw 3 having received a document from the court which they
4 data and Dr Worden’s approach. It’s a without prejudice 4 ought not to have had, because you have explained they
5 discussion; I don't want to say any more than that. 5 had it anyway.
6 MRJUSTICE FRASER: But the short point is there is 6 MR DE GARR ROBINSON: I see. I now understand your second
7 a detailed chronology which leads, I imagine, at some 7 email.
8 point to notification by your solicitors to Freeths that 8 MRJUSTICE FRASER: Ifyou look at it from the court's point
9 another expert's report is coming. Is that right? 9 of view, the court received a quantity of material
10 MR DEGARR ROBINSON: Yes. If] could give you the 10 yesterday unilaterally which it had to provide to the
11 chronology, just to be clear 1. other side in the litigation , but which wasn't clear
12 On 25 April, so this is a monthago,a draft of the 12 either what the status of it was or whether or not the
13 report was provided without prejudice to Mr Coyne, and 13 Post Office even knew that that was being provided to
14 on 29 April I’m instructed the appendices to the draft 14 the court
15 were provided. The purpose of providing those documents 15 MR DE GARR ROBINSON: I understand.
16 wasto facilitate a meeting, but a meeting didn’t happen 16 MRJUSTICE FRASER: ~ which was whatled to the direction
17 by 3 May, or indeed a meeting hasn’t happened at all, 17 3 minutes after the first email telling the claimants
18 although they have had conversations over the telephone. 18 that they were not either to open it or look at it or
19 My Lord, what then happened was that on 16 May 19 anything until the situation had been cleared up.
20 Dr Worden provided that report your Lordship has 20 Now the situation has been cleared up, obviously
21 received to Mr Coyne on an open basis, the final 21 that concern doesn't apply and that direction no longer
22 version, The earlier version wasa draft; this was the 22 applies, in the sense that it had any teeth anyway
23 final version. He provided it to Mr Coyne saying that 23 because they had it already. But I think what I am
24 he hoped that they could meet to discuss it, but 24 going to ask you to do, and you will please just tell me
25 pursuant to his duties to the court, he was intending to 25 how long you would like to do it, is I think a short
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1 witness statement setting out that chronology from the 1 of those documents said to be irrelevant in the summer
2 10 April to now, please, would greatly assist me. 2 of last year.
3 MR DE GARR ROBINSON: Very good, my Lord. 3 So those are the only two points 1 wanted your
4 MRJUSTICE FRASER: I'm not suggesting it is something that 4 Lordship to have.
5 has to be done in the next day or the next couple of 5 MRJUSTICE FRASER: All right. Insofar as you want to
6 days, but I think just a short witness statement from 6 explore, examine or pursue any of those points in
7 whichever of your solicitors is the right person, just 7 cross-examination, we will cross that bridge when we
8 to explain that background that you've just taken me 8 cometo it. I have ordered a witness statement.
9 through, please. 9 Nothing that I say should be taken as coming to
10 MR DEGARR ROBINSON: Very good. My Lord, can I just take 10 a coneluded view on whether or not it was correct or
11 instructions? 11 incorrect for him to have sent his third report direct
12 MRJUSTICE FRASER: Just take instructions as to when you 12 to the court. However, for today’s purposes! think we
13 would like that to be. 13 have goneas far as weneed to.
14 MR DEGARR ROBINSON: My Lord, my instructing solicitors 14 Mr de Garr Robinson, thank you for coming at very
15 suggest the end of next week. 15 short notice, and I imagine you are not going to want to
16 MRJUSTICE FRASER: Which would be think the 31st; is that 16 stay for the rest of the morning.
17 right? Friday the 31st. 17 MR DE GARR ROBINSON: I'm going to want not to stay.
18 MR DEGARR ROBINSON: Yes, it would be. 18 MRJUSTICE FRASER: Allright. Thankyou very much,
19 MR JUSTICE FRASER: Noon on Friday the 31st. 19 Please
20 MR DE GARR ROBINSON: My Lord, yes. 20 MR DEGARR ROBINSON: I'm grateful to your Lordship.
21° MRJUSTICE FRASER: All right. Thank you very much indeed. 21 MRJUSTICE FRASER: So turning to the main business of the
22 Unless there is anything else on that particular 22 day. CanI firstly tell you what! think is on the
23 point or dealing with the experts -- I don’t know if, 23 agenda and remind you that we are going to need a break
24 Mr Green, there’s anything that you would like to make 24 for the shorthand writers at some point.
25 by way of submissions or not. I’ mnot inviting you 25 I have read all of the material that everybody has
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1 expressly to 1 submitted. There are the following issues and
2. MRGREEN: My Lord, there are only two points which I just 2 sub-issues that we have to deal with. There is
3 very briefly make. 3 an application by the Post Office for permission to
4 One is that just in relation to your Lordship's 4 appeal. Thereare costs to be dealt with,
5 observation about correspondence directly with the 5 an application in respect of the necessary costs order
6 court, we don't agree with my learned friend's analysis 6 for the Common Issues trial. It appeared at one point
7 at all. The point is extremely short. 35.14 expressly 7 as though there were also an application for the release
8 carves out an unusual and separate channel, which is for 8 of the security, but as I understand it, that’s no
9 experts to ask the court for directions. 9 longer live business for today. Is that correct?
10 MRJUSTICE FRASER: Yes. 10 MRGREEN: My Lord, yes, not for today; to be reserved
11 MR GREEN: Itdoes not provide or allow experts to do what 11 MRJUSTICE FRASER: Notfor today. It also at one point
12 happened yesterday. 12 appeared to be on today’s agenda the proper costs order
13 MRJUSTICE FRASER: Yes. 13 consequent upon the recusal application, but as
14 MRGREEN: It is just not right. So that is the short point 14 I understand it, that’s now gone away as well. Is that
15 on that. 15 right?
16 The other matter, I don't know to what extent, how 16 MRGREEN: My Lord, yes. The only point on that is that the
17 far back the chronology is going to go, but the short 17 order is for payment ofa fixed sum of £300,000 up to
18 point underpinning our concerns about how this has 18 20 April, but with costs occasioned by the making of the
19 arisen is that Mr Coyne made a request for information 19 application, thereafter to be claimants’ costs reserved
20 in July 2018 for the OCPs, the OCRs and the MSCs, and 20 MRJUSTICE FRASER: Right.
21 the Post Office list has responded, I think it was 21 MR GREEN: So ina sense the immediacy of dealing with it
22 6th August from memory, saying that those were 22 has gone, because the first part of it has been agreed,
23 irrelevant, and the new report arising after what should 23 but how it all arose is not something that your Lordship
24 have been the conclusion of the Horizon Issues trial is 24 can put out of your mind, in a sense, because that might
25 based on an analysis, which we're trying to understand, 25 need to be revisited in due course.
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1 MRYJUSTICE FRASER: But so far as today -- there was 1 areas, and we apply on that basis, but also on the
2 a slight difference in wording, and it might be me 2 alternative basis that this is a case where there are
3 looking at matters in overly technical detail. But in 3 other compelling reasons why permission should be given.
4 Mr Cavender’s skeleton for today, at his paragraphs 3(a) 4 Your Lordship is obviously very familiar with the
5 and 3(b), there was an extent of agreement in relation 5 test and it’s not normal on such applications to go into
6 to the relevant costs order on the recusal application. 6 such huge amounts of detail, particularly when you've
7 Has that now all been swept up into the consent order? 7 had in advance a skeleton and the grounds of appeal.
8 Because the wording wasn’t necessarily exactly the same. 8 I don't intend to do so.
9 MRGREEN: My Lord, yes. So it is now just as in the 9 The first point really, andwe sort of flagged this
10 concept. Wehavea hard copy here signed, if 10 in the skeleton, the underlying criticism we have of the
11 your Lordship wants a hard copy. 11 whole structure of the court's approach to this of
12 MRJUSTICE FRASER: No, Ihave that. ‘That was lodged 12 course starts with good faith and the implication of
13 yesterday. 13 that term and the relational contract debate. Of course
14 MRGREEN: My Lord, yes. 14 you know well the views in my submissions I have put
15 MRJUSTICE FRASER: So apart from the word “draft” in the 15 forward; I’m not going to put them all again.
16 heading, neither party needs me to do anything with that 16 This area is clearly a developing area of law; it is
17 except approve it? 17 clearly a relatively controversial area of law.
18 MRGREEN: My Lord, that’s right. 18 I wouldn't say lawyers fall into two camps, those that
19 MRJUSTICE FRASER: Allright. And you are going to be paid 19 are quite keen on the continental views and good faith
20 £300,000 by 4 o'clock on 7 June, as per paragraph 1, and 20 coming in, and those on the other hand who are much
21 then paragraph 2 is to reserve the claimants’ costs from 21 keener on certainty of law and freedom of contract,
22 that date onwards. 22 although you could identify groups of lawyers in those
23 MRGREEN: My Lord, yes. 23 relative camps.
24 MRJUSTICE FRASER: Allright. I approve that order. 24 What Mr Justice Leggatt, as he then was, did in
25 MRGREEN: I'm most grateful. 25 ‘Yam Seng was to start the firing gun really on debate in
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1 MRJUSTICE FRASER: So that removes both the potential 1 English law. You can see the views of Chitty trying to
2 summary assessment of that order and any argument or 2 make sense of Yam Seng, and making sense of it by
3 disagreement about how the costs of adjourning the 3 saying: well, this can only be honesty really. You can
4 Horizon Issues trial was going to be dealt with. 4 only have good faith, the honesty part of that, which
5 MRGREEN: Precisely. 5 you can imply in this way.
6 MRJUSTICE FRASER: So we are now, therefore, at permission 6 But your Lordship has taken a radically different
7 to appeal and then costs of Common Issues. 7 view. In my submission, there must at least be a real
8 MRGREEN: My Lord, that’s right. 8 prospect of success if your Lordship is wrong about
9 MRJUSTICE FRASER: Right. Unless either of you would like 9 that, or the Court of Appeal might want to have a look
10 me to deal with it in a separate order, I will deal with 10 at it, because it is a striking developmentif it is
at the permission to appeal first 1 right.
12 + MRGREEN: I’m most grateful. 12 To be clear here, this isn’t a point based on the
13 MRJUSTICE FRASER: Mr Cavender. 13 facts of this case. It's not a factual matter, it's
14 Application by MR CAVENDER 14 ‘a question of law, for a couple of reasons. One is
15 MRCAVENDER: My Lord, I'm obliged. You will have seen we 15 because on analysis of the court's judgment, you have in
16 have put in draft grounds of appeal, which are quite 16 fact implied the good faith requirement asa matter of
17 extensive. 17 law, which in my submission is wrong, as opposed to on
18 = MRJUSTICE FRASER: Yes. 18 the basis in Geas(?) that it's implied in fact based on
19 MR CAVENDER: We have also puta skeleton argument in 19 the circumstances of the contract
20 in support of those grounds of appeal. 20 Secondly, and this is really the crucial point and
21 The grounds, as you will see, are grouped really in 21 where your Lordship has gone very much further than
22 three areas: one, appeals on points of law arising out 22 anyone has ever gone, and is truly radical, is the
23 of the Common Issues; secondly, some limited appeals on 23 extent to which you then go on and use that implication
24 fact; and thirdly, an appeal based on procedure. Wesay 24 of good faith to inject itself into each and every major
25 there is a real prospect of success on each of those 25 term in the contract. No one has ever done that before,
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1 there’s no authority or warrant to do it, andin my 1 So the B7 reference, is that the Common Issues trial
2 submission it is wrongand at least there is a real 2 bundle?
3 prospect that it is wrong, 3 MRGREEN: It is the Common Issues trial bundle, my Lord.
4 Let me give you an example. In relation to the 4 (Pause)
5 termination provisions is where it finds its most 5 MRJUSTICE FRASER: I think part of my Opus appears just to
6 obvious grounding. The terms of these contracts. said 6 have crashed. Just bear with me one second. (Pause)
7 that they are terminable on not less than three and six 7 I think, Mr Cavender, what I’m going to do is --
8 months respectively 8 I seem to have lost everything now I will just rise
9 Leaving aside the point that “not less than” is 9 for five minutes, just so as not to put anyone under
10 a well-known, tried and tested commercial formula for 10 undue pressure, I'msorry about this. I would have
11 many years and doesn’t reflect in any way good faith, to 11 brought my hard copy down; Ido have one upstairs. But
12 inject good faith into those provisions, and to do so 12 now that everything seems to have gone down, I will just
13 contrary to their express terms, is truly radical. It 13 rise for five minutes and then I will come back in.
14 has never been done before. It is also contrary to 14 (11.02 am)
15 a decision of the Court of Appealin Ikerler Otomotiv 15 (A short break)
16 where Lord Justice Longmore, with whom 16 (11.08 am)
17 Lord Justice Briggs, as he then was, agreed, said that 17 MRCAVENDER: My Lord, I think you're connected again. If
18 whatever else you think about Yam Seng, it is talking 18 you are, I am not sure what page they have put you on.
19 about the performance of the contract, not its 19 The reference is (B7/29/256}; it should be, hopefully,
20 termination. 20 paragraph 888 of the judgment.
21 MRJUSTICE FRASER: Can you just take me to that part of the 21 MRJUSTICE FRASER: Thank you very much. Which page, sorry,
22 Common Issues judgment. Ihave just been trying to find 22 of the judgment?
23 it on Opus and I can’t. 23 MRCAVENDER: Soitis paragraph 888.
24 MRCAVENDER: The part where you deal with . 24 MRJUSTICE FRASER: Yes, which is page 256.
25 MRJUSTICE FRASER: The part that you are just using as 25 MRCAVENDER: Indeed.
17 19
1 an example. 1 MRJUSTICE FRASER: Thank you very much.
2. MRCAVENDER: The termination provisions, my Lord, start at 2. MRCAVENDER: So that’s where you start dealing with
3 865. It is paragraph 865 and following (B7/29/252} 3 termination.
4 MRJUSTICE FRASER: Yes,I would like to call it up on the 4 MRJUSTICE FRASER: Yes.
5 screen if I could, but 1 can’t seem to find where it is. 5 MR CAVENDER: There are two points. One is the “not less
6 I don’t mean within the judgment, I mean where the 6 than” point, and you deal with that at paragraphs 893
7 judgment 7 and 894,
8 MRCAVENDER: Where the judgment is? I'm sorry, I have 8 Dealing with that first, in my submission that's
9 a hard copy. I don't know if my learned friend can help 9 simply wrong. That is a well-worn formula you find in
10 me or not. 10 a wide range of commercial contracts. Why? To avoid
11 MRGREEN: Itis {B7/29/1}. My Lord, there is one in J, 1 the need where you get notice having to be given on
12 because the hard-copy bundles mirror the Opus bundles, 12 a date certain, people taking points on whether the day
13 and then there is the original one we had in the trial 13 of giving the notice or receiving it are included. So
14 in B. 14 that provision is put in, and of course you give more
15 MRJUSTICE FRASER: I don’t mind where it is. All I can say 15 notice than the three or six months, and that is
16 is I can’t find it on my separate screen. I can see it 16 a standard commercial provision. It is not intended to
17 on the common screen. 17 inject any kind of discretion. So that’s the first
18 MRCAVENDER: The reference in the} bundle is {J3.1/7/352} 18 point.
19 MRGREEN: Does your Lordship have the Horizon Issues 19 ‘The second point, and if you go over to 899
20 environment or the Common Issues? 20 {B7/29/258}
21 MRJUSTICE FRASER: Well,I had both, but one of them has 21 MR JUSTICE FRASER: So you're saying on this application
22 Just disappeared, and now it says “no internet". The 22 that your case is that there was no discretion in
23 other one appears to be -- well, it doesn’t say whether 23 respect of how the notice provision is exercised by the
24 it is Horizon or Common Issues, to be honest, but it 24 Post Office?
25 doesn’t have a J. Just bear with mea minute. (Pause) 25 MRCAVENDER: Correct.
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1 MRJUSTICE FRASER: Is that how you argued it before me at 1 paragraph 2.3.
2 the trial? 2. MRJUSTICE FRASER: Yes.
3. MRCAVENDER: Yes, that the “not less” meant ~ the point 3 MRCAVENDER: What was argued here was based on Yam Seng and
4 your Lordship made is we took it as if it said three 4 good faith. It failed. What was argued was something
5 months'/six months’ notice 5 a little bit similar to what my learned friends tried to
6 MRJUSTICE FRASER: No, that’s not the point I made. I just 6 do, and successfully tried to do, here.
7 asked you if you were saying there was no discretion in 7 ‘The point I should refer your Lordship to is
8 the clause at all in the wayyou argued it before me. 8 paragraph 29 (J7/24/6}. Having quoted Yam Seng, this is
9 MR CAVENDER: Yes. 9 the Court of Appeal saying:
10 MR JUSTICE FRASER: You're saying you argued there was no 10 “Interesting and informative as these comments are
11 discretion? 11 they do not support the terms proposed by Mr Sutcliffe
12 MR CAVENDER: Correct, and we do so now. 12 [and] as ... Charles Hollander QC .. pointed out,
13. MR JUSTICE FRASER: No, I know you say that now. 13 Leggatt J is expressly talking .. (about the]
14 MRCAVENDER: It'sas if it is three months’ or six months’ 14 requtirements in the contract for communication and
15 notice 15 co-operation "in its performance. Requirements for
16 So then you go on to paragraph 899 {B7/29/258), 16 communication and co-operation in relation to
17 where you draw your conclusions. You say: 17 termination would take one into a different realm
18 “I consider that in both instances -- termination 18 altogether *
19 without notice, and termination summarily ~ the Post 19 So that was the response of the Court of Appeal to
20 Office must take the decision in accordance with the 20 the notion that in some way the provision for
21 obligation of good faith ” 21 termination could be visited or altered by Yam Seng or
22 Does your Lordship see that at the top of 8992 22 the good faith, and it’s saying: no, it’s a different
23 MRJUSTICE FRASER: Yes. 23 thing. What Yam Sengis talking about is performance,
24 MRCAVENDER: So you tie the two together. So there are two 24 not termination.
25 points: the “not less than”; and furthermore, good faith 25 So in my submission there must at least be
2 23
1 is injected. That's injected not just to termination on 1 a realistic prospect that the Court of Appeal would want
2 notice, but also on the right to terminate for 2 to look at that, and there is a realistic prospect of
3 repudiatory breach or material breach. 3 success on it
4 MRJUSTICE FRASER: Yes. 4 ‘The same point applies to the repudiatory breach or
5 MRCAVENDER: That has never been done before, in my 5 material breach argument.
6 submission it is wrongin principle, and there is real 6 MRJUSTICE FRASER: Just before you move on to that though,
7 prospect with the Court of Appeal agreeing with that 7 I've just hada look at your closing submissions on
8 Let me take you to the case of Ikerler Otomotiv, 8 Common Issues between paragraphs 447 to 457 (J2/4/160}.
9 which 9 I don’t think you cite this case.
10 MR JUSTICE FRASER: Can you just remind me: what common 10 MRCAVENDER: My Lord, no, itwasn’t cited before you. We
11 issue was termination? It was 15 and 16, wasn't it? 11 came across it subsequently.
12 MR CAVENDER: Termination for cause was 15. 12 MRJUSTICE FRASER: That's germane, isn’t it, whether you
13. MR JUSTICE FRASER: I think termination on notice was 16. 13 should get permission to appeal on a point which wasn't
14 MRCAVENDER: Correct. 14 argued before me?
15 Can I refer your Lordship to the authorities bundle 15 MRCAVENDER: My Lord, we are not sure it is. The point was
16 number 2, tab 24 (J7/24/1}, the decision of the 16 argued before you; we just hadn't found this authority
17 Court of Appealin Hkerler Otomotiv. 17 at that point. The point that supports our point is
18 MRJUSTICE FRASER: Tab 24? 18 that good faith does not have anything to say about
19 MR CAVENDER: Tab 24, my Lord, yes. 19 termination and "not less than” does not invoke any kind
20 ‘This was a case involving the termination of the 20 of discretion
21 distribution agreement. The first thing you will 21 MRJUSTICE FRASER: All right. If you say the authority
22 notice, just by way of passing, if you go to paragraph 4 22 wasn't cited before me, I think we're agreed about that
23 of that (J7/24/2}, you will see the terms of the 23 If you have a look at 447 to 457 {J2/4/160}, I’m not
24 agreement are not dissimilar to our one: they use the 24 sure that the point was argued, but it might be that you
25 words “at least six months’ prior written notice” in 25 say it was
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1 But regardless of that, you're saying that error of 1 contract and whether to imply a term of good faith,
2 law on this point, as set out in your grounds, which 2 you're looking at the express terms at that stage. And
3 shows there is a reasonable prospect that the 3 the express terms are three months’ notice or six
4 Court of Appeal will overturn it 4 months’ notice. Whether parties expect or do not expect
5 MRCAVENDER: There is areal prospect of that, my Lord. 5 to exercise those rights doesn’t turn what is not
6 MRJUSTICE FRASER: Yes, all right. 6 a long-term contract into a long-term contract.
7 MR CAVENDER: Also my learned friend has shown no authority 7 ‘The third point we make there is about the agreed
8 that good faith has ever been used to curtail rights of, 8 implied terms. Again, my learned friend, in his
9 termination, whether express rights or for termination 9 skeleton for today, seeks to move away from those. In
10 on notice or termination for repudiatory breach. ‘The 10 my submission this is a very serious point and really
11 same point applies there. 11 wasn't grappled with by the court at all really, apart
12 What your Lordship has said is: you can't accept 12 froma single paragraph.
13 a repudiatory breach unless you do so in good faith, nor 13 But these implied terms of “necessary co-operation”
14 can you do so where you're in breach in relation to the 14 and Stirling v Maitland, we have submitted and do
15 matters for which you are seeking to accept repudiatory 15 submit, have real power and force, are taken alongside
16 breach. Good faith has never been used in that way 16 the express terms and they need to have meaning and
17 before, to alter what is normally an objective standard, 17 effect given to them. Until they have meaning and
18 namely either side can accept a repudiatory breach to 18 effect given to them, one doesn't know whether or not
19 some degree of subjectivity. No authority has been 19 other terms are necessary.
20 shown to you for that proposition, and in my submission 20 So we say there is a reasonable prospect on that
21 there must bea real prospect 21 that the Court of Appeal will take a different view
22 MRJUSTICE FRASER: Where in the judgment, please, can you 22 about the way the court dealt with those implied terms,
23 show me that I have said you can’t accept repudiatory 23 which was effectively that they had no real effect and
24 breach unless you do so in good faith? 24 was essentially a pleading point in the case, when in
25 MR CAVENDER: Give me one moment, my Lord. 25 fact it was the cornerstone of the Post Office's case
25 27
1 MRJUSTICE FRASER: Yes. 1 that they were akin to express terms once they had been
2. MRCAVENDER: Paragraph 899 {B7/29/258) 2 accepted by both sides
3 *.. in both instances -- termination without 3 The other major feature here is your Lordship
4 notice, and termination summarily ..” 4 implied 17 implied terms or incidents based on the
5 Which it’s talking about in context, termination 5 imposition of a good faith term. In my submission one
6 because of repudiatory breach: 6 can only do that to the extent that the terms that you
7 ".. must [be] take[n] in accordance with the 7 imply or the instants you apply are parasitic upon and
8 obligation of good faith ” 8 have good faith at their core, namely that they can be
9 MRJUSTICE FRASER: How does that say: accepting 9 breached, and only breached, in the event of bad faith .
10 a repudiatory breach? 10 So they are true sons or daughters of the good faith
11.) MRCAVENDER: Because that is what termination summarily 11 term,
12 involves. There’s no other way you can terminate 12 When you look at the implied terms your Lordship
13 summarily, my Lord. You can terminate a contract 13 implied, the 17, virtually none of them have that
14 summarily because one side is in repudiatory breach or 14 characteristic. They all represent binary, one-way,
15 termination on notice. That's what this portion of the 15 free-standing obligations that can be breached in bad
16 judgmentis dealing with. Again, I say we havea real 16 faith or in good faith
17 prospect on that point. 17 ‘That is contrary, in my submission, to Yam Seng,
18 So, my Lord, going back to my skeleton argument 18 contrary to what Mr Justice Leggatt did in that case
19 I may. I’m dealing here with common issue 1 largely, at 19 You remember I took you through very carefully the two
20 paragraph 9 {J6/2/3}. Ourcase wasand is that the 20 terms he implied in that case and how he rejected
21 relational contract idea is useful as assistance in 21 Mr Salter QC’s drafting of the terms in that case, and
22 identifying types of contracts 22 he did so because the terms that counsel had put forward
23 The other complaint we make and made is that at 23 could be breached without bad faith , without knowledge.
24 (ii), the “long term” point. OF course at this stage, 24 What Mr Justice Leggatt said: no, it is essential that
25 before you're deciding whether it’s a relational 25 the terms has at its heart an obligation to act in good
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1 faith in the relevant particular. That unfortunately 1 submission there's no rational reason to treat the two
2 has not, in this case, been done in relation to these 17 2 clauses in relation to that sameloss differently , and
3 terms 3 again that must give a real prospect of success on that
4 We deal with this point, my Lord, at paragraph 14 4 point as well
5 and following of the skeleton argument {J6/2/5}. 5 We have dealt with common issue 16, going to the
6 So good faith is very much atthe heart of all those 6 skeleton at 33 {J6/2/10}, termination on notice; common
7 submissions, of all those points on both issue 1 and 7 issue 15, termination for cause {J6/2/11}.
8 common issue 2. In my submission, if the court is going 8 ‘Then we have suspension {6/2/13}; onerous and
9 to give permission, they should give permission on both 9 unusual terms (J6/2/16}. We do seek permission to
10 issues, not try and cherrypick and say, "Well, this one, 10 appeal the holding you made in relation to the Bates
11 not that one”, because when it gets to the Court of 11 type of contract, and that’s paragraph 54 of the
12 Appeal they would be, in my submission, helped by having 12 skeleton.
13 the whole of those issues before them so they could form 13 We outlined at paragraph 54 the two elements of the
14 their own view as to the appropriate treatment. 14 conditions of appointment and the declaration, which we
15 Going to my skeleton, I don’t want to spend too long 15 say in a case such as Mr Bates would result in
16 going through all of those. You will see common 16 incorporation by reference. We say that applies whether
17 issues -- this is paragraph 19 of the skeleton [J6/2/7}, 17 or not the documents are attached or not. It’s
18 the “agents"/branch trading statement point and the 18 incorporated by reference, identifies the existence of
19 agency point. 19 some standard-term document and that it is incorporated.
20 The thing about that, we say at paragraph 20, is 20 ‘Then we have common issues 7, 19 and 20, Unfair
21 effectively your holding amounted to: the only reason 21 Contract Terms Act, at paragraph 57 {J6/2/18};
22 the express term in the contract said they were “agents” 22 responsibility to train assistants, 23 {J6/2/19}.
23 was to distinguish them from employees. The trouble 23 We then have the question of inadmissible evidence,
24 with that is it doesn’t give any purpose or content to 24 what we say as a matter of law, evidence of
25 the express appointments “agents”, and it doesn’t 25 post-contractual matters either expressly or implicitly
29 31
1 begin to explain on what basis, therefore, postmasters 1 being taken into account on points of construction. We
2 hold stock and cash on behalf of the Post Office or 2 summarise that at paragraphs 67 and following {J6/2/20).
3 explain the basis on which they contract with members of 3 ‘That includes, at paragraph 68, the matters you
4 the public on behalf of Post Office and they are 4 expressly as part of the relevant factual matrix to
5 fiduciaries 5 construction incorporated, and we set them out at
6 So a finding that says, "Well, the express 6 paragraph 68, the various paragraphs.
7 appointment as ‘agent’ merely distinguishes them from ‘7 MRJUSTICE FRASER: Where are we now, sorry?
8 employees", doesn't give any meaning or effect to the 8 MR CAVENDER: Paragraph 68 of the skeleton, my Lord
9 reality of what everyone accepts the postmasters were in 9 {J6/2/20}. It cross-refers to paragraph 569 of the
10 fact doing. So, again we say there must bea real 10 Common Issues judgment {B7/29/178} and the subparagraphs
11 prospect of success, the Court of Appeal wanting to look 11 of that paragraph. It’s paragraph 68 of the skeleton,
12 at that 12 my Lord.
13 Then if we move on inthe skeleton, paragraph 25 13 MRJUSTICE FRASER: No, Ihave that. I'mlooking in the
14 (J6/2/8}, section 12, clause 12, this is the whole 14 grounds.
15 burden of proof point. 15 MRCAVENDER: Where that point is raised in the grounds?
16 Paragraph 30 of the skeleton {J6/2/9}, your 16 MRJUSTICE FRASER: Yes, I'm trying to follow your
17 understanding is at paragraphs 669 to 675 of the 17 submissions through by reference to the grounds.
18 judgment (B7/29/209}, where you understood the Post 18 MRCAVENDER: Oh, Isee.
19 Office's case to be that postmasters would be liable for 19 MRJUSTICE FRASER: As well as the skeleton.
20 losses or deficiencies caused by a bug, when in fact 20 MRCAVENDER: This pointin relation to factual matrix is
21 that wasn't our case. 21 paragraph 23 of the grounds {J6/1/7}.
22 Indeed, when you were dealing with the same point 22 MRJUSTICE FRASER: But that’s in your introductory section,
23 we deal with this at paragraph 31-- in relation to the 23 isn't it? I thought it was parts C, D and E that were
24 NTCin clause 4.1, you seem to accept the point that 24 your actual grounds,
25 such losses wouldn't come within the clause. So in my 25 MRCAVENDER: My Lord, no. Common issue 1 is "Relational
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1 contract”, if you are looking at the grounds now. 1 MRJUSTICE FRASER: We are, right.
2. MRJUSTICE FRASER: Yes. 2 MRCAVENDER: The skeleton was meant to be a more cursory
3. MRCAVENDER: What happens at the end of the first ground, 3 run-through of those points. In the skeleton I was at
4 paragraph 23 {J6/1/7] is the factual matrix point is 4 paragraph 67 {J6/2/20} and was dealing with reliance on
5 taken, and then where it applies, it is repeated each 5 inadmissible evidence. I have pointed to you in the
6 time in each ground. 6 grounds where that comes in first of all, which is
7 MRJUSTICE FRASER: I did understand that. 7 paragraph 23 {J6/1/7). This is on admissibility. That
8 MRCAVENDER: So that's the point: that it has been or looks 8 is an error in law, we say.
9 as if it’s been taken into account in terms of 9 So those are the grounds of appeal on law. Then if,
10 interpretation or factual matrix, 10 we look at the skeleton, paragraph 73 {6/2/24},
11 Then the separate point in point D (J6/1/35}, 11 "Grounds of Appeal -- Error in fact”.
12 your Lordship points out quite rightly, is an additional 12 MRJUSTICE FRASER: How many of those are there?
13 point that that information has been introduced into the 13 MRCAVENDER: Ifwe go to the -- do you have the grounds of
14 trial process unfairly. That's a distinct and separate 14 appeal there?
15 point. 15 MRJUSTICE FRASER: Ido.
16 MRJUSTICE FRASER: This is part D, your procedural 16 MRCAVENDER: The errors of fact start at paragraph 147
17 unfairness grounds, isn’t it, that second point that you 17 {6/1/42}. The first is about Mr Bates’ receipt of the
18 made? 18 contract and then there are a number of findings about
19 MR CAVENDER: When you say "it", I was referring to the 19 the Post Office's behaviour and comments on its
20 admissibility point when we were having this debate. 20 witnesses.
21° MRJUSTICE FRASER: All right. Just to help me let’s 21 MRJUSTICE FRASER: So are there two or are there eight
22 slightly rewind it just a little bit 22 altogether, in terms of separate grounds?
23 How many total grounds do you have altogether that 23 MRCAVENDER: I think there are eight. There is the Bates
24 are errors of law, separate grounds? 24 one, and then there is (a) to (g) under the second head.
25 MR CAVENDER: They are set out in the grounds, my Lord, 25 MRJUSTICE FRASER: Right.
33 35
1 starting at 14 {J6/1/4). 1 MRCAVENDER: So there are eight.
2. MRJUSTICE FRASER: I know they are, Mr Cavender, but they 2 MRJUSTICE FRASER: There are eight, all right
3 are not numbered. I am just trying to make sureI don't 3 MRCAVENDER: You will see them set out in the grounds of
4 miss any. How many are there altogether? Are they the 4 appeal and I wasn't intending to go through them.
5 different ones at paragraph 14? 5 There are no appeals on the facts, the main facts he
6 MRCAVENDER: My Lord, yes. 6 found, about who said what to who in the interviews and
‘7 MRJUSTICE FRASER: Each of those is a separate ground? 7 things of that kind.
8 MRCAVENDER: They are separate common issues, as you can 8 We then have ground D, procedural unfairness. This
9 see, and within them there are obviously -- it depends 9 links with the inadmissibility point because it's the
10 what you call a “ground”, But there are separate 10 same material,
11 grounds of appeal dealing each of those issues listed at 11 MRJUSTICE FRASER: How many different grounds are there
12 paragraph 14. 12 under procedural unfairness?
13 MRJUSTICE FRASER: Right. So how many separate grounds of 13 MRCAVENDER: That starts at paragraph 128 of the grounds
14 appeal are there on errors of law? Because I had 14 {J6/1/35}.
15 thought there were 12, because I counted through, but 15 MRJUSTICE FRASER: It does.
16 I'mnot sure that I necessarily have them all, which is 16 MRCAVENDER: It depends on bit on what you call a “ground”,
17 why I'm asking you how many different grounds there are 17 because there are obviously subgrounds within them.
18 which are said to be errors of law. 18 MRJUSTICE FRASER: Let's put it this way: you are advancing
19 MR CAVENDER: We can count them up, my Lord. 19 in your grounds of appeal grounds that are said to be
20 MRJUSTICE FRASER: Ifyou can tell _me how many there are. 20 correctly categorised as procedural unfairness. How
21 MRCAVENDER: That can be done, my Lord. 21 many different grounds are there? I had understood
22 MRJUSTICE FRASER: AsT understand it, we are still within 22 there to be possibly three, but I might be wrong.
23 part C of your grounds of appeal, dealing with errors of 23 MRCAVENDER: My Lord, yes, there are three broad grounds.
24 law? 24 MRJUSTICE FRASER: Are there three?
25 MRCAVENDER: Weare, my Lord, yes. 25 MRCAVENDER: Ifyou want to take grounds at a high level ,
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1 there are three separate grounds with subgrounds within 1 parties. Suspension and termination, how they were in
2 them, is probably the right way to look at it. 2 fact operated, those two mechanisms.
3 MRJUSTICE FRASER: All right. Let's deal with those 3 MRJUSTICE FRASER: Yes.thank you very much.
4 separately, if we may, because I’m interested on what 4 MRCAVENDER: So that’s the first head. Connected to it is
5 the procedural unfairness to said to be. What was the 5 the second, which is findings on post-contractual and/or
6 procedural unfairness in respect of the first of those 6 irrelevant issues. Those are set out at 137(a) to (g)
7 three grounds? 7 (96/1/38)
8 MRCAVENDER: Itisas it’s set out in the grounds there: 8 The point about this of course is that the court is
9 that the Common Issues trial that the Post Office 9 not in the business of making irrelevant findings along
10 prepared for and the court gave orders for was limited 10 the way. It makes findings and decides what the matrix
11 to the effectively preliminary issues on the meaning of 11 of contracts is because it is relevant to the matters it
12 the NTC and the SPMC and deciding the scope and extent 12 is engaged with; at least one can infer that
13 of the agency relationship 13 So what one infers from this is that there are these
14 Disclosure and evidence was given on that basis if 14 findings or comments and they are being made as part of
15 you look at ground 132 (J6/1/36}. There were contested 15 the trial process, as relevant to it, and therefore
16 disclosure applications decided expressly on that basis 16 necessarily, given the nature of the exercise in
17 things like helpline, training, things of that kind. 17 a preliminary issues trial, as part and parcel of it.
18 Disclosure was not given on them and in fact was refused 18 ‘That's why this connects back to the error of law about
19 by your Lordship on the basis that this was a common 19 taking into account irrelevant evidence, which brings me
20 issues trial that essentially was a preliminary issues 20 on neatly to the next ground, which is just that. So
21 trial 21 although these are three grounds, they are obviously
22 To therefore go on in such circumstances and make 22 intimately connected.
23 comments and/or findings relating to those matters 23 You will see the same points at 143 {J6/1/39},
24 MRJUSTICE FRASER: But that’s the effect of the unfairness. 24 extracted from the matrix your Lordship decided was part
25 1 want to know what you say the procedural unfairness 25 of the matrix of the trial, not just along the way but
37 39
1 was. What was the unfairness in the procedure? 1 ona contested matter. Where there was a contest about
2) MRCAVENDER: To have a trial that went wider than that 2 ‘what matrix your Lordship could take into account, you
3 which was ordered and that which the parties reasonably 3 ruled that these matters were relevant factual matrix.
4 expected was going to take place; and moreover, to do so 4 We say that is an error of law, or at least there is
5 in circumstances where there hadn't been disclosure in 5 a real prospect that it is.
6 relation to the matters in relation to the extended 6 My Lord, those are the grounds of appeal and all
7 trial, nor had the Post Office put forward witness 7 I wish to say about them.
8 evidence on it because they weren't expecting it 8 So weask for permission on two bases. One is that
9 MRJUSTICE FRASER: So what matters did the Post Office not 9 there is a real prospect, and that in reality you ought
10 put forward witness evidence on which they otherwise 10 to look at this ona high-level basis: that if you think
a1 would have done absent the alleged procedural 11 there is a real prospect on the good faith elements,
12 unfairness? 12 relational contract elements, that infects or applies to
13 MRCAVENDER: They would have given disclosure 13 large parts of your findings. In my submission the
14 MRJUSTICE FRASER: No, I'm asking about the evidence. You 14 right thing to do in such circumstances is to give
15 just made a submission that said the Post Office hadn't 15 permission across the board.
16 put forward witness evidence on matters because they 16 Moreover, we ask for permission on the separate,
17 ‘were not expecting it. So what were those matters? 17 distinet ground that here there are other compelling
18 = MR CAVENDER: Training, 18 reasons. Why? Because we're dealing here with
19 MRJUSTICE FRASER: Yes, all right 19 11,000-odd contracts, not just the 500-odd claimants in
20 MRCAVENDER: Helpline. 20 this litigation ; we're talking about a huge amount of
21. MRJUSTICE FRASER: Yes. 21 money inissue; we're talking about the running and how
22 MR CAVENDER: The accounting relationship 22 a public service is run, not just in the past but in the
23 MRJUSTICE FRASER: Yes. 23 future, in which there is a real public interest. So in
24 MRCAVENDER: -- how it worked in fact. How TCs were dealt 24 my submission, for those reasons as well, this is a case
25 with. The intimate accounting relationship between the 25 where the court should give permission on that
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1 alternative ground. 1 MRJUSTICE FRASER: Next item on the agenda?
2 Moreover, if your Lordship accepts my point that, at 2 Application by MR GREEN
3 least arguably, what your Lordship has done is to move 3. MRGREEN: My Lord, I think it is me: the costs of the
4 the common law quite dramatically on good faith in 4 resolution of Common Issues.
5 a particular direction, that also is another compelling 5 MRJUSTICE FRASER: Yes.
6 reason why that view, my submission about that, should 6 MRGREEN: Your Lordship has mentioned that you've had our
7 be tested in the Court of Appeal. 7 written cost submissions and our skeleton arguments
8 So, my Lord, unless you have any questions, those 8 MRJUSTICE FRASER: I think there were two rounds, weren't
9 are my submissions. 9 there?
10 MRJUSTICE FRASER: The only question is one which think 10 MRGREEN: Exactly. Against the background of that, and the
11 you or your juniors are endeavouring to answer: I would 11 fact that much of the content of whatarises in relation
12 like to know how many different grounds of appeal there 12 to this application and the issues arising in it has
13 are on law, please. 13 been traversed numerous times now, in terms of what
14 MR CAVENDER: I'm obliged. 1 will 14 your Lordship decided in the Common Issues Judgment on
15 MRJUSTICE FRASER: Is someone going to give me the number? 15 the various issues and so forth, I’m going to try and
16 MRCAVENDER: My Lord, yes. Can I come back to you in 16 slim down what say. But there are a number of points
17 a moment about thar? 17 which I need to make and they come under four headings.
18 MRJUSTICE FRASER: Youcan, yes. I would like to know 18 ‘The fact that there should be an order for costs in
19 before I decide whether I’m going to give you permission 19 the claimants’ favour is number 1 and can be shortly
20 to appeal or not. 20 disposed of. The contrary is unarguable and it is
21 MR CAVENDER: No, of course. 21 implicitly recognised by the defendant, by the Post
22 MRJUSTICE FRASER: What Iwill do is 1 will rise for five 22 Office, in its skeleton argument at paragraph 21 on
23 minutes then, 1 will rise for ten minutes, because 23 1/4/7}
24 yesterday I received an email from the transcribers 24 MRCAVENDER: My Lord, Ihate to interrupt my friend, but
25 asking if they could always have a ten-minute break 25 that isn’t the case. In my submission it is probably
al 43
1 rather than a five-minute break 1 best to deal with that point first because if we're
2 So I will come back in at 11.50 and then, 2 right about reserving costs, then the other matters
3 Mr Cavender, I would just like you to tell me how many 3 don't arise. If we're wrong about that, then the
4 different grounds of appeal you have saying that there 4 question of basis of assessment, timing of assessment,
5 are errors of law. 5 interim payment arise. But if we're right and the costs
6 MRCAVENDER: Ofcourse. 6 should be reserved, those points don't arise, subject to
7 MRGREEN: My Lord, canI just ask if your Lordship is 7 your Lordship. But I just make that observation.
8 anticipating a very brief response from me? 8 MR JUSTICE FRASER: As I understand your position,
9 MRJUSTICE FRASER: No, I'm not going to be calling on you. 9 Mr Cavender -- do correct me if I’m wrong-- your
10 MRGREEN: I'm most grateful 10 primary position is costs should be reserved.
11 (11.44 am) 11 MRCAVENDER: Correct.
12 (A short break) 12 MRJUSTICE FRASER: If I'm against you on that and I decide
13° (11.54 am) 13 to deal with the Common Issues costs today, you accept
14 MRCAVENDER: The answer to the question is 37, my Lord. 14 I think that there has been broad success, but taking
15 MRJUSTICE FRASER: 37 on law. So it’s 37 on law, 3 on 15 into account the other factors you're suggesting a 30%
16 procedural unfairness and 8 on fact? 16 reduction?
17 MR CAVENDER: My Lord, yes. On the law ones obviously it is 17 MR CAVENDER: That's absolutely right.
18 very difficult because often the point is repeated in 18 MRGREEN: My Lord, will turn therefore to the making of
19 relation to, say, "onerous", “unusual”, and there are 19 the order now, which is going to be point 2.
20 lots of different terms. So it depends how you~ but 20 MRJUSTICE FRASER: What was your point 1, I'm sorry?
21 that’s a fair review of that 21 MR GREEN: Point 1 was that if an order were to be made
22 MRJUSTICE FRASER: Thank you very much. 22 MRJUSTICE FRASER: There has to be an order for costs in
23° (11.54 am) 23 one way or another, even if it's just costs reserved
24 (Ruling awaiting the judge's approval) 24 MRGREEN: Precisely. Let metake it in a different order:
25 (12.04 pm) 25 shall I deal with whether your Lordship should make
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1 a costs order now, rather than reserve it? 1 that the costs should be reserved
2 MRJUSTICE FRASER: No, no. This isn’t mere technicalities . 2 MRJUSTICE FRASER: I understand. You're relying on this
3 If I wereto order costs reserved, that would be making 3 letter though, it seems to me-- and if I’m wrong, do
4 a costs order. 4 tell me-- as showing that there was at least, at some
5 MRGREEN: Indeed, my Lord. I am conflating the two. 5 stage in 2018, a realisation on the part of those
6 MRJUSTICE FRASER: What you mean is: deal with the costs 6 advising the Post Office that there might be interim
7 now, rather than reserve them. 7 costs orders?
8 MRGREEN: My Lord, yes, exactly. 8 MRGREEN: They were positively asserting that as a real
9 MRJUSTICE FRASER: I understand that. 9 possibility and wanting our deed of their cost to be
10 MRGREEN: There are essentially 10 altered, so that if they did get such an order in their
11. MRJUSTICE FRASER: You are saying: do it now? 11 favour, it would be recoverable.
12 MRGREEN: Precisely. 12 MRJUSTICE FRASER: Understood. That's effectively
13. MR JUSTICE FRASER: Ihave that point 13 a separate stand-alone point
14 MRGREEN: There's one document in the bundle on Opus at 14 MRGREEN: That's stand-alone point 1
15 (J5.2/1/1}, which is the letter of 14 September 2018 15 Stand-alone point 2 is: the Post Office's
16 from Post Office solicitors to my instructing solicitors 16 submissions appear to overlook the fact that in the
17 and that is the letter to which the claimants’ skeleton 17 bundle at (B3/1/62}, in the amended particulars of
18 at paragraph 10 on (J5.2/1/5} refers 18 claim, the very first item of final relief sought by the
19 The context of it, my Lord, was this. Your Lordship 19 claimants was a declaration in relation to the legal
20 will remember that there wasa difference in the budgets 20 relationship between them and the Post Office.
21 and both for the purposes of assessing security and for 21 MRJUSTICE FRASER: Are we going to call that up on the
22 the purpose of cost budgeting, it was said by the 22 sereen?
23 claimants to be important that the stages of the 23 MRGREEN: Thatis hopefully coming up. It is (B3/1/62}.
24 litigation were identified and worked out. This is, in 24 There weare.
25 that context, a reference to the litigation being 25 MRJUSTICE FRASER: Yes. So it is a separate stand-alone
45 47
1 conducted in stages with the real possibility of interim 1 MRGREEN: Free-standing final relief sought, which in
2 costs awards 2 substance has been achieved for the claimants.
3. MRJUSTICE FRASER: Where are you looking? 3 MRJUSTICE FRASER: Understood.
4 MRGREEN: The quote is set out in paragraph 10 of our 4 MRGREEN: The point about that, my Lord, is that that would
5 skeleton argument {J1/3/5} and it is at paragraph 4(a) 5 have had to have been determined whoever was in the
6 {J5.2/1/1}. If your Lordship looks just below, it’s 6 group. It's a free-standing point; it doesn't depend on
7 paragraph 4. It’s in relation to the QBE deed for 7 who is in the group action at all. And there's no
8 security. The complaint was that the deed should 8 recognition of that at all. That's the second point.
9 provide 9 ‘The third point is a point I will just makein one
10 ©MRJUSTICE FRASER: I wonder if we could go back, please. 10 line and come back to for its significance in the
11. MRGREEN: Just go back to the letter, if wecan. You were 11 authorities , which is that these were absolutely central
12 on the right spot 12 generic issues, properly called “common issues” by
13 The complaint was that it was unsatisfactory from 13 your Lordship. This is not a peripheral skirmish in
14 the Post Office's perspective as at 14 September 2018 14 MRJUSTICE FRASER: I don't think anyone is suggesting it
15 for the deed being provided by way of security only to 15 wasa peripheral skirmish, are they?
16 provide for the resolution of costs “following the 16 MRGREEN: I'm most grateful
17 conclusion of the High Court Number XXXX”. The reason 17 MRJUSTICE FRASER: I don’t know, and I’ m not obviously
18 they give at 4(a), second line, right-hand side: 18 speaking for how the Post Office might put it. But at
19 "This litigation is being conducted in stages with 19 whatever point in this litigation , these issues were
20 the real possibility of interim costs awards” 20 going to have to be dealt with.
21 So before they'd lost, this not only would be 21 + MRGREEN: Precisely, and they were foreshadowed actually in
22 potentially right in principle for the court to make 22 the pre-action correspondence from July 2016 onwards,
23 such an order, but it wasa direct concern. Then what 23 MRJUSTICE FRASER: Allright. I have that point.
24 happensis they lose the Common Issues trial and in 24 MRGREEN: The Post Office’s submissions at paragraphs 5 to
25 correspondence then say their position is going to be 25 20, on [J1/2/3} to {J1/2/6} of the defendant's skeleton
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1 argument, begin on {J1/2/3} of the skeleton argument 1. MRGREEN: -- and it goes down to:
2 rather than the outline submissions. Paragraph 6 says 2 “. whether justice to the defendant requires him
3 “The authorities demonstrate that it may be 3 to postpone any decision on costs until the final
4 appropriate to reserve the costs of a trial of 4 outcome of the action is known”
5 preliminary issues, where the outcome ... does not 5 MRJUSTICE FRASER: Yes.
6 determine ultimate success in the litigation or where, 6 MRGREEN: Pausing there, your Lordship will already have in
7 even though one party may be said to have succeeded in 7 mind these are unitary claims that are relied on by the
8 that trial , subsequent events could be relevant to the 8 Post Office. That's a side point which! will come back
9 incidence of the costs of the earlier trial * 9 to in a moment. But even on the basis of what is quoted
10 The short point, my Lord, is that the way this is 10 in the skeleton, the question is whether justice to the
11 put forward is essentially swimming against the tide of 11 defendant requires the judge to postpone think decision
12 the proper approach in litigation of this type when 12 on costs until the final outcome is known.
13 issues of this importance are resolved. I will make the 13 Pausing there, when your Lordship goes to the
14 point good by reference to the cases in fact relied upon 14 judgment itself on the screen in the authority
15 by the Post Office themselves. 15 J7/7/10}, at paragraph 32 it gives pretty important
16 If I can start by taking your Lordship to the 16 context to the test the Court of Appeal was applying and
17 authorities bundle, tab 18 and looking at Beiber 17 what the Court of Appeal’s own view was, because four
18 v Teather and Greenwood {J7/18/1} 18 lines down on the right-hand side:
19 MRJUSTICE FRASER: Tab 187 19 “Whilst in the exercise of his discretion the Judge
20 MRGREEN: It’s tab 18 in the authorities bundle. 20 could have made, and indeed might well have been
21 MRJUSTICE FRASER: Do you want me to go to paragraph 27 21 expected to make, an immediate order for the payment to
22 7/18/6}2 22 the Claimant of the costs of the trial of the issue of
23 MRGREEN: Yes. 23 liability or at least a proportion of those costs
24 If one looks above, it’s actually pretty instructive 24 with some hesitation I reach the conclusion that on this
25 to see how this first -instance decision cites from the 25 appeal it is not possible to say that the Judge's
49 51
1 de Jongh Weill case against Mean Fiddler at 26. So the 1 decision was clearly one which he was not entitled to
2 premise of this first instance decision is what the 2 reach.”
3 Court of Appeal decided in de Jongh Well, as recited at 3 So the artifice
4 paragraph 26, and that is 4 MRJUSTICE FRASER: So you’re saying the part of
5 "There is much to be said for the view that the 5 paragraph 32 that’s quoted in the skeleton is taken out
6 incidence of costs should be the same whether or not for 6 of context.
7 case management reasons there has been an order for 7 MR GREEN: Paragraph 33 in the skeleton.
8 a split trial and whether or not the order for a. split 8 MRJUSTICE FRASER: Paragraph 33 is taken out of context and
9 trial was made on the initiative of the claimant or the 9 if you read paragraph 32, actually it looks very
10 defendant” 10 different
a. It’s pretty important, because these are the two 11. MRGREEN: The out of context
12 principal cases advanced at paragraphs 7 and 8 of the 12. MRJUSTICE FRASER: Is that the short point?
13 skeleton {J1/4/3}, to go back to de Jongh Weill, which 13 MRGREEN: Itis. It goes the other way directly, we
14 is cited at paragraph 7, and see whatis actually said 14 respectfully say.
15 in that case. That's at tab 7 of the authorities bundle 15 MRJUSTICE FRASER: I have that point.
16 7/7/1) 16 MRGREEN: I'm most grateful. That of course unravels to
17 I don’t know if I could respectfully ask 17 some extent
18 your Lordship to have handy the hard copy of the 18 MRJUSTICE FRASER: The case wasn't group litigation anyway.
19 skeleton alongside 19 MRGREEN: Itwasn’t group litigation anyway, which is why
20 MRJUSTICE FRASER: Hard copy of whose skeleton? 20 it is more instructive, if I may respectfully say so, to
21 MRGREEN: Of my learned friend's skeleton and then look 21 look at if we can go to Giambrone next, which is at
22 at the penultimate page of de Jongh Weill {]7/7/10}. 22 tab 6 {J7/6/1}, which again is a case against the
23 Your Lordship will see that the quotation in the 23 Post Office but which the Post Office cites as if it
24 skeleton goes from the beginning of paragraph 33 24 supports it.
25 MRJUSTICE FRASER: Yes. 25 The very paragraph that’s relied on at [J7/6/4}
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1 MRYJUSTICE FRASER: Just give me the paragraph number of the 1 MRJUSTICE FRASER: Well, the situation in that case, not
2 skeleton. 2 the situation in this case
3. MRGREEN: The paragraph number of the skeleton is at 3 MRGREEN: No, in Corby. So it is a fair distinction that
4 paragraph 40 on {J1/4/13}. 4 can be said to be made there.
5 MRJUSTICE FRASER: It says, “generally .. inappropriate in 5 “The Claimants have effectively and substantially
6 group litigation * 6 won on the Group Litigation issues. It was always open
7 MRGREEN: Yes. 7 to CBC to make admissions on those issues but it decided
8 MRJUSTICE FRASER: Yes. 8 that the issues merited contesting. There are no
9 MRGREEN: Before going into the detail that follows from 11 9 Part 36 offers or payments into Court .. to complicate
10 onwards, it's pretty important for your Lordship to see 10 matters”
11 what 10 actually says {J7/6/4}, because true it is that 11 And there is nothing of that sort here. Indeed,
12 the first sentence says: 12 my Lord, the approach the claimants took in this
13 “In my judgment in almost all group litigation cases 13 litigation on the Common Issues, particularly in
14 there should be no need for any detailed assessment of 14 relation to the implied terms, was openly, not without
15 costs until the conclusion of the group litigation . 15 prejudice save as to costs, openly to senda table of
16 Solicitors engaged in group litigation will be 16 implied terms and say, "Please tell us what you say the
17 specialists and experienced in the field 17 implied terms or their incidence are and we will
18 ‘Then pausing there: 18 sympathetically consider them because it could
19 * Solicitors for claimants 19 substantially narrow everything’.
20 This is very important, and reflects the approach in 20 Your Lordship had submissions on that and I’m not
21 Corb 21 going to go over them again. They were foreshadowed in
22 Solicitors for claimants are fully entitled to 22 our opening under the heading of * Utility *, and that
23 an adequate cash flow from the defendants once the 23 throws your Lordship forward in our
24 general issue of liability has been admitted or 24 MRJUSTICE FRASER: I understand.
25 determined in the claimants’ favour, similarly on 25 MRGREEN: That's all.
53 55
1 determination of generic issues in the claimants [’] 1 Paragraph 10 (J7/11/4)
2 favour and on the assessment or settlement of awards of 2 “The only argument of any force ... for CBC was that
3 damages to individual or batches of claimants.” 3 until one knows what the final outcome of all the
4 So in either of those cases, this is positively 4 Claimants’ claims is it would be premature and
5 authority in favour of that point. And the cash flow 5 inappropriate to award costs now. There is at least
6 point faced by claimants has been recognised in a number 6 a hypothetical possibility that all the Claimants will
7 of decisions, as your Lordship knows 7 fail to recover damages”
8 So 8 1 mention that, my Lord, because basically the big
9 MRJUSTICE FRASER: So you're saying that’s in your favour. 9 fight was over but it wasn't clear whether they would
10 MRGREEN: Your Lordship has the point. 10 all actually recover damages. So that’s the sense in
11. MRYJUSTICE FRASER: Right. Yes. 11 which one has to read paragraph 9.
12 MRGREEN: CanI take your Lordship just briefly to Corby, 12 This paragraph is instructive , as your Lordship has
13 which is at tab 11, simply because it is referred to. 13 probably seen already. This is six lines dow
14 A slightly different situation. But {J7/11/4] of the 14 “The scale and breadth of the Group Litigation
15 Opus reference, tab 11 physically of the authorities 15 issues would inevitably lead to a major litigation
16 bundle, "Should the Court makea costs order at all at 16 exercise with a large number of witnesses, experts and
17 this stage?” 17 documents anda very large costs risk. It was open to
18 MRJUSTICE FRASER: Which paragraph are you looking at? 18 CBC to protect its position on the Group issues by
19 MRGREEN: Paragraph 9, my Lord, I'm sorry, under that 19 admitting the duty
20 heading, "Should the Court makea costs order at all at 20 All the other issues they had there. {J7/11/5}:
21 this stage ?”: 21 “Put another way, these issues and the additional
22 “There is no good reason not to make acosts order 22 25 associated issues (largely agreed to be resolved)
23 at this stage. ‘The Group Litigation is now effectively 23 have been fought because CBC contested them. It would
24 over” 24 be wrong for the Claimants to be out of pocket as
25 Which was the situation in this case. 25 a result.”
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1 We respectfully say that that and the reference at 1 MRGREEN: Yes. So there’s an acute difference in the
2 paragraph 12 to the Colour Quest case, your Lordship 2 impact of those cash flow considerations for claimants
3 will see just above the bottom hole punch, the fact that 3 when they're funded, and the ordinary cash flow point
4 the trial judge is well placed to make a relevant 4 underlying it even without funders has been recognised,
5 assessment of the criteria is correctly in issue 5 as I have just shown your Lordship. So that’s wrong,
6 If we go over the - 6 that there isn’t any injustice
‘7 MRJUSTICE FRASER: Which authority are we in now? 7 ‘The second point they make is: there’s no evidence
8 MRGREEN: It’s just on paragraph 12 {J7/11/5}, my Lord, in 8 of injustice , which is wrong because Mr Hartley's third
9 the same 9 witness statement, which is at {J3.4/10/13}, spelt out
10 MR JUSTICE FRASER: Still in Corby? 10 the consequence-- the multiple point, if I can put it
11 MRGREEN: Yes. There is just a reference there to 11 that way. So there is evidence of it, even if
12 Colour Quest dealing with indemnity costs, but I will 12 your Lordship didn’t take judicial notice
13 come to indemnity costs separately. ‘The short point is: 13 The third point is
14 by parity of reasoning, just as the judge is well placed 14 MRJUSTICE FRASER: Hold on, before you go there. We
15 to assess indemnity costs, the trial judge is extremely 15 haven't got to Mr Hartley yer. We're now in
16 ‘well placed to assess the context of this 16 Mr Hartley's third statement. Which paragraph?
17 MRJUSTICE FRASER: Your short point think, or short 17 MRGREEN: It’s on page 13 {J3.4/10/13}. It’s under the
18 points, is, or are, depending on how many there are, is, 18 costs and security point. At paragraph 42, second line
19 that these were a group of self contained issues that 19 “The Claimants are reliant on funders continuing to
20 had to be resolved one way or the other. They were in 20 invest further money and the greater the level of
21 a separate trial. They are part of group litigation . 21 investment, the greater the sum required to be repaid to
22 You have won on the majority of those issues and you 22 the funders from the sums recovered on success.”
23 shouldn't be out of pocket until the end. 23 MRJUSTICE FRASER: Understood.
24 MR GREEN: Precisely. 24° MRGREEN: And:
25 MRJUSTICE FRASER: It is as simple as that, isn’t it? 25 “The net effect is to magnify
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1 MRGREEN: Plus they are determinative of final relief 1 MRJUSTICE FRASER: Right. Can you just remind me of the
2 claimed, declaration 2 date of that statement? I knowit’s September 2018,
3. MRJUSTICE FRASER: Understood. 3. MRGREEN: Itis
4 MRGREEN: ~ plus 4 MRJUSTICE FRASER: Ifwe just go back to the first page,
5 MRJUSTICE FRASER: But even if they weren't, they would 5 please {J3.4/10/1).
6 still have to be determined in order to move on to the 6 MRGREEN: Yes. 12 September 2018.
7 next step. 7 MRJUSTICE FRASER: Thank you very much. Right, so that’s
8 MRGREEN: Precisely. 8 your second point
9 MRJUSTICE FRASER: You're saying even though some of the 9 MRGREEN: And the third point is that the Post Office
10 claimants might in due course not recover substantial or 10 really ought to know that there is injustice and there
11 indeed any damages -- and Mr Cavender makes a perfectly 1 is evidence of it because that very witness statement,
12 fair point, which is quite a lot of the claimants might 12 that very point, was referred to in our written
13 be time-barred -- you're saying in the group litigation 13 submissions for this application in March at
14 it had to be resolved anyway. 14 paragraph 39, which is on {J1/1/9}. So it’s a bad
15 MRGREEN; Precisely. My Lord, the only final point in 15 point
16 relation to that is that the points made by the 16 MRJUSTICE FRASER: All right
17 Post Office in relation to no evidence of injustice are 17 MRGREEN: So those are the points in relation to now.
18 ‘wrong, and demonstrably wrong, for three reasons. 18 MRJUSTICE FRASER: In relation to whether they're now or
19 The first reason is: there is obviously injustice to 19 they're reserved.
20 funded claimants of the cash flow point and the multiple 20 MR GREEN: Precisely.
21 point, because your Lordship is entitled to take 21 MRJUSTICE FRASER: Yes, all right
22 judicial notice that funders aren’t doing it for free 22 MRGREEN: My Lord, is it convenient, do you want to hear
23 Even very -- 23 MRJUSTICE FRASER: I will hear from Mr Cavender because he
24 MRJUSTICE FRASER: Sorry, what's the multiple point? You 24 perfectly sensibly says: if he’s right on this, then we
25 mean multiple of the costs? 25 don't need to go on to the next point.
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1 MRGREEN: Precisely. 1 I'm saying that now, as a
2 MR JUSTICE FRASER: Mr Cavender. 2 MRJUSTICE FRASER: I thought you said -- you just said,
3 ‘Submissions by MR CAVENDER 3 “AIL this is in the skeleton”.
4 MRCAVENDER: My Lord, in my submission the normal order in 4 MRCAVENDER: Not that part, my Lord, no.
5 a case like this, following the termination of 5 MRJUSTICE FRASER: All right. But your express submission
6 preliminary issues, would be to reserve the costs. 6 today is that if I were to decide costs now in any way
7 MR JUSTICE FRASER: They are not preliminary issues, is the 7 other than reserving them, that would provide evidence
8 first point, are they? 8 that there had been a predetermination by the court
9 MRCAVENDER: My Lord, in my respectful submission they are 9 suggesting how the trial, the group litigation as
10 akin to preliminary issues. True it is that it’s being 10 a whole, would pan out?
aL done in the context of group litigation , but for the 11. MR CAVENDER: Well, it would award success to one party at
12 purpose of costs, in my submission the analogy is a good 12 a preliminary stage; it is no mostor less than that
13 one, 13 If we could go to the Mean Fiddler case again. It's
14 ‘The time-honoured formula has been and still 14 a Court of Appeal authority. That's in bundle 1, tab 7.
15 remains, to decide who has won or lost the case and has 15 My learned friend was looking at paragraphs 32 and 33
16 to pay the costs, who writes the cheque at the end of 16 J7/7/10}. He is right to say that 33 has to be read in
17 the day. As your Lordship rightly pointed out in the 17 light of 32, no problem abourthat. AndI do rely upon
18 recusal judgment, no one yet has won or lost . 18 the point that
19 What the court has done is to determine the rules 19 “There is much to be said
20 that will apply, the contract, so to speak, and I think 20 his is in 33:
21 1 used, not flippantly but by way of analogy, the rules 21 *.. for the view that the incidence of costs should
22 of the game, so to speak, have been determined by the 22 be the same whether or not for case management reasons
23 contract and the agency relationship. But the “game” 23 there has beenan order for a split trial.”
24 so-called, ie who wins or loses, has yet to take place. 24 Pausing there, that’s an important point. You can
25 That is, on the authorities I’m going to go through, 25 imaginea different court at an earlier stage saying
61 63
1 in my submission a classic case where relying on the 1 there would be an omnibus trial deciding all the issues,
2 various -- wehaveseena little bit of the authority 2 deciding issues of construction, breach, causation,
3 snippets of authority, the court can’t be sure that 3 limitation and settlement and loss. In that world, the
4 things will happen in the future that will affect and 4 result may have been very different
5 alter its view about incidence of costs. It simply 5 If that’s right -- in my submission it must be
6 cannot do so. If it does so now, in my submission as 6 then why should there, as a matter of principle, be
7 a matter of principle, that would evidence 7 a different result because for case management reasons
8 a predetermination or would go towards suggesting the 8 the court decides to have an earlier trial, a Common
9 court has reached a view about matters as to how things 9 Issues trial, which 1 say is akin to preliminary issues?
10 are going to pan out in the future. 10 Why, as a matter of principle, should that alter the
it In the future whether any of these claimants win or 11 incidence of costs? In my submission it should not;
12 lose will be dependent on questions of breach, questions 12 neither should the fact it is wrapped up in the envelope
13 of causation, questions of limitation and settlement 13 of group litigation , as a matter of principle, make any
14 All this is in the skeleton. So simply to have declared 14 difference either
15 the contract and its incidence in a way that the 15 ‘Taking my learned friend’s point on Mean Fiddler, he
16 claimants wanted doesn’t mean to say they are going to 16 is right to say that the Court of Appealin this extract
17 be successful in the action. Indeed, I think we said 17 was deciding whether or not to interfere with the
18 that in our cost submissions and your Lordship was kind 18 discretion of the judge. But look at paragraph 31
19 enough in your recusal judgment to say you thought that 19 {J7/7/9}, which he hasn't taken you to, which is the
20 reflected the position. 20 important point here as to what the outstanding issues
21 MRJUSTICE FRASER: Can you show me in your skeleton where 21 that the defendants were saying were at large and which
22 you say it would suggesta predetermination that the 22 prevented the award of costs:
23 court has reached a view on matters yet to be dealt with 23 “In this case the Defendant sought ..”
24 in the future? 24 This is in the third line down in 31
25 MRCAVENDER: My Lord, it doesn't say it in my skeleton. 25 to establish the existence of special
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1 circumstances requiring or justifying a different 1 County Count.
2 course, These special circumstances were that: (a) the 2 In terms of the liability for costs, because he
3 Defendants would at the subsequent hearings seek to 3 allowed an appeal on the point of construction, but the
4 establish (though no hint of this suggestion was given 4 costs bit is paragraph 50 and following {J7/16/13}. So
5 in the Defence) that the warrants were valueless 5 at §1:
6 {and the] damages ... would be nominal 6 “In the present case, I have allowed the appeal
7 So what the defendant in Mean Fiddler was doing was 7 against Judge Cockcroft’s order as to the interpretation
8 saying, "Well, whatever was argued or pleaded, we have 8 of clause 4.2. In my judgment, clause 4.2 does provide
9 these other great points we're going to bring, and 9 the appellants with a complete defence to the
10 therefore there are still matters to be determined”. 10 dilapidations claim
at That is a million miles from our case, where there are 11 *. [the court has] no basis on which the
12 on the pleadings issues of causation or breach of 12 appellants should pay the claimant's costs of the
13 causation, of settlement, of limitation and of damage. 13 preliminary issues.”
14 So it’s not: we're coming along and saying, “Oh, well, 14 He talks about the “driving seat” Then 53 is
15 we may have lost on the first set of issues, but there 15 really the point:
16 are all these other issues that we haven't even pleaded 16 *I do not make an order that the claimant should pay
17 or hint’, in 31, So it’s a very different case. In 17 the appellants’ costs of the preliminary issues, despite
18 that context, the submission based on 33 in my 18 their success on the preliminary issues. It seems to me
19 submission is a good one. 19 that those costs should always have been costs in the
20 If we can go to the Beiber decision, authorities 20 case”
21 bundle 2, tab 18, the decision of Mr Justice Norris. It 21 So there are a couple of points one gets from that.
22 is paragraph 27 J7/18/6}, I think as your Lordship 22 One is that failure or success of preliminary issues at
23 said, obviously having pre-read this, whichin my 23 an earlier stage is not an event, so far as
24 submission encapsulates the correct principle, namely 24 Mr Justice Coulson is concerned in that case, that they
25 that 25 be costs in case. There is nothing in the rules, in my
65 67
1 :.. the ultimate outcome of costs should not be 1 submission, that simply says because something is part
2 determined by the case management directions that have 2 of group litigation that some other rule should apply.
3 been given. I consider that the court should be 3 If we go to Corby, for instance. My learned friend
4 confident (before making a major and final costs order 4 relies on that, You have to be careful about Corby
5 partway through a staged trial) ..” 5 because there the group litigation had ended.
6 We're talking about such a case here, millions of 6 MRJUSTICE FRASER: No. Duty breach and causation had been
7 pounds: 7 resolved, but the group litigation hadn’t
8 ".. that nothing will occur in the remainder of the 8 MRCAVENDER: I may have misunderstood it then. Let's go to
9 case that will render such an immediate order 9 it. If we goto tab 11 (J7/11/1).
10 substantially unjust.” 10 MRJUSTICE FRASER: Maybe it had de facto ended. I don't
it And he refers to the de Jongh Weill case. 11 think damages had been quantified, but I might be wrong.
12 Then he says, over at 28 {J7/18/7}: 12 + MRCAVENDER: Let's goto it. It is bundle 1, tab 11
13 “In my judgment, there is a real possibility that 13 {J7/11/2}. At paragraph 2 he says:
14 the outcome of any trial will affect the merits of the 14 “Following my judgment on the Group Litigation
15 parties’ entitlement in respect of the settlement of 15 issues, and subject to questions of costs and
16 earlier determined issues. I think that justice to the 16 applications for leave to appeal ... as the judge
17 claimants requires me to postpone any decision on costs 17 allocated ... [I] have completed all that I have been
18 until the final outcome of the action is known.” 18 required to do”
19 So, my Lord, that is the principle I urge you to 19 MRJUSTICE FRASER: Yes, that's right. That's because what
20 follow and adopt, and that’s based on the prior Court of 20 happens in group litigation , we haven't yet reached this
21 Appeal authority. 21 stage in this case, but the managing judge is in charge
22 Can I then take you to Perriam v Wayne, bundle 2, 22 of effectively such issues as the managing judge feels
23 tab 16 {J7/16/1}, the decision of Mr Justice Coulson, as 23 he or she ought or wants to resolve themselves, but, for
24 he then was. This was an appeal he heard against 24 example, damages consequent on those findings can be
25 a judgment of his Honour Judge Cockcroft in the Leeds 25 tried by other courts elsewhere.
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1 MRCAVENDER: Indeed. No, I understand that. 1 issue, it should meet the costs of that issue”
2 Then paragraph 9 {J7/11/4}. So that’s the 2 ‘That isn’t the case here. This is the case where
3 background to paragraph 9. It says: 3 the court, divested of its management role, has decided
4 “There is no good reason not to make acosts order 4 to decide the issues for case management reasons in
5 at this stage. The Group Litigation is now effectively 5 a particular order.
6 over? 6 MRJUSTICE FRASER: Yes.
7 Often what happens in group litigation , I think as ‘7 MR GREEN: In my submission, as a matter of principle, that
8 you're hinting at, very often the case is then released 8 should not affect the incidence of costs
9 to county courts and other courts across the land 9 So those are the twocases my learned friend relies
10 MR JUSTICE FRASER: Yes. 10 upon, Corby and AB. They don't, in my submission,
11 MR CAVENDER: ~-to then implement the determinations by the 11 really get very far and don’t really say much about the
12 group litigation order and the managing judge 12 general principle that Mr Justice Norris, in the case
13. MR JUSTICE FRASER: Correct. 13 I referred you to, thought he got from the Court of
14 MRCAVENDER: Soasfaras he’s concerned, his jurisdiction 14 Appeal case, and in my submission he’s right: that the
15 is over really, so he has nothing else to say. And 15 court can’t at an early stage, in preliminary issues,
16 there has been cost-sharing and all the rest of it by 16 determine who is going to be the eventual winner.
17 the group litigation people on the register at that 17 By “winner”, I mean winner in the action, not just
18 date, so it’s not surprising that in sucha case he 18 the winner of deciding what the rules of the game are,
19 decides to deal with the costs in the way he does, even 19 if I may put it that way. The winner is the winner of
20 though there may be issues hypothetical. 20 the game, not the person that at the first stage gets
21 That's the other point, my Lord, paragraph 10 21 its rules adopted and approved by the court.
22 7/11/4} 22 There can’t be, in my submission, a different rule
23 “There is at least a hypothetical possibility that 23 based on whether the claimants have commercial offshore
24 all the Claimants will fail to recover damages.” 24 funders. It cannot be the law, as a matter of
25 So he’s saying, "Well, okay, that’s theoretical . 25 principle, that if you have commercial offshore funders
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1 But as far as I’mconcerned, as managing judge, my role 1 that fund litigation of this type for commercial reward,
2 is over”, and therefore it’s not surprising in such 2 that somehow that should be taken into account in making
3 MRJUSTICE FRASER: Right, because the group litigation 3 an order at this stage of costs which otherwise you
4 issues had all been resolved by then. 4 would not make.
5 MRCAVENDER: Exactly. Soin my submission that doesn’t 5 So the injustice point -- did your Lordship want to
6 really assist my learned friend very much at all, when 6 carry on reading that, andI can sit down and then carry
7 looked at in context. 7 on?
8 Then if we can goes to Mr Justice Foskett in 8 MRJUSTICE FRASER: No.
9 AB & Others v The Ministry of Defence. This is trial 9 MR CAVENDER: No.
10 bundle 1, tab 12 {J7/12/1}. This was group litigation 10 MRJUSTICE FRASER: I'm paying attention.
11 There were a series of preliminary issues. The debate 11°) MRCAVENDER: All right.
12 ‘was whether costs should be reserved or not. 12 MRJUSTICE FRASER: I'm actually looking at the part of the
13 One of the points that the judge made is at 13 White Book that deals with specific costs orders in
14 paragraph 14 {J7/12/5}, that doesn’t apply here. Does 14 group litigation , which you told me didn’t exist. I am
15 my Lord have paragraph 14 of this case? 15 paying attention to what you are saying
16 MR JUSTICE FRASER: Remind me of the tab number? 16 MRCAVENDER: My Lord, of course there is a part in the
17 ~~ =MRCAVENDER: This is tab 12 in bundle -- 17 White Book dealing with costs in group litigation Tm
18 MRJUSTICE FRASER: In the authorities 18 saying as matter of principle though -
19 MR CAVENDER: Inthe authorities at bundle 1. Bundle 1, 19 MR JUSTICE FRASER: No, Iunderstand. You're saying the
20 tab 12 (J7/12/5} 20 situation where there are commercial offshore funders
21. MRJUSTICE FRASER: Yes. 21 doesn’t put this into its own separate category, and if
22 MRCAVENDER: The submission made by Mr Browne there was 22 I wouldn’t ordinarily make an order in the claimants’
23 thar: 23 favour, the fact that they have funders means I should
24 since the Defendant elected to take the 24 not make an order in reliance on that feature
25 limitation point and has substantially failed on that 25 MRCAVENDER: Exactly.
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1 MRJUSTICE FRASER: ~-I think 1 I will be making Common Issues costs orders
2 MRCAVENDER: Exactly right. 2 MRCAVENDER: In my submission itisa distinction without
3 MRJUSTICE FRASER: And I, for what it’s worth, happen to 3 a difference for these purposes.
4 agree with you. 4 MRJUSTICE FRASER: Right.
5 MR CAVENDER: My Lord, that’s the so-called * injustice ” 5 MRCAVENDER: It makes no difference at all because in order
6 point. 6 to win, to fund, if you like, your claim which is
7 So in terms of fairness -- and of course you 7 individual costs, you have to have wonor lost on the
8 exercise your discretion here, but obviously you must do 8 common issues. It’s parasitic, obviously, a bit like in
9 so judicially and fairly. In terms of * fairly *, 9 the ABcase. You've founda contract or a breach and
10 reserving the costs holds the ring. One doesn’t know 10 causation, and perhaps causation and damage is left to
11 what the future will hold in complex litigation of this 11 the individual to bring in their local county court or
12 type. It is a long road, and if the court does make 12 whatever. That's obviously the individual costs
13 costs orders, and significant , millions of pounds, then 13 Here we're agreed this is common costs, butin my
14 that does look as if it has formed a view that based on 14 submission this distinction doesn't bear upon whether or
15 that, those claims are eventually going to win, because 15 not the common costs should be reserved or not. It's
16 only the people that win get costs 16 a distinction , but not a material one, in my submission,
17 MRJUSTICE FRASER: But that’s the point at which the part 17 for this debate
18 of the White Book I'm looking at is rather important, 18 MRJUSTICE FRASER: Butyou accept that I’m correct I should
19 which is special cases for costs, whichisn’t in part 44 19 be making an order under 46.6(5)?
20 at all; it’s in part 46. 20 MRCAVENDER: My Lord, yes. I haven't had my attention
21. MRCAVENDER: Which page is your Lordship looking at? 21 drawn to this previously, but yes, it looks as if that
22 MRJUSTICE FRASER: Why don't we look at 46.6 on page 1512: 22 isa
23 "There is a difference in group litigation between 23 MRJUSTICE FRASER: I’m specifically required to do that
24 costs that are common costs and costs that are 24 I think, with 100% of the costs being common costs.
25 individual costs ° 25 MRCAVENDER: Yes, the other point I’m reminded of, of
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1 MR CAVENDER: Indeed. At the moment these, as I understand 1 course, is at the end of the day, were a claimant to
2 it, are all common costs. 2 win, right at the end of the day, they would obviously
3. MRJUSTICE FRASER: Well, one of the things I have to do 3 get their individual costs but they'd also get
4 today, because I will be making an order about costs in 4 a proportion of the common costs, it would be allocated
5 relation to whatare effectively GLO issues, one of the 5 to them, whether they'd won or lost
6 things I have to do -- I’mnot necessarily sure it's in 6 MRJUSTICE FRASER: That's by no means automatic.
7 either party’s draft order but I might have missed it 7 MRCAVENDER: It's not automatic but that’s my understanding
8 is an order under 46.6(5) that all the costs are common 8 of what would normally happen. Let’s assume it’s
9 costs, because there is no debate between you that they 9 a single trial, to make it simple
10 are. But so far as success by an individual claimant is 10 MRJUSTICE FRASER: Yes, but that's why-- it’s different
a1 concerned, Mr X or Ms Y may well fail_and recover 11 This is group litigation though, Mr Cavender.
12 nothing. 12 MR CAVENDER: I'm saying group litigation, where you have 50
13. MRCAVENDER: Correct. 13 or 500, it’s our case, and you win or lose at the end:
14 MRJUSTICE FRASER: On the basis that there is 14 in that case all the costs of the trial wouldn't have
15 a counterclaim by the Post Office against some, if not 15 been common costs because you would be investigating
16 all, of the claimants, they may well fail andin fact be 16 individual cases as well, on my premise. So you would
17 ordered to pay damages in fraud to the Post Office. 17 have individual costs and common costs.
18 = MRCAVENDER: Correct. 18 MRJUSTICE FRASER: It would bea rare group litigation case
19 MRJUSTICE FRASER: Bur those would be individual costs, 19 that hada single trial though, wouldn't it? The whole
20 they wouldn't be common costs, would they? 20 purpose of group litigation is that you don't have
21° MRCAVENDER: I think that’s probably right. 21 a single trial
22 MRJUSTICE FRASER: So judging it in terms of potential 22 MRCAVENDER: No, but you could have a small group of, say,
23 overall success for a group of, or some, or even many 23 15 and try all the cases out, and the common issues
24 individuals approaches it more onthe basis that I would 2.4 ‘would be those of law and the individual things of
25 be making an individual costs order today, whereas 25 damage would be tried.
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1 MRJUSTICE FRASER: All right. 1 whether or not costs should be reserved
2 MR CAVENDER: I have just been passed something here. 2 MRJUSTICE FRASER: Which is your primary position.
3 (Pause) 3. MRCAVENDER: -- which is my primary position.
4 If you look at 46.6(5)(a) and (b) 4 MRJUSTICE FRASER: I understand that. Right
5 MRJUSTICE FRASER: That is the part I draw your attention 5 Is there anything you'd like to add?
6 to, I think 6 MRCAVENDER: What's being pointed out to me, 44.6(5),
7 MRCAVENDER: Indeed. And (4) is relevant as well. 7 apparently we're not in that because that anticipates
8 MRJUSTICE FRASER: Well, at the moment -- (4) deals with 8 a case where there is
9 a group litigant who is a paying party. ‘The Post Office 9 “. one or more GLO issues; and
10 isn’t a group litigant. You are not seeking your costs 10 issues relevant only to individual claims
11 from the claimants. Your suggestion for today’s costs 11 ‘That suggests a situation that your Lordship thought
12 order I don’t think would lead to any group litigants 12 would be unlikely: it’s where you have both together.
13 being a paying party, but I might be wrong. 13 Whereas here, as I understand it, it’s common ground we
14 MRCAVENDER: No, but the point I make is (4)(b) 14 only have common issues.
15 *., an equal proportion, together with all the 15 MRJUSTICE FRASER: That's why I wanted to check. That's
16 other group litigants , of the common costs” 16 the point I wanted to check.
17 So what that does do is reflect what I was saying, 17 MRCAVENDER: Yes. Sol think we don't even get down the
18 that there are two elements 18 rabbit hole
19 MRJUSTICE FRASER: I think whoever has passed you that note 19 MRJUSTICE FRASER: Well, (a) it’s not a rabbit hole; and
20 might be jumping rather ahead. I don’t understand any 20 (b) I’m pretty sure that whether you're confident that
21 of the orders being sought by either party today to lead 21 we do or not, the simplest thing is to include in
22 to a situation wherea group litigant would be a paying 22 today’s draft order that all of the Common Issues costs,
23 party, because your primary position today is: reserve 23 or the costs of the Common Issues trial, are, for the
24 the costs, which I understand. If I’m not prepared to 24 purposes of 46.6, GLO issues.
25 do that, you resist Mr Green's application on other 25 MRCAVENDER: My Lord, yes. We have no objection to that.
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1 bases. ‘1 MRJUSTICE FRASER: Yes, all right. Okay. But we're not
2 I think your skeleton also accepts that the 2 getting on to the drafting of the order at the moment.
3 claimants were -- let meuse your exact phrase, because 3 You just need a decision from meas to whether I’m going
4 it was quite well put, I thought, in terms of the degree 4 to reserve the costs or not.
5 of who had won. 5 MRCAVENDER: Indeed. The point I make -- and again we have
6 MRCAVENDER: It was obviously more successful on the 6 gone into that, very helpful -- there is nothing, in my
7 MRJUSTICE FRASER: Yes, so you're not seeking any group 7 submission, at all to do or impact upon whether to
8 litigant today to bea paying party, and that’s the only 8 reserve costs or not.
9 position in which 46.6(4) comes into operation. 9 MRJUSTICE FRASER: That might be right, Mr Cavender. But
10 MRCAVENDER: But (5) is the one you drew my attention to 10 you said there were no special orders for costs in
11. MRJUSTICE FRASER: Yes. 11 relation of group litigation , and there are.
12 MR CAVENDER: The second part of (5), after (a) and (b), 12 MRCAVENDER: There are no provisions that are relevant to
13 says: 13 this point about reserving or not. There is nothing
14 *.. the court will direct the proportion of the 14 that says, as I understand it -- my learned friend
15 costs that is to relate to common costs and the 15 hasn’t shown you that because it is group litigation ,
16 proportion that is to relate to individual costs.” 16 the costs should be paid at every stage and all
17 =MRJUSTICE FRASER: Correct. That’s entirely correct. 17 revisited later, whether preliminary issues or not.
18 MRCAVENDER: Yes. But, my Lord, the reason we went down 18 That’s the point I was making. I think I’m right about
19 this rabbit hole, which is whether or not this special 19 that.
20 cases provision says anything or has any influence on 20 MRJUSTICE FRASER: I don't need you to answer at all. I'm
21 ‘whether the costs should be reserved or not -- that’s 21 just going to tell you whether I'm going to reserve or
22 how we got here. In my submission you might have to 22 not.
23 make another order today to make stire we comply with 23 MRGREEN: I'm most grateful
24 this, once we agree what it says and what we need to do. 24 MRJUSTICE FRASER: Allright. Because there’s a passage
25 But in my submission that doesn’t impact in any way upon 25 which I’m going to start. I'm just going to give you
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1 an brief ruling about it, so that you know why. 1 that further this afternoon.
2 (1.00 pm) 2 MRGREEN: I'm grateful
3 (Ruling awaiting the judge's approval) 3 MRJUSTICE FRASER: So it is what the costs order should be,
4 (1.10 pm) 4 including any percentage reduction; basis of assessment,
5 MRJUSTICE FRASER: For the purposes of today’s draft order, 5 including the curiosity we have identified; when the
6 whoever is drafting it, it will need to include 6 assessment should start; and any payment on account.
7 a 46.6(5) passage in it at the beginning ‘7 MR GREEN: My Lord, yes.
8 I'm going to rise now. I will come back at 2.10. 8 MRJUSTICE FRASER: Those are the matters this afternoon.
9 Can you, between you, just remind me what is on today’s 9 MRGREEN: Those are the four points.
10 agenda then remaining? 10 MRJUSTICE FRASER: All right. 2.10. Thank you very much.
11.) MRGREEN: My Lord, it is the remaining points 11 (1.12 pm)
12 MRJUSTICE FRASER: It is what the costs order should be -- 12 (The short adjournment)
13 MRGREEN: It’s what the costs order should be. 13 (2.10 pm)
14 MRJUSTICE FRASER: ~ basis of assessment 14 MRJUSTICE FRASER: Just before we start, I gave
15 MRGREEN: Basis of assessment. 15 an incorrect reference when I was giving the ruling on
16 MRJUSTICE FRASER: ~ any payment on account 16 the Post Office's application for permission to appeal.
17 MRGREEN: Payment on account. 17 It is a case called Wheeldon v Millennium, I think
18 MR JUSTICE FRASER: Actually what the costs order should be 18 I said it was [2019] EWCA; in fact it is [2018]
19 includes within it any percentage reduction to reflect 19 EWCA Civ 2403,
20 the fact that there has been less than 100%. 20 Then! just want to add one passage to the ruling
21 MRGREEN: Precisely. There is one distinction , my Lord, in 21 I gave just before 1 o'clock about reserving the costs.
22 relation to indemnity costs: there is the budgeted 22 What! am going to do is 1 am going to produce somewhat
23 costs 23 more detailed written reasons both for that and for any
24 MRJUSTICE FRASER: I understand that point. 24 other rulings I make this afternoon.
25 MRGREEN: We just say 25 (214 pm)
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1 MRJUSTICE FRASER: That’s rolled up within 1 (Ruling awaiting the judge’s approval)
2 MRGREEN: ~ standard certainty, standard basis. Sorry. 2 (215 pm)
3 MRJUSTICE FRASER: That pointis rolled into basis of 3 MRJUSTICE FRASER: So, Mr Green.
4 assessment because you are, as I understand it, seeking 4 Submissions by MR GREEN
5 a different assessment upto a date in April 2018 and 5 MRGREEN: My Lord, yes. The first point of the four is the
6 then -- I think you are looking for indemnity costs up 6 principle of costs and any reduction.
7 to a date in 2018 and thereafter standard costs? ‘7 MRJUSTICE FRASER: Yes.
8 MRGREEN: My Lord, yes. 8 MRGREEN: Your Lordship has seen that the Post Office
9 MRJUSTICE FRASER: Right. 9 contends, at paragraph 27 {J1/4/8}, for a 30% reduction.
10 = MRCAVENDER: The other pointis the timing of the 10 MRJUSTICE FRASER: To reflect their success on the issues
a1 assessment. My learned friend wantsa detailed 11 they succeeded on.
12 assessment now; we are saying that shouldn't happen. 12 MRGREEN: Exactly. We respectfully say our primary
13 ‘That is another item. 13 submission is there should be no reduction at all, for
14° MRJUSTICE FRASER: I understand that. Is that, however, 14 reasons I'l explain.
15 though -- and will just ask you that question now. If 15 MRJUSTICE FRASER: Yes.
16 I'm making a payment on account, does that really make 16 MRGREEN: And our secondary submission is that were there
17 any difference? 17 to be any reduction, it should be minimal, very small,
18 + MRCAVENDER: It’s for my learned friend to answer that. It 18 possibly 5
19 is something he’s seeking, and I'm saying it's not 19 MRJUSTICE FRASER: Thank you for clarifying what “minimal”
20 normal. It makesless of a difference, for the reason 20 means.
21 your Lordship has intimated. 21 + MRGREEN: Sorry. I was about to say: possibly of the order
22 MRJUSTICE FRASER: Yes. 22 of 5%.
23 MRCAVENDER: Buritis for him to decide whether he wants 23 MRJUSTICE FRASER: Yes
24 to maintain that or not 24 MRGREEN: The reasons for that are some of principle and
25 MRJUSTICE FRASER: Allright. Mr Green, we will deal with 25 some based on the judgment itself and some based on
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1 their submissions. 1 lost, but looks at the fact that your Lordship
2 The point of principle 1 would like to invite 2 effectively found similar obligations otherwise implied,
3 your Lordship to consider first is in the Kastor case, 3 but not by statute.
4 which is at (J7/8/1}. That is tab 8 in the authorities 4 MRJUSTICE FRASER: But there were issues which don't fall
5 bundle. My Lord, I don’t think these are particularly 5 into that category.
6 controversial points, but I think it is right to just 6 MRGREEN: My Lord,lagree. I'm just trying to identify --
7 identify any points of principle very briefly . ‘7 MRJUSTICE FRASER: The Post Office as SPM agent, for one.
8 The first point, it is paragraph 151 {J7/8/44} 8 MRGREEN: Indeed. My Lord, the point 1 was coming to in my
9 1 can’t see what page that is, but it’s the 9 order -- I will take that point now ~ the short point
10 penultimate - 10 on that was essentially that was! think about two
11 MR JUSTICE FRASER: We're at tab 7, are we? 11 questions to Mrs Van Den Bogard, "You've said in your
12 MRGREEN: I'msosorry, tab 8. {7/8/44}. It is the 12 witness statement this is a service you supply to
13 penultimate page. 13 subpostmasters, and a couple of paragraphs in our
14 MRJUSTICE FRASER: Yes. 14 submissions. So it’s a minimal point. But
15 MR GREEN: My Lord, bottom of the page, paragraph 153. 15 your Lordship is quite right, we lost on it, and that’s
16 1 don’t think it’s in any sense controversial, it’s 16 fair enough.
17 probably absolutely trite, but it’s obviously not 17 ‘The obligations which the claimants were seeking to
18 a simple mathematical calculation 18 establish by virtue of that relationship, the substance
19 MR JUSTICE FRASER: Thatis effectively accepted by the 19 of those obligations are reflected in the finding of
20 Post Office. They have very sensibly said they're not 20 relational contract. So for two reasons we say there
21 seeking a mechanistic issue by issue and it should be 21 that ona proper analysis, it’s more in the appearance
22 done by means of a percentage. 22 than in the reality of a win, but it’s fair to say they
23 MRGREEN: Exactly. 23 did win that issue.
24 MRJUSTICE FRASER: That is the modern way, isn’t it? 24 MRJUSTICE FRASER: Yes
25 MRGREEN: That's exactly right. But what we would go on to 25 MRGREEN: So, my Lord, that was the first point of
85 87
1 say, with respect, is: when one is looking at 1 principle
2 an percentage it is not a mechanistic approach either 2 Then the court obviously has in mind
3 arithmetically. It is not meant to be controversial 3 MRJUSTICE FRASER: What exactly is the point of principle
4 The reason I'm taking your Lordship to the authority 4 though? You're saying: not mathematical?
5 is paragraph 151 {7/8/44}, which is the alternative 5 MRGREEN: No, the point is that one should carefully have
6 case point, and it's quite an important point because 6 regard to whether one has arrived at substantially the
7 the principle is that where a party advances two 7 same route by an alternative
8 alternative arguments directed at the same outcome, they 8 MR JUSTICE FRASER: Understood.
9 are not to be penalised if they succeed on one and not 9 MRGREEN: The second point, my Lord, is to have regard
10 the other. This is the distinction being made, to show 10 and this picks up I think on their NTC not incorporated
11 you exactly what's said and then relate it across to our 11 point. They say: it would have been fantastic if we had
12 case. It says: 12 taken notice of the binding Court of Appeal authority.
13 “This is not a case where the issue on which the 13 There are two points in relation to that.
14 successful party lost wasa separate head of claim: it 14 MRJUSTICE FRASER: On it being signed?
15 was a separate basis for putting the successful party's 15 MRGREEN: Itbeing signed
16 only claim. Accordingly, unlike in many cases involving 16 MRJUSTICE FRASER: Yes.
17 issue based orders for costs, this wasa case where the 17 MRGREEN: The first point is that there is an enormous
18 issue on which the successful party lost would not have 18 overlap between the unfair contract terms arguments and
19 been litigated if the unsuccessful party had conceded 19 the argument that they were onerous terms in relation to
20 the issue on which the successful party won” 20 NTC. And secondly, as to the principles, those had to
21 Just to give a practical example from 21 be argued in any event for the SPMC.
22 your Lordship’s judgment, supply of goods and services 22 MRJUSTICE FRASER: Yes
23 the Post Office claims to have wonon the act. We 23 MRGREEN: Itis completely artificial to regard those
24 respectfully say, on the correct principle, your 24 matters of evidence as the Post Office seeks to
25 Lordship doesn’t just tick a box whether they won or 25 characterise them where the same substantive material
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1 would have been deployed in any event, both the legal 1 §1/4/7}. It has come up. Your Lordship will see at
2 arguments on the SPMC and consideration of the actual 2 the bottom --
3 effect of the terms for our purposes. 3 MRJUSTICE FRASER: Just bear with me, just for a second.
4 There is authority for that, my Lord, which is at 4 I'm just chasing up a hard copy.
5 (J7/17/8} at paragraph 28, which picks up the point that 5 So this is the note at number 1?
6 1 have already made by reference to Kastor but also adds 6 MRGREEN: Itis the footnote at number 1, which is very
7 the same material point. 2 7 Jong, and recites the issues on which the Post Office
8 “However, on analysis, it seems to me that that 8 won,
9 approach would not be appropriate in this case. It is 9 MRJUSTICE FRASER: Yes.
10 right that the defendant lost on its statutory authority 10 MRGREEN: Ihave already mentioned supply of goods and
11 defence. However, all of the detailed legislation that 11 services, my Lord, but can I mention, for example, true
12 was considered by reference to that unsuccessful defence 12 agreement, where they say they won. Your Lordship will
13 was directly relevant to the alternative defence of 13 well know from your Lordship's own decision that what
14 reasonable user, on which the defendant was entirely 14 you actually found was that this common issue didn't
15 successful .” 15 fall to be determined, but you would otherwise have
16 So you can have situations where - 16 followed the approach argued in the alternative by the
17 MRJUSTICE FRASER: That doesn’t really add anything to your 17 claimants.
18 submissions you've already made, does it? 18 MRJUSTICE FRASER: Yes.
19 MRGREEN: Well, my Lord, 1 think 19 MRGREEN: That's at 925 on page 264 of the judgment
20 MRJUSTICE FRASER: You're saying you can't look at it, for 20 {B7/29/264}.
21 example, as 7 -- well, let's use different numbers 21 MRJUSTICE FRASER: 295?
22 10 issues out of 20, so therefore it’s automatically 22 MRGREEN: Iris paragraph 925.
23 a half, because some of the issues may have been either 23. MRJUSTICE FRASER: Sorry, the mouse was hovering over the
24 overlapping issues or different ways to get to the 24 paragraph number. You're talking about Judgment No 3
25 ultimate same answer. 25 now, not what I've said in Judgment No 4?
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1 MRGREEN: Yes 1 MRGREEN: No, my Lord, what you said in Judgment No 3
2. MRJUSTICE FRASER: Ihave that point. 2. MRJUSTICE FRASER: Yes.
3. MRGREEN: Then the second pointis that some of the issues 3 MRGREEN: ~ in terms of what -- your Lordship was
4 were interdependent in a different sense, in that a term 4 absolutely right in Judgment No 4 to say you were
5 may be less onerous if its exercise is governed by 5 invited to decide some issues, and some of them you
6 implied duties of good faith. And as heralded for two 6 found in the Post Office's favour, and that’s absolutely
7 years by the claimants repeatedly, we could not possibly 7 correct. But we say, when you come to costs, the
8 win on every issue. That was made absolutely clear for 8 context is: how were they determined in fact?
9 two years. 9 MRJUSTICE FRASER: Yes.
10 MR JUSTICE FRASER: Yes. 10 MRGREEN: And we look at paragraph 925, which is the very
11 MR GREEN: Then there is the point about how the issues were 1 paragraph to which reference is made, about six lines
12 in fact resolved. We would just invite some caution, 12 down
13 my Lord, in accepting the characterisation of those 13 MRJUSTICE FRASER: But you're saying I think, on the basis
14 issues in the lengthy footnote by which they are said to 14 that your opening submission this afternoon was that
15 have been recited as having been determined in their 15 there should be no reduction, you're effectively saying
16 favour. I will take an example. Just to take 16 the degree of success on the Post Office's point of view
17 an example, true agreement, my Lord, at 925 (B7/29/264} 17 on all of the common issues was such that it does not
18 MRJUSTICE FRASER: Just give mea second to find the 18 warrant a reduction.
19 lengthy footnote 19 MRGREEN: Precisely.
20 MRGREEN: There is actually a very similar one in two 20 MRJUSTICE FRASER: That's pretty optimistic, if not failing
21 different places. One is a footnote in their permission 21. to pay attention to paragraphs 295 and 296 of Judgment
22 to appeal skeleton and the other is a footnote at page 7 22 No 4 (B11.2/3/74}, is it not? Because I've already
23 of their skeleton argument, footnote - 23 dealt with this point in Judgment No 4. I've given the
24 MRJUSTICE FRASER: Let's go to page 7. 24 global summary. What Isaid in Judgment No 4 was: the
25 MR GREEN: Defendant's skeleton argument on page 7, which is. 25 Post Office’s solicitors * submissions of 29 March
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1 correctly reflected the success or otherwise of both of 1 not available to us in the Court of Appeal if we don't
2 the parties in Common Issues Judgment No 3. 2 have your Lordship’s treatment of it in this judgment,
3. MRGREEN: My Lord, I think that is completely right 3 if we seek to cross-appeal.
4 MRJUSTICE FRASER: But aren't you trying to reinvent the 4 MRJUSTICE FRASER: No, that’s correct. But that doesn’t
5 wheel by persuading me that actually they didn’t; or if 5 mean you haven't not lost on it.
6 they did, it shouldn't affect the costs at all? 6 MRGREEN: No,it doesn’t at all. But it goes to the --
‘7 MRGREEN: Ithink, my Lord, I can’t say that they didn’t, ‘7 MRJUSTICE FRASER: Sorry, that doesn’t mean you haven't
8 because (a) they did, and your Lordship said they did 8 lost on it
9 That's 9 MRGREEN: Yes, and your Lordship is right. But just on the
10 MR JUSTICE FRASER: Ifone accepts they did, is not the 10 background factor of whether it was reasonable to take
11 modern consequence of that that consideration is given 11 the point in the first place, we respectfully say that
12 to a percentage reduction? 12 that is a fact, although a small one, but it's
13 MRGREEN: Yes. But, my Lord, the modern consequence is 13 a material one.
14 consideration is given. I’m now addressing 14 MRJUSTICE FRASER: Understood.
15 your Lordship on whether 15 MRGREEN: The central point, which your Lordship is well
16 MRJUSTICE FRASER: But you're saying the reduction should 16 aware of, basically relational contract -- which my
17 be zero 17 learned friend said suffused everything else -- and the
18 MRGREEN: Yes, that’s our primary submission because 18 implied terms, those issues, your Lordship will
19 1 will give your Lordship all the points together. 19 remember, particularly in relation to the implied terms,
20 MRJUSTICE FRASER: I'm acutely aware of what the common 20 which I just briefly mentioned this morning, go back to
21 issues were, what my answers were on all of them, how 21 requests for further information in 2017 of what the
22 they interrelated between one another and whether, and 22 Post Office's case actually meant for specific points.
23 if so, how many of them were more or less important than 23 ‘There were two of those in 2017 and the failure to
24 the others. 24 answer them resulted in the Post Office agreeing to
25 MRGREEN: Precisely. I won't labour the point. 25 an order from your Lordship on 2 February 2018, the
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1 MRJUSTICE FRASER: I mean, you can labour it as muchas you 1 second CMC order, ordering them to provide the
2 want, but I don’t think you're going to add to the sum 2 information. They didn’t do so: they didn’t actually
3 of human knowledge, to be honest. 3 provide the information itself
4 MRGREEN: I’m most grateful, my Lord. I will move on. 4 ‘As your Lordship knows from the extensive recital of
5 Your Lordship has the point though. 925 is a good 5 that in our opening and reference back to it in our
6 example of being a bit careful about what they've said 6 closing, that rumbled all the way along, in a way which
7 they won on and what the substance of the finding is 7 we respectfully submit was extremely unsatisfactory,
8 In relation to the NTC signature point, if we just 8 through the provision of the table that wecan just call
9 go back to that, your Lordship already has my 9 up briefly at (H/19.1/1}ina final attempt to get some
10 submissions on the UCTA and the principles being 10 specificity from the Post Office as to what the terms or
11 deployed on SPMC. There is a further reason for that 1 their incidence were.
12 though. 12 I actually prepared this and typed it myself, put it
13 Your Lordship essentially got to the point of being 13 in myself. This was the table offering the Post Office
14 prepared to consider finding for the claimants on the 14 the chance to say what they actually agree in respect of
15 evidence, but was barred from doing so by a Court of 15 each of the terms. I typed it all out, so they all
16 Appeal authority. If 16 needed to do was type in what they said, and I even gave
17 MRJUSTICE FRASER: I then went onto deal with it in case 17 examples, "E.G.", of what I thought their case might be,
18 I was wrong. You could have appealed that point. 18 to
19 MRGREEN: My Lord, yes. 19 MRJUSTICE FRASER: No, but as 1 understand it, apart from
20 MRJUSTICE FRASER: That doesn’t mean the Post Office 20 two of the terms that were agreed, that invitation
21 haven't won on it 21 wasn't taken up.
22 MRGREEN: No, they have won onit. But in terms of doing 22 MRGREEN: What they did was they responded in a very
23 that in parallel and the reasonableness of taking the 23 lengthy document that didn’t condescend to any clarity
24 point at all, which is one of the express factors that 24 MRJUSTICE FRASER: Well, it may or may not have done. And
25 Mr Justice Neuberger, as he then was, identified , it is 25 the Common Issues dealing with implied terms or
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1 incidence of implied terms was, to a certain extent, 1 do ask for indemnity costs for a different period. It
2 entwined within a consequential upon the finding on 2 is highly unusual to have the period for indemnity costs
3 common issue 1. 3 pre-dating a period for standard assessment because it’s
4 MRGREEN: Indeed. 4 normally because something has happened --
5 MRJUSTICE FRASER: But 5 MRGREEN: Indeed.
6 MRGREEN: My Lord, the short point is -- “but” quite a lot, 6 MRJUSTICE FRASER: -- where the conduct after a particular
7 we respectfully say, because if they had in 2017, when 7 date falls to be looked at froma different point of
8 they pleaded these two general terms and we said, “Hold 8 view -
9 ona second, what does that mean for the specific areas 9 MRGREEN: Indeed.
10 we're actually concerned with?", and they said 10 MRJUSTICE FRASER: ~- or of a different character.
aL actually, we agree there were the sorts of obligations 11. MRGREEN: Indeed.
12 your Lordship has found, there may not even have had to 12 MRJUSTICE FRASER: Very unusual to have it the other way
13 bea trial about all that 13 round,
14 MR JUSTICE FRASER: Okay. I have that point. 14 MRGREEN: Yes.
15 MRGREEN: So it was completely unnecessary. We say that 15 MRJUSTICE FRASER: It might be, I suppose, said that
16 that unreasonable conduct goes all the way back -~ 16 conduct was exceptionally unreasonable and out of the
17 MRJUSTICE FRASER: You're moving on toa different point? 17 horm up toa particular date and then there was
18 MRGREEN: Iam. I say it’s relevant to how the trial and 18 a Damascene conversion and everything changed, but
19 the entire litigation was run for the general point 19 1 don’t understand this to be
20 about no discount, but I also say it goes to the 20 MR GREEN: No, we're not saying that.
21 question of the basis of assessment. 21. MRJUSTICE FRASER: No, that’s rather why I'm asking the
22 Because your Lordship has seen we've set out the 22 question.
23 conduct which we rely on in our skeleton argument, and 23 MRGREEN: That's the curious point, quite.
24 your Lordship is very familiar with it all because much 24 ‘The short point is this: that the claimants’
25 of it comes from your Lordship’s own judgment. That's 25 submission is that looked at throughout the overall
97 99
1 at (J1/1/14) and {J1/1/15} in particular of our written 1 period as a whole, the Post Office’s conduct was out of
2 submissions, all the way through to {J1/1/16]. But we 2 the normin the lack of co-operation which the court
3 respectfully say that it was completely unreasonable to 3 would expect froma party in a case like this, in
4 agree to provide information and agree to an order to 4 ‘a number of material respects which we've sought to
5 that effect and then not provide it, with the 5 identify , and from an early stage, and I've given
6 consequence that those matters could not be agreed. 6 your Lordship the example of the repeated requests for
7 All of those offers for them to clarify the 7 further information in relation to those implied terms
8 incidence or the implied terms were made openly, not 8 and their incidence
9 even without prejudice save as to costs. And that goes 9 MRJUSTICE FRASER: Yes, but none of that really jumps out
10 all the way back to 2017. My Lord, that feeds in to 10 at oneas all occurring at or near a watershed date.
a. the -- I think your Lordship described it as a “curious 11. MRGREEN: No, my Lord, we're coming to that.
12 point” in relation to basis of assessment. I’m not 12 So the primary submission is that when you look at
13 going to go through all these points 13 the conduct of the case across the whole piece, you see
14 MRJUSTICE FRASER: "Curious point"? 14 factors justifying an award of indemnity costs across
15 MRGREEN: About budgeted costs and pre budgeted costs. 15 the whole piece. Another example of that is where the
16 MRJUSTICE FRASER: Well, as I understand the situation , 16 defendant does an apparent volte-face at trial, the
17 it’s as follows, and if I’m wrong, correct me. You want 17 seeds of that volte-face are sown notat trial but when
18 indemnity costs up to a particular date -- 18 they take the point originally. So our submission is
19 MRGREEN: My Lord, yes. 19 it’s the assessment across the whole period that
20 MRJUSTICE FRASER: ~ and detailed assessments, subject to 20 justifies an award of indemnity costs, not that the
21 assessment on the standard basis 21 period starts or stops.
22 MRGREEN: Indeed. 22 But what we have respectfully said is that we don't
23 MRJUSTICE FRASER: ~ after a particular date. 23 invite the court to exercise its discretion in the light
24 MRGREEN: Yes. 24 of that conclusion in relation to the period for which
25 MRJUSTICE FRASER: Now, I am well used to and parties often 25 costs were budgeted, because of the certainty that
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1 budgeting is supposed to bring to those costs and to 1 when he does so, he does so inaccurately. Take the
2 avoid the need for disputes on detailed assessment 2 agent point, that the Post Office was somehow the agent
3 ab initio, just to take the benefit of the certainty of 3 of the postmasters: it is obviously a ridiculous
4 the budgeted costs. 4 suggestion. But what's inaccurate is he says it’s
5 So, my Lord, we don’t say it all happens before and 5 a couple of paragraphs. If you look just in his
6 then it stops. What we say is: looked across the piece, 6 closing, it’s six pages: it’s [A/6/205} to [A/6/210} in
7 it should be indemnity costs. But notwithstanding the 7 his closing. In my closing, I don't know, it’s probably
8 justification for an order at that time, we say: given 8 a similar amount; in the opening similarly
9 that costs were budgeted from April 2018 onwards, and 9 So I don't invite you to go through page by page:
10 the certainty that that affords, on balance, it is not 10 it’s impressionistic. But my learned friend isn’t being
11 just and convenient to makea different order because 11 quite straight when he says it’s a couple of paragraphs;
12 your Lordship has already approved a costs budget, which 12 it’s rather more. So you ought to bear that in mind.
13 we came underneath. The cost budget was £3.4 million 13 It is true that if obviously a parallel point is won
14 and we were £3.1 million. So it doesn’t help anyone. 14 then it’s not mechanistic; I accept that, obviously.
15 So it’s not withdrawing from the submission. 15 But my learned friend says in relation to, for instance,
16 MRJUSTICE FRASER: When you say it doesn't help anyone, you 16 the onerous and unusual, it’s all is the same, Well, of
17 mean the cost management order doesn’t help anyone? 17 course it’s not the same because the terms under the NTC
18 MRGREEN: No,no,no, no. If we were to seek to invite 18 are very different to the terms under the SPMC. You
19 your Lordship to make an indemnity costs order, it’s not 19 have to consider each of the terms separately. You
20 going to makea material difference 20 can’t begin to say, as my learned friend does, "Well,
21 MRJUSTICE FRASER: Because you can still 21 it’s all the same’ Clearly it isn’t.
22 MRGREEN: -- such as to justify the waste of everyone's 22 Similarly , although there is some overlap between
23 time. 23 the material one looks at for UCTA and onerous and
24 MRJUSTICE FRASER: Understood. 24 unusual, of course, as your Lordship rightly points out,
25 MRGREEN: So that’s the basis on which that is put. 25 it is a very different test.
101 103
1 MRJUSTICE FRASER: You have, 1 think, dealt both with costs 1 So the points he makes don’t really get him.
2 in principle, percentage reduction and basis of 2 anywhere. One is then left back to the impressionistic
3 assessment. 3 approach that in my submission you should be doing
4 MRGREEN: Indeed. My Lord, I have. Then 4 anyway, and doing the best that we can,
5 MRJUSTICE FRASER: Is that right? 5 If you look at our skeleton at paragraph 23 and
6 MRGREEN: Ihave, exactly 6 following {J1/4/7}, we put some skin on the bones of
‘7 MRJUSTICE FRASER: Right. Well, I would like to hear from 7 whatl have just said. For instance, paragraph 26
8 Mr Cavender about that first . 8 {J1/4/8}, in relation to signature and incorporation,
9 Submissions by MR CAVENDER 9 all the evidence that related to the two NTC lead
10 MRCAVENDER: My Lord on the question of percentage 10 claimants that went to the interview, what they were
11 assessment, this is of course is meant to be 11 told, what they knew, Mrs Dar and Mrs Stockdale, was
12 an impressionistic and to an extent broad brush, but 12 only related to that
13 educated broad brush; educated particularly by the trial 13 So I don’t overemphasise it, but one has to do it
14 judge of course who has just decided the case and who is 14 fairly. We have sought to do that and we've come up
15 intimately knowledgeable about the various issues 15 with a round figure of 30%. You may think that’s too
16 We had grouped at footnote 1, page 7 of my skeleton 16 high or too low. Certainly the idea that it's zero,
17 {J1/4/7}, below 23, those items where the Post Office 17 it’s difficult to understand that submission having been
18 did win, That is an accurate summary. 18 made. Equally, 5%: it’s obviously much more than that.
19 My learned friend, when he talks about the true 19 But whether it’s 25%, 30% or 35%, right-minded people
20 agreement point, when you look at the reference, we're 20 could disagree. I don't pretend that there's a right
21 just talking here about that argumentin relation to 21 answer. This is costs, a discretion. That's really
22 termination for breach, not in a situation where it is 22 what! wanted to say on that.
23 terminated other than for breach. So that’s a bad point 23 My Lord, then going to the basis of assessment,
24 he makes about that. 24 I have to say I’m very surprised that an experienced
25 Again, he goes into certain of these things, but 25 party or team like this would seek indemnity costs in
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1 this case. I say that because the test is a very high 1 Mr Justice Morgan was sayingis that the way you put the
2 one. If you look in our skeleton at paragraph 28 and 2 point may alter slightly because things develop, and if
3 following (J1/4/9} Lord Justice Coulson reminded us of 3 you look at the whole part of this judgment, witnesses
4 that in a case called Hislop. It’s authorities 4 have given evidence, the judge has a certain view: often
5 bundle 2, tab 26 (J7/26/1}. 5 judges will offer — it has been done to me before
6 MRJUSTICE FRASER: 262 6 different implied terms: "How about this one?” You buy
7 MR CAVENDER: My Lord, yes. 7 it or youdon’t, effectively . No one suggests that’s
8 MRJUSTICE FRASER: Yes. 8 wrong or should result in indemnity costs.
9 MRCAVENDER: This is a decision of Hislop v The Board of 9 ‘Then at paragraph 36(e) {J1/4/12} we cite Williams
10 Leleester. 10 v Jervis {7/13/3}
11° MRJUSTICE FRASER: Paragraph 36; is that right? 12 *.. important to bear in mind, firstly, that an
12 MRCAVENDER: Indeed, yes. He gives all the relevant 12 order for indemnity costs should not be made simply
13 authority in 35. (J7/26/14): 13 because the paying party has been found to be wrong or
14 “Indemnity costs are appropriate only where the 14 his evidence has been rejected in preference to that of
15 conduct of a paying party is unreasonable ‘to a high 15 the receiving party”
16 degree 16 So that is the tenor of the law. It has to be
17 So that is the test. 17 something significantly out of the ordinary.
18 We then cite also at paragraph 35 {J1/4/10} 18 What is said against the Post Office here? My
19 Arcadia Group, which is in the bundle at tab 20 19 learned friend says: well, for the whole time, the whole
20 {J7/20/20}. 1 don’t think I need to take you to it, but 20 period of the litigation , he says very boldly, the
21 we extract it at paragraph 35 of the skeleton, where he 21 Post Office behaved in the way he suggests. He gives.
22 says the “weakness of a legal argument” could not 22 very few particulars on his feet. The ones he does give
23 justify indemnity costs unless the argument was 23 are bad ones.
24 “motivated by some ulterior commercial or personal 24 So he says, for instance, in relation to the implied
25 purpose” 25 term debate -- the implied terms were pleaded by us in
105 107
1 And what was said also in Hosking by Hildyard J 1 our original defence: they were necessary co-operation
2 {7/28/16} 2 and Stirling v Maitland. The claimant admitted those
3 “The merits of the case are relevant in determining 3 implied terms were part of the contract. If they had
4 the incidence of costs: but, outside the context of 4 wanted to, at any stage they could have pleaded what
5 an entirely hopeless case, they are of muchless, if 5 they meant, how those implied terms interacted with the
6 any, relevance in determining the basis of assessment.” 6 express terms and what the incidence of those implied
7 Then over the page {J1/4/11}, Digicel. So this is 7 terms were. Had they have done so, we would have had to
8 paragraph 36(b), the decision of Mr Justice Morgan 8 plead to that. At no stage did they do so.
9 §J7/14/11}, where he makes the point that: 9 ‘They say that we didn’t answer their request. We
10 ".. further refinements of the legal or factual 10 did. Look at {B4/3/1}. The fact they don’t like the
11 analysis as the parties deepen their understanding of 11 answer doesn't make it not an answer.
12 the issues and the adoption of new positions in the 12 So that’s the mainone, My learned friend says the
13 light of indications, direct or indirect, actual or 13 whole costs, the millions of pounds of costs in this
14 guessed at, of how the judge appears to be approaching 14 action going on for a number ofyears, because he says
15 the matter... are not particularly unusual in long and 15 we didn't answer an RFI in the way he would like, in
16 complex cases.” 16 circumstances where he could have pleaded terms he
17 That's aimed at the volte-face point 17 admitted no incidence, the court should award indemnity
18 = MRJUSTICE FRASER: It is without doubt sensible or 18 costs throughout. It is, in my submission, nonsensical
19 rather I will put it the other way round. It is not 19 as a submission.
20 sensible for judges to penalise parties who concede 20 We then go to his costs submission at {J1/1/16},
21 points during litigation by saying, "Well, that 21 where he goes from (a) to (h) and lists what he says are
22 justifies indemnity costs", depending upon the nature of 22 grounds for giving indemnity costs. Just look at (d)
23 the point, because otherwise one would hamstring 23 and (e) by way of example:
24 advisers in terms of making sensible concessions. 24 “(e) Its treatment of the Lead Claimants
25 MRCAVENDER: Indeed. AlsoI think the point 25 I assume he's talking about that when they were
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1 employed, the way they dealt with them. Nothing at all 1 though, whatever their reasons for it in this particular
2 to do with the costs of the action in which the parties’ 2 case, to award indemnity costs for one period of time
3 disputes are -- it is really very surprising to see that 3 and standard assessment for another period of time, one
4 written down. 4 would ordinarily look for something that has occurred at
5 "(b) Post Office's approach to agreeing facts, and 5 or about that date that would relate to the conduct of
6 the relevance of evidence.” 6 the paying party, rather just than the date of
7 Well, we did agree a lot of facts. You'll remember 7 a costs -
8 there were schedules of facts agreed as to whether they 8 MR CAVENDER: My Lord, of course, and that happens. Certain
9 were true, admissible, or one of two. Soa lot of work 9 points are taken, or expert evidence, or some particular
10 was done and there was good co-operation in relation to 10 point that played badly, that can be disallowed or you
11 that 11 can’t recover your costs on it
12 Yes, we didn’t agree about the relevance of certain 12 But here we havea blanket for the whole period, all
13 evidence, we applied to strike it out, and your Lordship 13 the costs of the action to date, we're talking about
14 said: well, it may be; you couldn't say it was all 14 here, from the very start of the pleading all the way
15 inadmissible, some of it maybe. You awarded costs on 15 through, subject to a device -- and it is a device, as
16 that application. You can’t then say: well, therefore 16 we explain in paragraphs 28 and following {J1/4/9}
17 that then passes into the costs of the action and 17 hot to have the budgeted costs area looked at because
18 somehow infects that. That would be unprincipled. 18 they think they will do better if indemnity costs aren't
19 The volte-face point, in relation to paragraph (a) 19 ordered over that period.
20 of this: all your Lordship was doing was saying you 20 MRJUSTICE FRASER: Presumably because they don’t have to
21 understood -- in one place you said you thought it was 21 have a detailed assessment, as I understand it.
22 a volte-face; in another place you said: on reflection , 22 MRCAVENDER: Indeed. In my submission it is in principle
23 it is the same point. And maybel didn't put it very 23 wrong and is -- well, it’s obvious what's going on.
24 clearly; maybelean be criticised for that. But this 24 I need say no more.
25 is a complex case, we had our written submissions. To 25 MRJUSTICE FRASER: I don't think you need to say anything
109 11
1 say that, "There should be awarded indemnity costs 1 more about that. Thank you very much.
2 against you for the whole action”, is fanciful really 2 Right. Mr Green, anything in reply?
3 I’ve never heard it in any other case I've been in, 3 Reply submissions by MR GREEN
4 I have to say. 4 MRGREEN: Two quick points.
5 And then we have -- all of this, none of these, 5 Firstly in the Macinnes case at (J7/23/8}. So it's
6 alone or together, begin to pass muster as being able to 6 tab 23 in the bundle of authorities. This is
7 satisfy tests for indemnity costs. That's all I wane to 7 Mr Justice Coulson in Maclnnes v Gross. At 26, the
8 say about it 8 first four lines; he obviously goes on to talk about
9 MRJUSTICE FRASER: Can I just check one thing with you. 9 relevance to interim payments thereafter. But the first
10 ‘The date that Mr Green is taking as a watershed date, 10 four lines :
11 I think -- is it April 20182 1. “One of the main benefits to be gained from the
12 MRGREEN: Yes. 12 increased work for the parties (and the court) in
13 MRJUSTICE FRASER: It is April 2018. Is it 11 April 2018? 13 undertaking the detailed costs management exercise at
14 MRCAVENDER: Itis, and that 14 the outset of the case is the fact that, at its
15 MRGREEN: It’s the 13th. It’s the date up to which the 15 conclusion, there will be a large amount of certainty as
16 cost budget went. We're just saying the ones in the 16 to what the likely costs recovery will be”
17 budget. 17 MRJUSTICE FRASER: But this is on interim payments though.
18 MRJUSTICE FRASER: No, I understand the basis on which 18 MRGREEN: Well, yes, he goes on to deal with interim
19 you've chosen the date. 19 payments, you're absolutely right. But the central
20 MRCAVENDER: Then if you look at the basis of assessment in 20 point, the rationale underpinning the budgeting
21 our skeleton, we outline why they've done this: it’s 21 exercise, we respectfully rely on --
22 a tactical reason, to try and avoid their costs being 22 MRJUSTICE FRASER: That's undoubtedly correct, but it is
23 looked at more carefully: 23 well, I've explored the point with you already.
24 MRJUSTICE FRASER: Well, it depends, doesn’t it, on -- not 24 MRGREEN: Yes. It’s unusual in that respect
25 that it depends on this case. Ona different case 25 MRJUSTICE FRASER: All right.
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1 MRGREEN: The other pointI wish to address very briefly is 1 the very things we've set out, this is ridiculous ”
2 in relation to the implied terms point which my learned 2 My Lord, I'm sorry, we do say that is unreasonable,
3 friend has responded to. There are three points to make 3 as was the pleaded case on special knowledge
4 on that 4 subpostmasters. The seeds were planted when they did
5 The first point is: this is nota criticism that we 5 the pleading; the harvest was taken in the Common Issues
6 are making of the Post Office having madea concession. 6 trial .
7 ‘The criticism is that they didn’t make any concession 7 ‘Those are my submissions.
8 or, rather more particularly, did not actually say what 8 Reply submissions by MR CAVENDER
9 the incidents were for the material purposes of the 9 MRCAVENDER: My Lord, in connection to that, do you want to
10 case. 10 look at (B7/7/13}, where the claimants admitted these
11 The second point my learned friend made was that we 11 implied terms unconditionally. So it's (B7/7/13}. It’s
12 could have pleaded what we said the incidents of those 12 number (2), in brackets:
13 were, and we never did. He's wrong about that, because 13 “(For the avoidance of doubt, the implied terms
14 our case was that our implied terms were either 14 admitted at Defence para 105 are agreed)”
15 free-standing implied terms or incidents of the terms 15 MRJUSTICE FRASER: Thank you very much. Right.
16 that the defendant had pleaded. So we had set them out 16 (3.00 pm)
17 in our generic particulars of claim and they chose to 17 (Ruling awaiting the judge's approval)
18 plead to them in the defence as they did. So he’s wrong 18 (3.08 pm)
19 about that 19 MRJUSTICE FRASER: Iwill put this in writing, but is that
20 The third point is just to invite your Lordship to 20 sufficiently clear for today’s purposes and for drawing
21 actually look at what we did say in the reply, because 21 up the order?
22 it’s not what you have been told. It’s at (B3/3/32} 22 MRGREEN: Yes.
23 I'm obviously aware that the pleading point didn’t find 23 MR JUSTICE FRASER: Right.
24 favour with your Lordship anyway in the judgment. But 24 What is there now? Payment on account and whether
25 actually looking at it carefully, if we start under 25 a detailed assessment should commence now or not?
13 115
1 “Implied Terms" at B.4. If you look at paragraph 58, 1 Submissions by MR GREEN
2 that’s pleading back to 106 in their defence. And at 2 MRGREEN: My Lord, yes. The short point is: those two
3 58.2: 3 points are interrelated. Payment on account would
4 "As to the Defendant's averment, at 4 ordinarily be ordered. As your Lordship observed to me
5 paragraph 106(2), that *many’ of the implied terms 5 whenI referred to the judgment of Lord Justice Coulson
6 pleaded by the Claimants ‘address matters that are 6 in
7 already governed by the [thereto] terms ..”_ the 7 MRJUSTICE FRASER: Which one?
8 Claimant notes the Defendant's refusal to specify which 8 MRGREEN: The one about the benefit of cost budgeting.
9 of those terms are ‘already governed’ by the Defendant's 9 MRJUSTICE FRASER: Remind me of the name.
10 accepted implied terms.” 10 MRGREEN: That was in tab 23, it’s Macinnes v Gross, and it
11 So that’s the first point. It’s not that they're 1 was Mr Justice Coulson, as he then was. It’s {J7/23/8}
12 denying them. They're saying, “They are governed by 12 MRJUSTICE FRASER: Yes, you were taking me to paragraphs
13 Stirling v Maitland and the other term, but we're not 13 I think it’s 26 and 27 together, isn’t it?
14 going to tell you how”. 14 MRGREEN: Precisely.
15 58.3 was the reference to the only example 15 So the two points are that in terms of budgeted
16 identified in the RFI. Then over the page (B3/3/33}, 16 costs, your Lordship effectively knows what they are
17 58.4, they are called out expressly for being evasive 17 already, and my learned friend Mr Warwick is going to
18 this respect. And then 58.5: 18 deal with numbers and calculations, if he may, if that’s
19 "The Claimants aver that to the extent that their 19 helpful
20 pleaded implied terms are ‘already governed’ by the 20 MRJUSTICE FRASER: Yes. So in terms of principle then, you
21 Stirling v Maitland Term and/or the Necessary 21 would like a payment on account; the amount is going to
22 Co-operation Term, these are in substance admitted by 22 have changed slightly , one imagines.
23 the Defendant, contrary to Response 61.” 23 MRGREEN: My Lord, yes. Myllearned friend will --
24 So it was specifically saying, "If you're saying 24 MRJUSTICE FRASER: But you want a payment on account. You
25 there are these overarching terms which already govern 25 also want an order that the detailed assessment be
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1 ‘commenced straightaway. 1 looking in my hard copy document. Just give me one
2 MRGREEN: My Lord, yes. And there is a balance to be 2 second.
3 struck, because if the payment on accountis a very 3 All right, yes.
4 substantial proportion of the costs, the interest in 4 MR WARWICK: My Lord, ifyou'll forgive me, the figures have
5 having a detailed assessment -- the balance to be struck 5 changed by reason of the deduction that you have
6 by your Lordship is different. 6 applied --
‘7 MRJUSTICE FRASER: Right. So when I observed just before ‘7 MR JUSTICE FRASER: I guessed that they would have done,
8 the short adjournment, in a point to Mr Cavender, simply 8 because your figures I don’t think had any adjustment.
9 because he was on his feet, “Is there really any 9 That's not to criticise you: you didn't know if there
10 difference 2°, and he understandably said it’s really 10 was going to be one and, if there was, what it was going
11 a point for you 11 to be.
12 MRGREEN: Yes 12 MR WARWICK: Indeed, my Lord
13. MRJUSTICE FRASER: ~ if you get a payment on account, is 13 MRJUSTICE FRASER: So what are the figures now then?
14 there really any difference? 14 MR WARWICK: In the time available
15 MRGREEN: My Lord, normally if the payment on accountis at 15 MRJUSTICE FRASER: Incurred figures haven't changed?
16 or about the budgeted costs plus a substantial 16 MR WARWICK: The incurred figures haven't changed, no.
17 proportion of the other costs, there may be no 17 I beg your pardon, sorry. ‘The budgeted costs, from
18 justifiable reason to go through the expense of detailed 18 which this is taken, were budgeted at £3,480,382.50.
19 assessment now rather than later 19 MRJUSTICE FRASER: And 3.1 had been incurred.
20 MRJUSTICE FRASER: Right. But Mr Warwick is going to deal 20 MR WARWICK: And 3.1 has been incurred. Actually, on
21 with the figures? 21 instruction, a little over that has been incurred: about
22 MRGREEN: He will deal with the -- exactly. 22 £90,000 more, It has been rounded down for simplicity.
23 MRJUSTICE FRASER: All right. So is there anything else 23 MRJUSTICE FRASER: All right.
24 you want to add? 24 MR WARWICK: I mention that, my Lord, because there is
25 MRGREEN: My Lord, not unless I can help you further. 25 obviously a danger in this process in adding rounding
7 119
1 MRJUSTICE FRASER: Right. I will hear from Mr Warwick on 1 downs upon rounding downs.
2 the figures and then, Mr Cavender, I will come to you 2 MRJUSTICE FRASER: Well, there might be, but I’m afraid
3 about both whether there should be a payment on account 3 that’s the best that anyone can do.
4 and, if so, how much. 4 MR WARWICK: Pausing there for a moment, my Lord, I do also
5 MRGREEN: Thaven't really addressed what it should be, 5 wish to add that of course there’s no difference of
6 because it’s for my learned friend to 6 principle between us about your approach to this, my
7 MRJUSTICE FRASER: When you say "what it should be” ..2 7 Lord, save only that Lord Justice Christopher Clarke
8 MRGREEN: Sorry, the issue of principle beyond just saying 8 observed in Excalibur {J7/22/1}, quite rightly, that you
9 it’s normally made, because of course the burden is on 9 shouldn't be looking to find the irreducible minimum;
10 my learned friend 10 it’s rather based on
11 MR JUSTICE FRASER: Yes, understood. 11 MRJUSTICE FRASER: No, I understand that.
12 Mr Warwick. 12 MR WARWICK: Indeed, my Lord
13 ‘Submissions by MR WARWICK 13 So that figure would fall to £2,790,000 with the
14 MR WARWICK: Yes, my Lord. 14 application of a 10% discount.
15 MRJUSTICE FRASER: Am I right to look at paragraph 74 of 15 MRJUSTICE FRASER: Well, hold on one second. At the moment
16 your costs submissions {J1/1/17}? 16 we're looking at costs from the costs management order
17 MR WARWICK: My Lord, yes, which is in terms the same as 17 date onwards.
18 paragraph 5(a) {J1/3/3}, which I’ ve been working from. 18 MR WARWICK: Yes.
19 MR JUSTICE FRASER: 5(a)? 19 MRJUSTICE FRASER: So that can purely have a percentage
2.0 MR WARWICK: Yes. 20 reduction applied to it
21 MRJUSTICE FRASER: Ithink I might havea different version 21 MR WARWICK: Absolutely.
22 of the document. 22 MRJUSTICE FRASER: ~ because I haven't given an indemnity
23 MR WARWICK: It's found at {J1/3/3}, my Lord, under 23 costs assessment, so there's no detailed assessment.
24 heading A.1. 24 MR WARWICK: Quite. Quite.
25 MRJUSTICE FRASER: No, Ihave it on the screen; I’m just 25 MRJUSTICE FRASER: So what does 3.1 go to?
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1 MR WARWICK: £2,790,000 my Lord. Correspondingly, VAT down 1 MR WARWICK: That's correct, my Lord, yes.
2 to £558,000. 2. MRJUSTICE FRASER: Yes.
3 MRJUSTICE FRASER: VAT to what? £558,000? 3 MR WARWICK: Buile into it though, I have to say, my Lord,
4 MR WARWICK: Correct, my Lord, yes. 4 ‘was an element of rounding down, because how that figure
5 MRJUSTICE FRASER: Yes. 5 has been reached, if I may explain very briefly , is to
6 MR WARWICK: And the allowance for budgeting costs is 6 take the total incurred costs from the costs budget,
7 reduced to £27,900 from £31,000. 7 which was £6,142,540.08, and strip out some things that
8 MRJUSTICE FRASER: That's just a 1%. 8 the costs
9 MR WARWICK: It’s just a 1%, yes. My Lord, you may recall 9 MRJUSTICE FRASER: Well, however it was reached,
10 there is a split approach to that. The initial 10 Mr Warwick, that’s the figures that you've ended up
11 preparation of budgets is subject to a cap of 1%. 11 with
12 MRJUSTICE FRASER: Yes. 12 MR WARWICK: That's right, my Lord, yes
13 MR WARWICK: Further cost management costs, which are not 13 MRJUSTICE FRASER: -- where you explain what the balance
14 insignificant in a case like this -- there have been 14 is, having removed the costs management order budgeted
15 several hearings since April; although 1 should add, 15 costs
16 my Lord, you have made one costs order in respect of one 16 MR WARWICK: Yes.
17 of those hearings. But nevertheless, they are a large 17 MRJUSTICE FRASER: -- and applying 60% to that
18 sum. And just for ease of rounding 18 MR WARWICK: That's right.
19 MR JUSTICE FRASER: Can I just check though: this does not 19 MRJUSTICE FRASER: But your 2.384 takes no account, so far
20 include any of the £300,000 in respect of the consent 20 as I can tell, of any percentage reduction for your
21 order for the recusal? 21 recovery, but you say it does take account of the fact
22 MR WARWICK: Notatall. That's correct, yes, my Lord. 22 you're not going to recover everything ona detailed
23 MRJUSTICE FRASER: Understood. 23 assessment.
24 MR WARWICK: But just making that point good, my Lord, just 24 MR WARWICK: That's right, my Lord. Yes, it does.
25 1% has been applied as a blanket for the purposes of 25 MRJUSTICE FRASER: It does.
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1 estimation, rather than breaking it down. LMR WARWICK: That proposition is correct.
2. MRJUSTICE FRASER: Understood. 2 MRJUSTICE FRASER: But your 2.384 includes VAT on the 1%?
3. MR WARWICK: If] may have a moment to reach a total for 3 MR WARWICK: It does, my Lord, yes.
4 that, now that your adjustment has been added. (Pause) 4 MRJUSTICE FRASER: Is there any reason why you have not
5 1 make that, my Lord, £3,375,900 on the budgeted 5 given me those figures separately? I'm not saying
6 costs element. 6 I need them separately; I'm just curious.
7 MRJUSTICE FRASER: Well, all of those figures can be 7 MR WARWICK: In the skeleton argument, for simplicity, they
8 checked afterwards. But it is incurred costs 8 are there as just figures; but in the correspondence to
9 MR WARWICK: Yes. 9 which it refers, they are set out in a little more
10 MRJUSTICE FRASER: -- up to 13 April 2018, which requires 10 detail .
11 a little bit more analysis, doesn’t it? 11 MRJUSTICE FRASER: Yes, all right. Okay.
12 MR WARWICK: It does, yes. Subject of course, my Lord, to 12 Is there anything you would like to add on the
13 not applying an approach that would look to find 13 figures?
14 an irreducible minimum. 14 MR WARWICK: My Lord, if I could say: in support of the sum
15 MRJUSTICE FRASER: Yes. 15 claimed for incurred costs, as if to stress-test the
16 MR WARWICK: And those have been taken — 16 figure, one could also look at the period of time that
17 MRJUSTICE FRASER: But your total, or the balance, is what? 17 elapsed since the first CMC. For very obvious reasons,
18 It was originally 3.284 and you were looking for 18 what is sought here would go back beyond the first CMC
19 an interim payment of 60% of that -- 19 to the time when, for example, the Common Issues were
20 MR WARWICK: That's right, my Lord. 20 negotiated and agreed and put into an order and so
21 MRJUSTICE FRASER: ~to reflect your recovery on 21 forth. They have been in issue since a very early
22 a detailed assessment 22 stages of these proceedings.
23 MR WARWICK: That's right, my Lord. 23 But what is interesting to note is that under
24 MRJUSTICE FRASER: -- and the fact it’s nota full 24 your Lordship’s costs reporting requirements, first
25 indemnity. 25 imposed in fact by the Senior Master under the GLO and
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1 latterly by your Lordship, there have been letters 1 costs, that would come to just over £5 million, so 5
2 informing of costs updates along the way, and the 2. MRJUSTICE FRASER: No we haven't got there yet. At the
3 increase between the first CMC before you in 3 moment we're at £1,773,810, which I think
4 October 2017 and for 13 April 2018 was roughly 4 MR WARWICK: Yes, my Lord
5 £2 million, and that broadly aligns with the underlying 5 MRJUSTICE FRASER: ~- doesn’t have VAT, does it?
6 figure that’s being claimed here. 6 MR WARWICK: I'mso sorry. I beg your pardon. I will just
7 Wo whichever way one looks at it, there is support 7 add that in.
8 for that figure in round terms, my Lord. 8 MRJUSTICE FRASER: I want to know what the figures are like
9 MRJUSTICE FRASER: So far as your stress test is concerned, 9 with like. I can only compare them if you do them on
10 doesn't there have to be some application to your 10 the same basis.
11 current paragraph 74(b) in the costs submission 11 MR WARWICK: Indeed. So the VAT would be reduced to
12 (J1/1/17}, the version that I’m using, to reflect the 12 £354,762.18. And the 1% budgeting figure --
13 90% point? 13 MRJUSTICE FRASER: That's going to be £17,738, isn’t it?
14 MR WARWICK: On budgeted costs, my Lord. 14 MR WARWICK: Indeed, my Lord, yes. £17,738.10.
15 MRJUSTICE FRASER: No, no, I'm not 15 MRJUSTICE FRASER: I don’t think you need to worry about
16 MR WARWICK: Your 90% that you've just applied in making the 16 the 10 pence.
17 costs order you have, my Lord. 17 So the total of those three is, please?
18 MRJUSTICE FRASER: Right. At the moment, Mr Warwick, your 18 MR WARWICK: The total of the VAT and the 1%, or alll
19 costs, for understandable reasons, have been dealt with 19 underneath that line?
20 post-13 April 2018 because they're subject to the costs 20 MRJUSTICE FRASER: The £1.773 million plus the VAT plus the
21 management order. 21 1%.
22 MR WARWICK: Yes 22 MR WARWICK: Is £2,146,311
23 MRJUSTICE FRASER: And I entirely understand the way you've 23 MRJUSTICE FRASER: All right. ‘Thank you very much.
24 taken me through the figures. You applied a reduction 24 So your submissions seeking payments on account have
25 of 90% to the £3.1 million to get to 2.79; yes? 25 changed, as a result of my 90% ruling, to be £3,379,500
125 127
1 MR WARWICK: Yes, my Lord. Yes. 1 for budgeted costs and £2,146,311 for incurred costs up
2. MRJUSTICE FRASER: Costs incurred up to 13 April, you had 2 to 13 April?
3 taken a balance and you had applied 60%, but there had 3. MR WARWICK: That's correct. So the budgeted cost is in
4 been no 90% analysis because you didn’t know I was going 4 fact £3,375,900.
5 to make a 10% reduction. 5 MR JUSTICE FRASER: £3,375,900? I'm sorry.
6 MR WARWICK: That's right, my Lord, yes. 6 MR WARWICK: Correct.
7 MRJUSTICE FRASER: Did you want to tell_me what the figures 7 MRJUSTICE FRASER: All right. That's very useful. Thank
8 are with the 10% reduction? 8 you very much. I'm now going to hear from Mr Cavender.
9 MR WARWICK: Yes. So the figures 9 Mr Cavender, I wanted to do that in detail first so
10 MRJUSTICE FRASER: Because even the most optimistic counsel 10 you could see what figures are that are being claimed
11 1 don’t think would be maintaining recovery of 1. against you now, as opposed to the ones claimed against
12 an interim payment on account in the same amount as 12 you in the skeleton
13 before they had their costs reduced by 10%, 13 Submissions by MR CAVENDER
14 MR WARWICK: That's well understood, my Lord. Yes, of 14 MRCAVENDER: Indeed. Can we go to my skeleton though,
15 course, 15 because that outlines what we understood was going on
16 So the total of incurred costs that would be said to 16 here and why there are difficulties particularly with
17 be recoverable, but to which I will apply your 10% 17 the approach and the incurred costs
18 reduction, was to be £3,284,835, would now be 18 So we outline at 42(a) and (b) {J1/4/14} what we
19 £2,956,351.50, to which the 60% is applied, leading to 19 understood the position to be. This is before the 10%
20 £1,773,810.90, meaning that the total sought is 20 reductions. But they wanted 100% of budgeted costs and
21 MRJUSTICE FRASER: Can you just give me the product when 21 60% of pre-budget costs.
22 you apply the 60% again, because I didn’t note it down, 22 ‘Then we outline the approach at paragraphs 45 and 46
23 MR WARWICK: Yes, it is £1,773,810.90. 23 (J1/4/15) and we rely particularly , where a costs
24 MRJUSTICE FRASER: Yes. 24 management order was in place for the budgeted costs,
25 MR WARWICK: So taken together with the reduced budgeted 25 that 90% of budgeted costs has been awarded in a couple
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1 of cases. 1 currently in play. We asked: if they want to seek
2 MRJUSTICE FRASER: Yes. 2 these, they ought to produce us with a figure
3. MRCAVENDER: So that is the basis on which we are 3 MRJUSTICE FRASER: Yes.
4 proceeding 4 MRCAVENDER: Without a figure, we can't do it. But that
5 Let's take budgeted costs first. 90% of the 5 was months ago. We still don’t have that figure. We
6 £3.1 million-odd plus VAT gives you the 3.3348 figure 6 record that at paragraphs 49 and 50 --
7 You then have to reduce that by 10% to reflect the ‘7 MRJUSTICE FRASER: Of your skeleton?
8 discount of the success 8 MRCAVENDER: ~ of our skeleton {J1/4/16]
9 MRJUSTICE FRASER: The order I've made this afternoon, not 9 So quite whatto do, it’s very difficult to know
10 the 90%. 10 whether to put anything in here, because we don't want
11 MR CAVENDER: Correct. 11 to guess. But you're going to have to, in my
12 MR JUSTICE FRASER: Yes. 12 submission, if you want to do it ona rough and ready
13. MR CAVENDER: So you need to take 90% of 13 basis, apply some kind of discount to reflect that lack
14 MR JUSTICE FRASER: The 90%. 14 of knowledge, that those costs can’t be Common Issues
15 MR CAVENDER: Correct. So 90% of the £3,348,000, which 15 costs.
16 comes to £3,013,200. 16 MRJUSTICE FRASER: And you'd be happy for me to do that in
17 MRJUSTICE FRASER: So in other words, the figures that 17 an impressionistic rather than
18 Mr Warwick has given me don't take account of the 10% 18 a mathematical arithmetical way, would you?
19 Cleveland Bridge/MacInnes reduction. 19 MR CAVENDER: Well, I'm not very happy about it
20 MRCAVENDER: Correct. 20 MRJUSTICE FRASER: No, no.
21 MRJUSTICE FRASER: And ithas to be done as well 21. MRCAVENDER: I'd rather get the information. I've ask my
22 MRCAVENDER: Indeed. 22 costs junior, who knows about these things, “Come on,
23 MRJUSTICE FRASER: And if it is, budget costs go to 23 can’t wehavea stab at it?", but he's very reluctant.
24 £3,013 million. 24 So that’s where we
25 MR CAVENDER: Correct. 25 MRJUSTICE FRASER: Some account will have to be taken of
129 131
1 MRJUSTICE FRASER: And that extra 90% doesn’t really apply 1 that.
2 to incurred costs up to April 2018 because they're done 2. MRCAVENDER: Or whether you say: well, they've put nothing
3 in the old-fashioned way, which Mr Warwick has explained 3 in to allow you to do it, so you have no real judicial
4 was a 60% reduction, 4 basis to do it. It might seem somewhat harsh, on one
5 MRCAVENDER: My Lord, he does. But the trouble is, and the 5 view: there must be some costs. But I think you should
6 trouble with incurred costs, if you look at 6 be super cautious about it. If you are going to go down
7 paragraphs 49 and 50 of our skeleton {J1/4/16} -- this 7 the route and say, “Well, there must be some costs”, you
8 is a point we raised in our submissions, served some 8 should reduce it by a margin to ensure that you cover
9 weeks ago, but unfortunately it has not been dealt with, 9 this degree of uncertainty.
10 so there’s a hole in the information. If you go to 10 MRJUSTICE FRASER: But remember, this would be a payment on
11 {J1/2/8}, which is our costs submissions, paragraphs 22 1. account of a detailed assessment for costs in that
12 and 23, if you could read those. 12 period, wouldn't it?
13. MR JUSTICE FRASER: Is this the original submissions on 13. MRCAVENDER: Yes, Ithink that’s true. ‘There would be
14 29 March? 14 a detailed assessment in that period
15 MR CAVENDER: Exactly. 15 MRJUSTICE FRASER: Yes. So it doesn’t necessarily have
16 MRJUSTICE FRASER: Yes,I have those. Just give me one 16 potentially unfair consequences, but it has to be taken
17 second. 17 into account in fixing what's a payment on account of
18 MR CAVENDER: So paragraphs 22 and 23 outline that there 18 a detailed assessment.
19 can’t be any costs of the Common Issues in advance of 19 MR CAVENDER: Indeed
20 the Common Issues being ordered. That was ordered on 20 MRJUSTICE FRASER: Understood. All right.
21 25 October 2017. There were quite a lot of costs before 21 MR CAVENDER: The danger is an overpayment that we might
22 that 22 struggle to get back. This is always the problem.
23 MRJUSTICE FRASER: They were ordered in October which year? 23 ‘They have hada fair chance to do this; they haven't
24 MRCAVENDER: 2017. Butall the stuff before that are 24 done it. I’mnotbeing unrealistic about it. But I’m
25 general costs of the action that are not generally 25 not sure that they haven't done that should be visited
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1 on my client, the uncertainty. 1 MRJUSTICE FRASER: I think the real answer is in
2 MRJUSTICE FRASER: Understood. All right. 2 paragraph 25 of that case (J7/23/8}, where it said
3. MRCAVENDER: So [hazard to give you a figure that would 3 “In my view, the ... approved costs budget is the
4 encompass that. 4 appropriate starting point for the calculation of any
5 MRJUSTICE FRASER: No, I understand that. 5 interim payment on account of costs. CPR3.18 ... [if]
6 MRCAVENDER: My Lord, Ihave asked to leave it to you 6 there is an approved or agreed costs budget, when costs
7 to 7 are assessed on a standard basis at the end of the case,
8 MRJUSTICE FRASER: Thank you very much. 8 “the court will... not depart from such approved or
9 Anything else? 9 agreed budget unless satisfied that there is good reason
10 MR CAVENDER: I think that was all that wasin issue, 10 to doso.’ The significance of this rule cannot be
11 wasn't it? 11 understated.”
12 MRJUSTICE FRASER: Yes, it was just to -- all right. Thank 12 MR WARWICK: Indeed.
13 you very much. 13 MRJUSTICE FRASER: However, in this case the “good reason”
14 MR WARWICK: My Lord, might I say one thing as a point of 14 is the fact that I've only award you 90%.
15 principle that has arisen out of that? 15 MR WARWICK: Yes, ina sense the reasoning here is the idea
16 MRJUSTICE FRASER: Ofcourse you can. I was going to come 16 that somehow the seal has been broken. But the point is
17 back to you on that anyway. 17 that my clients have come in at 10% below
18 MR WARWICK: I'm very grateful, my Lord. 18 MRJUSTICE FRASER: No, no, I understand that. I do
19 Reply submissions by MR WARWICK 19 understand that.
20 MR WARWICK: There are just two points here: the Cleveland 20 MR WARWICK: Yes.
21 90% if I can call it that, and then the pre- first CMC 21 MRJUSTICE FRASER: Tharis a point -- I'mnotsure,
22 issue 22 Mr Green, that Mr Warwick is necessarily going to find
23 ‘The Cleveland 90% has not been applied. But 23 it useful to listen to you when he’s supposed to be
24 I should point out, if it hasn’t been seen already from 24 listening to me, but I might be wrong. You can have
25 when my learned leader took your Lordship to the case on 25 a moment in a second.
133 135
1 which it’s based, which was the judgment of, 1 But the essential point is, isn’t it, that in the
2 Mr Justice Coulson in Macinnes, at paragraph 28 in that 2 case of Macinnes the judge was dealing with what the
3 judgment, which is found at {J7/23/8} 3 correct interim order should be on account of costs,
4 MRJUSTICE FRASER: Yes, I have that judgment open, 4 taking into account the costs budgeted figure, where
5 MR WARWICK: It's important to bear in mind in this 5 there had been an order for costs?
6 analysis, my Lord, that the 90% applied by then. 6 MR WARWICK: Yes.
7 Mr Justice Coulson is regarded as the maximum deduction ‘7 MRJUSTICE FRASER: In this case there is an order you get
8 that’s appropriate in a case where there is an approved 8 90% of the Common Issues costs, so there has to be
9 costs budget. 9 an adjustment. That's the "good reason”, isn’t it?
10 The same reasoning was applied in the later case to 10 MR WARWICK: My Lord, that’s certainly the "good reason” to
11 which you have been referred in writing and orally, the 11 apply the adjustment that your Lordship has ordered
12 Cleveland Bridge case {J7/27/1}, where Ms Joanna Smith 12 should be applied. ‘There is no good reason, in my
13 QC, sitting under section 9, followed then 13 respectful submission, to apply a further 10% discount
14 Mr Justice Coulson’s approach pretty much verbatim in 14 or deduction I should properly say on the
15 her judgment. I needn't trouble your Lordship by taking 15 MacInnes/Cleveland basis, my Lord.
16 you through that 16 MRJUSTICE FRASER: I think what you are saying is that the
17 MRJUSTICE FRASER: No, Idon’t think you need to. 17 figures you have given me achieve it because you have
18 MR WARWICK: The point to make here, my Lord, is that my 18 done the 90% analysis that I took you through 15 minutes
19 clients have come in under. So they have come in 19 ago.
20 significantly -- indeed, more than 10% ~ under the sum 20 MR WARWICK: They do my Lord, yes, and for the further
21 that this court has already found to be reasonable and 21 reason that my clients anyway came in 10% under budget.
22 proportionate for the purposes of costs budgeting. In 22 MRJUSTICE FRASER: Iunderstand. All right. So you are
23 my submission, my Lord, there is no basis to apply 23 under budget.
24 a Cleveland 90% reduction in this situation. It would 24 What about Mr Cavender's point? What! will do is I
25 be for little , if anything 25 will just hear from you on this point, then I’m going to
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1 give the shorthand writers a break and then I’m going to 1 I understand on both sides there has been some wobbles
2 ‘come back in. 2 about that over the last few months
3. MR WARWICK: Very grateful. The pre first CMC point 3. MRJUSTICE FRASER: What do you mean by wobbles?
4 my Lord. It is true that at the first CMC before you in 4 MR WARWICK: I'm afraid I don't have full instructions but
5 October 17 5 I do understand there have been some periods of time
6 MRJUSTICE FRASER: There were no common issues, 6 when the parties have not written strictly to the
7 MR WARWICK: The common issues were ordered at that point, 7 letter --
8 but they have an extremely long history my Lord. They 8 MRJUSTICE FRASER: Originally they were supposed to notify
9 go right back to pre-action correspondence. If it 9 me every time their costs went up by £250,000. Then
10 assists the court I can take you to where that is found 10 they were writing so often that that was changed to half
11 in the defendant's letter of response. 11 a million, The most recent letter I received was one
12 MRJUSTICE FRASER: It doesn’t assist me, but I think your 12 from the Post Office which told me thar their costs were
13 answer to the point is what? 13 £128 million, ‘That was earlier this month but it
14 MR WARWICK: My answer to the pointis that on detailed 14 didn’t include, so far as I know, the £300,000 that was
15 assessment, as my learned friends rightly identified in 15 agreed and the consent order for today about the recusal
16 their skeleton, this would be something argued at 16 costs.
17 detailed assessment, but it would be argued very 17 So I’m anticipating another letter very soon about
18 strongly by the claimants too that the Common Issues 18 that and it won't reflect any orders I make today. They
19 were a core feature of this litigation , always have 19 won't be taken into account.
20 been, and that a substantial proportion of pre-October 20 MR WARWICK: I'm grateful my Lord. If I can come good on
21 2017 costs are entirely referable to that element of the 21 that submission by injecting a little more precision
22 case. 22 not -- than your Lordship's summary, mean in the
23 But if it assists your Lordship’s decision-making on 23 submission made so far. Under the GLO the regime
24 this, as I have already pointed out when I made 24 required a statement of costs to be produced shortly
25 reference to a stress-testing process, the increasing 25 before the first CMC. That was produced identifying the
137, 139
1 costs which the claimants have incurred between 1 claimants’ costs at just over £4 million, 4.15 in round
2 October 2017 and the cut- off date for these incurred 2 numbers.
3 costs, namely 13 April 2018, was a whisker over 3 MRJUSTICE FRASER: Yes.
4 £2 million and that £2 million now roughly aligns and 4 MR WARWICK: Through costs reporting letters in the
5 now exceeds the figure that I gave your Lordship of 5 intervening period running up to 13 April 2018 ongoing
6 £1,773,810, which was the 60% discounted figure. 6 costs were reported first at £250,000 increments and
7 Therefore, looked at either way, that figure should 7 I think at the very end, perhaps on the first of the
8 properly be regarded as reasonable and proportionate as 8 £500,000 increments, I'm afraid I"m not sure but 1 do
9 an estimate of Common Issues costs that were incurred as 9 not think anything turns on it.
10 at 13 April. The final point to make my Lordis just to 10 MRJUSTICE FRASER: I don't think either, I only mentioned
a1 repeat again that weare not looking to strip everything 11 it because you mentioned it.
12 out and achieve an irreducible minimum which appears to 12 MR WARWICK: Indeed my Lord. Then when one looked at the
13 be the gravamen of my learned friend Mr Cavender’s 13 cost budget, one sees the £6.15 million total incurred
14 submission that we should have nothing for this period 14 cost figure. The difference between the two is
15 since there are doubts. 15 £2 million. In short, my Lord, the claimants had to go
16 Inevitably, my Lord, there are doubts because we are 16 through £2 million during that period in any case and
17 not at detailed assessment and the production of a 17 that is the figure that in fact exceeds the figure that
18 detailed bill of costs in this will bea lengthy 18 your Lordship has been given as part of my calculation
19 exercise and we are working only with estimated figures 19 after the various deductions today. If your Lordship
20 I have one further point if I may. 20 forgives the convoluted way of explaining that, that is
21. MRJUSTICE FRASER: Yes. 21 my point on it
22 MR WARWICK: My learned leader is right to point out that 22 MRJUSTICE FRASER: Insofar as I understand that, thank you
23 under first the Senior Master's cost reporting regime 23 very much.
24 and latterly your cost reporting regime, information 24 I'm going to rise for ten minutes purely for the
25 about the level of costs has been reported throughout. 25 shorthand writers because they are entitled to a break.
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1 1 will come back in and give you the brief ruling on 1 point that I’masked to point out which is absolutely
2 figures on amount, of payments on account, and then we 2 right is that it includes a significant sum for
3 will deal with the one final outstanding matter which is 3 preparation of the statements of core information which
4 whether there should be a detailed assessment ordered to 4 your Lordship will remember were prepared for each of
5 take place straight away or whether it should wait. So 5 the 550, perhaps 560 at that stage, claimants in
6 1 will come back in at 3.45. 6 considerable detail and at considerable length. That is
7 (3.39 pm) 7 a figure that’s been mentioned in court previously -
8 (A short break) 8 MRJUSTICE FRASER: Therefore, it may not make any
9 (351 pm) 9 difference but I am going to go back to Mr Cavender in
10 MR CAVENDER: My Lord, before you rule on that, can I raise 10 a moment, if I look in paragraph 74 of your skeleton,
11 one point. We can check the transcript to make sure 11 74(a) and (b) reading together has a total figure of
12 I amright. I wasa bit confused about my learned 12 £6.384 million. Now, obviously, there will be some
13 friend's submissions as to the costs for the incurred 13 costs prior to the first CMC thataren't Common Issues
14 period 14 costs.
15 On the transcript at page 143, line 9, it is 15 MR WARWICK: Yes, my Lord.
16 recorded as my learned friend saying that their incurred 16 MRJUSTICE FRASER: But the costs information that you have
17 costs at the date of the first CMC was £4.1 million. 17 already provided to WBD is that 4.1 of the total, which
18 Task: is that right, because if so, that’s a much 18 obviously is going to be bigger than the 3.2 and the
19 bigger problem than I anticipated for that uncertain 19 3.1, 4.1 of that had been incurred as at the date of the
20 period. 20 first CMC on 2 October?
21 MR JUSTICE FRASER: That would be the first CMC in front of 21 MR WARWICK: Yes, my Lord, although of course including the
22 me which was October 22 then estimated costs of the first CMC itself
23 MRCAVENDER: 17. 23 MRJUSTICE FRASER: I understand that, some of those will be
24 MRJUSTICE FRASER: Okay. 24 Common Issues costs and some won't.
25 MR CAVENDER: I don’t know if he misspoke. I thought the 25 MR WARWICK: Thatis right, my Lord.
141 143
1 amount would be very much smaller and so I was being 1 MRJUSTICE FRASER: I understand.
2 quite relaxed about it. If it was £4.1 million of the 2 There you go, Mr Cavender.
3 6-odd and we have no detail about it, that becomes a bit 3. MRCAVENDER: My Lord, I just reiterate the point about the
4 more of a serious problem. 4 uncertainty. We have pointed this out and now we are
5 MRJUSTICE FRASER: I understand. That can't possibly be 5 talking about £4 million-odd. Maybe some of it is
6 right 6 related partly to Common Issues. Even if you take
7 MRCAVENDER: I would not have thought so. 7 £1 million of that, you have £3 million. In my
8 MRJUSTICE FRASER: What was the page of the transcript, 8 submission you should be a lot more careful about that
9 Mr Cavender? 9 element rather than waiving it through on the basis of
10 + MRCAVENDER: Page 143, line 9. It is not a perfect bit of 10 the other amounts we have information about.
a1 the transcript because they have yet to complete it 11. MRJUSTICE FRASER: When you say waiving it through?
12 MRJUSTICE FRASER: Allright. Thank you very much. 12. MR CAVENDER: Making an interim payment in relation to it.
13 MR CAVENDER: Iam sure my learned friend must know what the 13 MRJUSTICE FRASER: Butit is an interim payment -- the
14 costs were at the first CMC because he told us. 14 interesting thing or I don’t know maybe the
15 MR WARWICK: Yes, my Lord,Ido. I'm looking at a copy 15 Post Office will decide they would like to start
16 here. It is not in your bundle my Lord buta copy of 16 a detailed assessment sooner rather than later -- but
17 the statement or cost summary that was produced pursuant 17 for this period it is a payment on account ofa detailed
18 to paragraph 35 of the GLO and it was sent to the 18 assessment.
19 defendant, I believe, shortly after 2 October 2017 when 19 MR CAVENDER: Correct.
20 it was prepared and the grand total is £4,180,803.35 - 20 MRJUSTICE FRASER: Which on the figures that Mr Warwick has
21° MRJUSTICE FRASER: 4-point ..2 We are talking millions? 21 taken me through takes what they say are their common
22 MR WARWICK: Yes, my Lord. £4,180,803.35. 22 issues costs upto that date, multiplied by 60% because
23 MRJUSTICE FRASER: As at October 2017? 23 of his -- let me think of a neutral way of putting it —-
24 MR WARWICK: It included estimated costs for the first CMC 24 “we are never going to recover everything it’s a
25 as well that was then just about to happen. The major 25 taxation point”; to which I then asked him to apply
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1 a further 10% deduction. But you are saying I think 1 respect to mylearned friend, it is a better point by
2 that you don't know how much of those could be 2 reason of that £4 million figure because between that
3 potentially not Common Issues costs. 3 figure and the date on which incurred costs ended on
4 MRCAVENDER: Correct. 4 13 April was almost entirely Common Issues work in the
5 MRJUSTICE FRASER: Up to the date of the first CMC, is that 5 case. Your Lordship will remember that some directions
6 right? 6 have been given for Horizon issues matters --
7 MRCAVENDER: Itis. I have no idea and I shouldn't have ‘7 MRJUSTICE FRASER: That's what you say costs £2 million.
8 an idea frankly given what we said in our costs 8 MR WARWICK: Indeed, my Lord. Infact very little Horizon
9 submissions. 9 Issues work had been done. There had been limited
10 MRJUSTICE FRASER: You don't know the precise figure but on 10 disclosure. My learned leader and my learned friend
11 the basis that there is to be a detailed assessment at 11 Mr Cavender had been ordered to meet to agree some
12 some point, which I haven't yet decided, that will all 12 issues. There had some limited disclosure of dimensions
13 come outin the detailed assessment. 13 documents
14 MRCAVENDER: Ofcourse. It is a timing point but it is 14 MRJUSTICE FRASER: What you says, on the basis of that
15 also a cash flow point and trying to get the money back 15 information you have read out, one, in broad brush
16 and those kinds of issues 16 terms, would take £2 million off the 3.2 and that shows
17 MRJUSTICE FRASER: Understood. 17 about 1.2 of the 4.1 had been incurred at the first CMC.
18 MRCAVENDER: Ifwe just sort of -- back of a fag packet 18 MR WARWICK: Indeed my Lord.
19 approach -- unfortunately we are in here for reasons 19 MRJUSTICE FRASER: Butwhateverit is, this is only
20 that are not due to my client -- even if you did a 20 payment on account.
21 say 1 million odd of them were definitely related to 21 (3.58 pm)
22 Common Issues because they are drafting the statements 22 (Ruling awaiting the judge's approval)
23 of individual particulars ete, you still havea chunk of 23 (4.06 pm)
24 costs there whose ~- the generation of which is at best 24 MRJUSTICE FRASER: Sois the only outstanding point
25 unclear and may not be recoverable at all in this 25 therefore whether there should be a detailed assessment
14s 147
1 process. 1 now?
2. MRJUSTICE FRASER: Just for precision terms, I don’t think 2 MRGREEN: My Lord, I'm not going to invite you to do that
3 this is back of a fag packet. 3 in light of the interim payment ordered.
4 MRCAVENDER: Iris in the absence of information I mean. 4 MRJUSTICE FRASER: Let me ask Mr Cavender.
5 MRJUSTICE FRASER: Well, the information available is, 5 Mr Cavender, do you want one to be ordered now.
6 I think, based on what they have submitted, is that the 6 because unless I order one I do not think the claimant
7 total of their Common Issues costs up to 13 April 2018 7 is obliged to agree.
8 is £3.2 million, That is the extent of the information, 8 MRCAVENDER: We don't want one now, my Lord.
9 isn't it? You are saying there should be a delineation 9 MRJUSTICE FRASER: Therefore it is unnecessary in this
10 within that of costs as at the first CMC because they 10 order to say anything about the time for a detailed
11 can't possible be Common Issues costs? 11 assessment. Is there anything else?
12 MR CAVENDER: Correct. 12 MRGREEN: My Lord, the only thing is the costs of today.
13 MRJUSTICE FRASER: L understand, 13 I don’t know how your Lordship would like to dispose of
14 MRCAVENDER: That's the point and it is a better point when 14 those. I was going to venture to suggest that they
15 you realise at that date there is a 4.1 incurred they 15 should be claimants’ costs in the case.
16 say. So it becomes a bigger point. I thought it would 16 MRJUSTICE FRASER: Well you have not succeeded on
17 bea little local difficulty. It turns out it is quite 17 everything.
18 a sizeable point. in my submission you should reflect 18 MRGREEN: Not on everything, no.
19 that in reducing the interim paymentin relation to the 19 MRJUSTICE FRASER: So why should they be the claimants’
20 incurred costs to reflect that. 20 costs in the case?
21 MRJUSTICE FRASER: I understand. 21 MR GREEN: Because half the hearing was the permission
22 MR CAVENDER: I'm obliged. 22 MRJUSTICE FRASER: Some of them would be costs in an appeal
23 MRJUSTICE FRASER: Thank you very much. 23 if an appeal happened, wouldn't they?
24 MR WARWICK: My Lord, I appreciate you won't want 24 MRGREEN: I'min your Lordship's hands
25 submissions tennis on this. But with the greatest 25 MRJUSTICE FRASER: Well what costs order are you
146
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1 suggesting?
2 MR GREEN: Iwas suggesting claimants’ costs in the case but
3 if your Lordship orders costs in the case
4 MRJUSTICE FRASER: Let me hear from Mr Cavender.
5 Mr Cavender, what do you want to do about costs today,
6 what are you asking me?
7 MR CAVENDER: I rather thought they would be costs in case,
8 that’s what I would expect.
9 MRJUSTICE FRASER: I think the sensible and fairest thing
10 is to make them costs in case.
11 MR CAVENDER: The other thing is the date of payment of the
12 interim payment. Is it normally 28 days?
13 MRJUSTICE FRASER: No, it is normally 14.
14 MRGREEN: My Lord, that is what was agreed with recusal as
15 well
16 MRCAVENDER: Can we ask for 28? I have been asked to seek
17 28 days, so an extra 14 days. I’mnotsure that there’s
18 any real prejudice to the claimants. It is a question
19 of arranging the funds I suppose and talking to our
20 shareholder about it
21 It is only going to sit in the -- this is another
22 point I should raise, it is only going to sit in because
23 they have undertaken to keep it in the solicitor ’s
24 client account. So there’s that point.
25 Allied to that, in my leamed friend's order, so we
49
1 are clear, which is attached to his skeleton, in
2 relation to that he has a recital that the claimants
3 agree to hold and not disperse. I spoke to my learned
4 friend about this, he is happy that that be the
5 solicitors
6 MRJUSTICE FRASER: A fair copy of the order is going to
7 have to be drawn up by both of you reflecting everything
8 1 have done and I was not necessarily going to, unless
9 it was agreed, make recitals in the form sought by
10 either party to be honest because I am going to look at
it the recitals in detail, but you would rather that be the
12 claimants’ solicitors ?
13. MRCAVENDER: Yes, it has to be
14 MRGREEN: My Lord, the claimants were going to hold it by
15 their solicitors retaining it.
16 MRJUSTICE FRASER: So that is a non-point. Time for
17 payment you want 28 days?
18 MR CAVENDER: My Lord, yes
19 MRJUSTICE FRASER: Mr Green?
20 MRGREEN: My Lord, I'm not going to quibble
21 MRJUSTICE FRASER: You are either going to agree 28 days or
22 you would like to stick with 14 and then I will decide.
23. MRGREEN: I would like to stick with 14.
24 MRJUSTICE FRASER: All right.
25 Mr Cavender.
You can have 21 days
eIAHkYOnE
22
23
24
25
WIAHRWNE
©
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR CAVENDER: I'm obliged.
Finally I’m instructed to ask for permission to
appeal against the ruling that costs not be reserved;
just that element. I do so on the basis, really two
bases, one is your Lordship identified a distinction
that applied to group litigation --
MR JUSTICE FRASER: Just before you do this, can I just make
an observation?
MR CAVENDER: Yes.
MR JUSTICE FRASER: You haven’thad my detailed reasons. If
you make this application now your time will start
running to make the application to the Court of Appeal.
I'm very happy to hear you now.
If you wait until you have had the detailed reasons,
then you would be able to make the application in view
of the detailed reasons and your time would then run
from whenever you make that application. But if you
would like to make the application now I will hear you
now.
MR CAVENDER: Itis just a question whether your Lordship is
right about that because you have given reasons, You
are going to give
MR JUSTICE FRASER: All right.
that’s fine.
MR CAVENDER: I'm instructed to carry on with it. Two
If you want to make it now
151
bases, one was the group litigation was different in
some way and my analogy of preliminary issue was not
apposite and was not appropriate. In my submission
there is a real prospect the Court of Appeal may
disagree with that.
Whilst group litigation is a great thing and it gets
Common Issues together and it is a great vehicle and
there are special rules about it, they don’t apply to
whether the incidents of costs should go one way or the
other in advance when that would appear to be dependent
on how you group the issues.
What it will do, if it is right, is it will put
enormous premium in the future on agreeing particular
issues being hived off because parties won't want to
agree say just deciding the question of interpretation
if they think well they might lose on that but they win
on breach.
There will be an unhelpful tension in group
litigation and in people agreeing sensible things if
there is a massive cost consequence depending how you
parcel them. That's point 1.
Point 2 is that your Lordship relied on the Court of
Appeal in the David de Jongh Weill case and relied upon
that. If wecan return to that which is in bundle 1,
tab 7, paragraph 33. The thing about that that
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1 your Lordship certainly emphasised but is important is 1. MRCAVENDER: My Lord that’s absolutely right.
2 that that principle applied, if you look at 33: 2 MRGREEN: I just wantthat clear, It is not a solicitor 's
3 “The fact that only nominal damages are awarded 3 undertaking by them, it is solicitors agreeing to
4 after a single trial of the issues of liability .. ” 4 perform that function at the claimants’ behest.
5 (J7/7/10}. It is envisaging a case where liability 5 MRJUSTICE FRASER: Ifthere’s any wrinkles on the actual
6 has been determined. There has been no liability 6 wording of those important parts of the order that you
7 determined in this case at all, any liability . There 7 can't sort out between yourselves, you can of course
8 has just beena determination of the contract. So to 8 come back and ask me.
9 therefore elide the two and say that’s authority for the 9 MRCAVENDER: My Lord, the final thing, could I ask for
10 situation is, in my submission-- is a real prospect on 10 an extension of time for 21 days from when we get your
11 that and so for those reasons in my submission this is 11 written reasons fo go to the Court of Appeal so we can
12 a case where there is a real prospect. 12 marry up. I have made my submissions based on your
13 Group litigation seems to be on the increase. ‘There 13 summary reasons. They are probably better if I could
14 is a point of principle there about group litigation 14 for the purposes of the Court of Appeal deciding it and
15 costs and whether they in fact -- the way in which 15 the skeleton, because if the skeleton is at the same
16 issues are parcelled can affect incidents of costs and 16 time as the grounds now, if we havea extension of time
17 the policy is: that’s tough because group litigation is 17 for 21 days, when we get your full reasons then that
18 there, it is all about cashflow and funding and that 18 will be procedurally more sensible
19 should take precedence over absolute fairness. That's 19 MR JUSTICE FRASER: Just remind me of the rule?
20 the competition. In my submission that is 20 MRCAVENDER: You can give permission
21 an interesting point and we should have permission on 21 MRJUSTICE FRASER: I know I can extend time I would just
22 it. 22 rather do it by reference to the specific rule. It is
23 MRJUSTICE FRASER: Thank you very much. I'm not going to 23 the same rule that I gave you an extension of time on
24 give you permission. So the order for today will also 24 the
25 say permission to appeal -- I think Mr Cavender you were 25 MRCAVENDER: Itis. It is 52.
153 155
1 just seeking it in respect of that part of the costs 1 MRJUSTICE FRASER: The easiest thing might be to look at
2 order that declined to reserve the costs, is that right? 2 the order where I gave you the extension of time in the
3. MRCAVENDER: That is my Lord but of course the other points 3 Common Issues.
4 are parasitic on that but we don’t specifically say you 4 MRCAVENDER: 52.12.2, my Lord.
5 got anything wrong assuming you haven't reserved costs. 5 MRJUSTICE FRASER: Let me have a look.52.12.2 (a).
6 MRJUSTICE FRASER: The order will have to make reference to 6 MRCAVENDER: Indeed.
7 the paragraph higher up the order where! declined to 7 MRJUSTICE FRASER: All right.
8 reserve costs. 8 MRCAVENDER: We ask for 21 days from the date we receive
9 Anything else? 9 the written reasons.
10 MRGREEN: My Lord, one point of finesse 10 MRJUSTICE FRASER: Extension of time to the Post Office to
11. MRJUSTICE FRASER: Would you like permission to appeal in 11 make an application to the Court of Appeal to 21 days,
12 respect of anything, is that what you are asking? 12 starting with the date upon which the managing judge
13. MRGREEN: My Lord, no, that’s my learned friend’s 13 hands down his written reasons for his costs orders
14 MRJUSTICE FRASER: You are not winning everything Mr Green. 14 today.
15 Are you asking me -- what are you asking me for? 15 MRCAVENDER: Itis on the reservation. I don't know if you
16 = MRGREEN: Iwas just trying to clarify one point on 16 intend to extend beyond that.
17 drafting the order. 17 MRJUSTICE FRASER: Hands down written reasons on his order
18 = MRJUSTICE FRASER: Go on. 18 declining to reserve the costs onan issues trial. So
19 MRGREEN: Inrelation to, our draft of the order envisages 19 that needs to go into today’s order, yes? Everywhere is,
20 the claimants, by their solicitors , holding the moneyon 20 nodding enthusiastically and between you I am sure that
21 account pending determination of the application for 21 you can produce a composite order that reflects
22 permission to appeal to the Court of Appeal. That's the 22 everything. Mr Warwick are you about to ask me
23 issue. It is not in perpetuity, obviously, and that is 23 something?
24 reflected in our order. I wanted to say that clearly 24 MR WARWICK: No, my Lord, just to say yes
25 this open court. 25 MRJUSTICE FRASER: All right.
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1 MRCAVENDER: I'm being asked very enthusiastically 1 INDEX
2. MRJUSTICE FRASER: Yes, and think perhaps wrongly but 2 PAGE
3 I will Let you tell me what you are wanting to ask me. 3. Discussion re housekeeping al
4 MRCAVENDER: Whether we ought to try - and I am not sure 4 Application by MR CAVENDER veal
5 weean do this actually 5 (Ruling awaiting the judge's AD
6 I MRJUSTICE FRASER: Whether we ought to try? approval)
7 MRCAVENDER: And extend because you are going to produce as 6
8 [understand it some written reasons as to why you are Application by MR GREEN 43
9 turning down permission on the main appeal. 7
10 MRJUSTICE FRASER: Correct. Submissions by MR CAVENDER
11 MRCAVENDER: The question is ~ because at the moment we 8
12 are under 21 days starting today for the main appeal, (Ruling awaiting the judge's sr 1
13. MRJUSTICE FRASER: You are 9 approval)
14 MR CAVENDER: The question is whether we can itis possible 10 (Ruling awaiting the judge's A
15 to or whether the court should give us 21 days from the approval)
16 date when you give your written reasons for refusal or qi
17 not. Submissions byMR GREEN soso sn
18 MRJUSTICE FRASER: Ihave already extended you time. 12
19 MR CAVENDER: No, exactly. I’m not sure you can actually Submissions by MR CAVENDER —vesosenonn 102
20 MRJUSTICE FRASER: Go on. 13
21 MRCAVENDER: Whether you can only do it atthe time of Reply submissions by MR GREEN
22 the -- 14
23 MRJUSTICE FRASER: Lean do it but I can only do it within Reply submissions by MR CAVENDER
24 the period prior to expiry. Rather than getting into 15
25 extended tendencious and overly technical debate about (Ruling awaiting the judge's soe S
157 16 approval)
17 Submissions by MR GREEN 116
1 whether it’s expired already or not, 1 would not be 18 Submissions by MR WARWICK 118
2 minded given the two months extension you have already 19 Submissions by MR CAVENDER 128
3 had to further extend time. 20 Reply submissions by MR WARWICK
4 MRCAVENDER: No. The only reason to do it in terms of, 21 (Ruling awaiting the judge's
5 procedure is in terms of trying to marry what you say approval)
6 and make sure 22
7 MRJUSTICE FRASER: I understand. 23
8 MRCAVENDER: But nothing is perfect. 24
9 MRJUSTICE FRASER: The written reasons for refusing you 25
10 permission to appeal have got to go in the form that 159
11 I referred to this morning N460.
12 MRCAVENDER: Quite, which are quite brief anyway. 160
13 MRJUSTICE FRASER: Exactly. All right. Anything else?
14 MRCAVENDER: I donot think so, my Lord, no.
15 MRJUSTICE FRASER: Anything else?
16 Thank you all very much. Until 4 June, although
17 I imagine not all of you will be here then, but that’s
18 when this case will next sit. It is 4 June, isn’t it?
19 MRGREEN: My Lord, yes.
20 MRJUSTICE FRASER: Thank you all very much.
21 (4.19 pm)
22 (The court adjourned until Tuesday, 4 June 2019)
23
24
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a (1) 11824
6205 (1) 1036
6210 (1) 1036
ab (4) 709 71:10 759
1013
able (3) 720 1106
35115
above (2) 49:24 87:3
absence (1) 146:4
absent (1) 38:11
absolute (1) 15319
absolutely (10) 44:17
48:11 85:17 908
92:46 11219 120:21
43:21 1552
accept (8)
25:12,15,18.23 30.24
44:13 75:18 10314
accepted (3) 28.2 85:19
naio
accepting (2) 26:9
9013
accepts (4) 30:9 41:2
78:2 93:10
accordance (2) 21:20
267
accordingly (1) 86:16
account (36) 321. 33:9
39:19 40:2 44:15 722
81.16.17 82:16 63:6
115.24 1163.21.24
1173.13.15 1183
1239.21 12612
127-24 12918 13125
15211,17,17 1355
13634 139.19 1412
144.17 147.20 149:24
15421
accounting (2) 36:22.25
accurate (1) 102.18
achieve (2) 136:17
13812
achieved (1) 48:2
across (8) 24:11 40:15,
69:9 66:11
100:13,14,19 101.6
action (11) 48:7 51:4
62.17 66:18 72:17
108:14 109:2,17 1102
311.13 13025
actual (8) 32:24 89:2
106:13 1555
actually (24) 2:21 48:21
49:24 50:14 52:9
53:1 56:10 72:2
81:18 90:20 91:14
9355 95:22 96:212.16
97:10,11 1138,21,25
119.20 1575.19
acute (1) 59:2
acutely (1) 93:20
add (9) 79:5 83:20
99:17 94:2 117.24
1205 121.15 12412
w0t7
added (1) 1224
adding (1) 119:25
additional (2) 33:12
56.21
‘address (3) 218 113.1
146
addressed (2) 4.25
185
addressing (1) 93:14
adds (1) 89:6
adequate (1) 53:23
adjourned (1) 156:22
adjourning (1) 14:3
adjournment (2) 83:12
urs
adjustment (4) 1198
1224 1369.11
admissibility (2) 33:20
357
admissible (1) 109.9
admissions (1) 55:7
admitted (6) 53:28
1082.17 11422
1153014
admitting (1) 56:19
adopt (1) 66:20
adopted (1) 71:21
adoption (1) 106:12
advance (3) 15:7
130:19 152.10
advanced (1) 50:12
advances (1) 867
advancing (1) 36:18
adverted (1) 5:7
advisers (1) 106.28
advising (1) 47:6
affect (5) 62:4 66:14
718 93:6 153:16
affords (1) 101.10
afraid (3) 120:2 239.4
1408
after (10) 1:24 5:25
8.17 1023 78:12
98:23 99:6 140:19
142319 1534
afternoon (5) 831.8.24
92141299
afterwards (1) 122.8
again (13) 15:5 1917
26:16 27:8 30:10 31:3
52:92 55:21 63:13
805 102.25 126:22
13811
against (13) 43:20
44:12 4911 501
52:22 66.24 677
7435 107.18 10:2
126.1111 1513
agency (3) 29:19 37.13
6128
agenda (5) 1:4 11:23
1222 43: 81:10
agent (4) 30:7 87:7
1032.2
agents (2) 2922.25
agentsbranch (1) 29:18
ago (4) 6:12 1309
1315 13619
agree (15) 10:6 73:4
78:24 876 96:14
97:11 98:4,4 109:7.12
147.11 148°7 150:3.21
15215
agreed (17) 5:11 1222
17.17 24:22 277
56:22 7513 96:20
98:6 1098 11514
12420 135.69 139.15
149.14 1509
‘agreeing (6) 22:7 95.24
1095 152:13,19 155:3
‘agreement (6) 13:5
22:21,24 90:17 91:12
302:20
ahead (1) 77:20
‘aimed (1) 106:17
akin (3) 26:1 61-10 649
aligns (2) 125.5 138-4
alleged (1) 38:12
allied (1) 149:25
allocated (2) 68:17 76.4
allow (2) 10:11 1323
allowance (1) 121.6
allowed (2) 67.3.6
allows (1) 4:4
almost (2) 53:13 147-4
‘alone (1) 1106
along (5) 39:9.25 65:18
96:6 125.2
alongside (2) 27:15
5019
already (22) 8:23 516
56:3 696,18 91:10
92:22 949 101:12
31223 1147,9.20.25
16:17 133:24 136.21
337-24 14337 15718
156:1.2
also (26) 25,7 38,12
44 58 127741 1419
35a 17:14 222257
415 763 78:2 99:6
97-20 10518 1062,25
116:25 120:4 124.16
145.15 153.24
alter (4) 25:17 625
64101072
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Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
POL00042714
POL00042714
May 23, 2019 Alan Bates & others v Post Office Limited Day 13H
batches (1) 54:3 1821 21:18 26:3 282 ia 727.34 cites (2) 49:25 52:23, 97:25 129.16 105.15 11:5,
bates (4) 31:10.15 297.9 45:21 79:12 78:6.10,12,18 civ (1) 83:19 coming (8) 6:911:9.14 I conducted (2) 46:1,19
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75:14 91:3 103:12
107-11 1345
becomes (2) 142:3
146.16
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59:14 66:4 €3:14,21
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10320 1106
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50:24 81:7
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behaved (1) 10721
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88:14.15 946.1013
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114.7 1256 1280
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15214 157.
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benefits (1) 122.11
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120:3 145:24
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103.22 1206 125:3
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14318 146.16
bit! (2) 336.18,
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binding (1) 88:12
bit (11) 255 33:22
36:16 62:2 67:4 758
94:6 120.11 141.32
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121.25
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14025 1418
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broadly (1) 125:5
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chose (1) 123:17
chosen (8) 7:34.14
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chronology (5) 421
67,4191 1017
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circumstances (8) 4:7
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Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
POL00042714
POL00042714
May 23, 2019 Alan Bates & others v Post Office Limited Day 13H
1433 130:2,6,11,19,.21,25 I damage (3) 65:13 75:10 I 50:251:3,11 521 86:10 1515 156:13,17 157:9
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employees (2) 29.25,
308
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encompass (1) 1334
Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
May 23, 2019
Alan Bates & others v Post Office Limited
POL00042714
POL00042714
Day 13H
end (9) 9:15 33:3 57:23,
61:16 761,2.13 1357
407
‘endeavouring (1) 41:12
ended (4) 685,10
123101473
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53:16
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‘enormous (2) 68:17
15213
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censure (1) 1328
enthusiastically (2)
15620 157:1
entire (1) 979
entirely (7) 4:1. 78:17
89:14 1065 125.23,
137.21 1474
entitled (4) 52:1 53:22
58:21 140.25
entitlement (1) 66:15
entwined (1) 97:2
‘envelope (1) 64:12
environment (1) 18:20
envisages (1) 154:19
envisaging (1) 1535
equal (1) 77:15
equally (1) 10416
error (5) 25:1 35:8,22
39:18 40:4
errors (6) 33:24
34:14,28,23 35:16
25
‘essential (2) 26:24
1361
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87:10 94:13
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estimated (3) 138:19
142.24 143.22
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58:5.9,23 594,11
65:16 69:19 74:23
79:17 9626 97:12
96:9 126:10 1446
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67:23 88:21 891
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excalibur (1) 1208
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finds (1) 175
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flow (6) 53:23 545
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forwarded (1) 2:23
foskett (1) 70:8
Fought (1) 56:23,
found (13) 5:6 26:16
36:6 75:9 87.2 91:14
926 97:12 107.13
118.23 1343.21
13710
four (6) 43:7 51:27
83:9 24:5 1128.10
frankly (1) 1458
fraser (487) 1:4,8,1216
2:14.95 4:6,14.20
5:17.22 66
7:37.13,19.24 88,16
9:412,26,19,21,
10:10,13 115,18.21
321,20
13:1,12,15,19.24
141,6,9,1318
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19:5,21,24 20:1,4.21
21:1,6.10,13.23,
22:4,10,13,18 23:2
24:6,12.21 25:6,22
26:19
32:7,13,16,19,20
38:2,7,16,21
34:2,7.13,20,22
35:1,12,15,21.25
36:2,11,15.18,24
373,24
38:9,14,19,21,23 39:3
41:10,15.18,22
42:9,15.22 43:1,58
44:8,12.20,
45.2,69,11.13 43.10
47.2,12.21,25
483,147.23
49:19,21 $0:20,25
51:5 52:4,8,12,15,18
53:1,5,8 54:9,11,18
55:1,24 87:7,10,17,25
58:3,5,9,24 59.14.03,
60:1,4,7,16,18,21.23
61:2,7 62:21 632.5
68:6,10,19 69.10.13
70:3,16,18,21 71:6
72:8,10,12,19
73:1,3,37,22
74:3,14.19,22
75:4,1823 766,10,18
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79:2,4,15,19
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03:3.8,10,14
84:3,7,10,15,19.23,
85:11,14.19,28
87:4,7.24
98:3,8.14,16.22
89:17,20
90:2,10,18,24
92:3.9,28,21,23,
92:2,9,13,20
93:4,10,16,20
94:1,17.20 95:4,7,14
96:19,28 97:5,14,17
98:14,16,20,23,25
99:6,10,12,15.21
00:9 101:16,21,24
102:1,5,7 105:6.8,11
106.18 110.9,13,18,24
1112025
112:17,22.25
115:15,19,23
1167.9,12,20,24
117,7,13.20,23
118:1.7.13,15,19,21,25,
1197,13.15,19.23
120:2,11,25,19.22,25
1213,58,12,19,23,
122:2,7.10,15,17.21,24
1232,9.13,17,19,25
1242.42
1259,15.18,23
126:2.7,10,21,24
127.2,5,8,13,15,20,23
12857
129:2.9.12,14,17.21,23
130:1,13.16,23
131:3,7.16,20,25
132:10,15,20
1332.5.8,12,16
134417
135,13.28,21
1367,16,22 137-612
13821 139.38
140;3,10,22 141:21,24
142.5,8,12,21,23
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144:2,11.23,20
1455,10.37
1462,5,13,21,23
147-7.14,39,24
148,4,9,16,19,22,25
1494.93
150.6,16.19,21,24
151:7.10.23 153:23,
1546,11.14,18
1555,19,22,
156:,5,7,10,17,25
157:2.6,10,13,18,20,23
1587,9,13,15,20
fraud (1) 74:17
free (1) 58:22
freedom (1) 15:21
freestanding (4) 26.15
48:1,6 1135
freeths (3) 2.23 5:2 68
friday (2) 9:17.19
friends (8) 10:6 23:5,
50:21 6415 137.15
1d3 14925 154:13
front (1) 141:21
full (3) 122:24 139:4
15517
fully (1) 53:22
function (1) 15:4
fund (2) 72:1 75:6
funded (2) 58:20 59:3,
funders (8) 58:22
59:4,19,22 71.24.25
72.20.23
funding (1) 1538
funds (1) 149.19
further (14) 16:21 59:20
83:1 94:11 95:21
100-7 106:10 117:25
121:13 136:13,20
138.20 145:1 158:3
furthermore (1) 21:25
future (7) 40:23
62:4,10,11,24 73:12
152113
8 (2) 35.24 396
gained (1) 11211
sgome (4) 61:22.23
71:8,20
sgarr (28) 15,721.15
23,16 3:2 412,19.21
5:21,23 6:10
7:4,8.17.19,23 86.15
9:3,10.14,18.20
3134.17.20
agave (8) 5:23 37:10
83:16,21 96:16 1385
155.23 156.2
seas (1) 16:18
sseneral (5) 5324 72:12
978,19 130.25
generally (2) 53:5
130.25
generation (1) 145:24
generic (3) 48:12 54:1
337
germane (1) 24:12
set (19) 20:11 24.13
4730 71:11 73:36
7633 79.7 89.24
969 1081 11733
125:25 131-21 132:
136:7 145.15
155:10.17
gets (4) 29:21 67:21
71.20 1526
setting (2) 80.2 157.24
siambrone (1) 52:21
sive (31) 6:10 174
20:16 25:25 299,926
30:8 31:3 40:14,25
415.19 46:18 53:1
8025 8621 90:18
93:9 10722 119:1
12621 130:16 1333
agra 1an.a 151.22
13:24 155:20
157.1516
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2031 27.17.18
37.14.18 38.13 39:16
65:4 66:3 92:23
93:1,14 1005 1018
107:4 120:22 1245,
129:16 136.17 140:18
145.8 147:6 151:21
1582
sives (4) 51:15 105:12
10721 1296
siving (4) 5:15 20:13
83:5 108:22
slo (6) 745 799.24
124-25 130.23 142.18
slobal (1) 92.24
goes (13) 50:24 51:1.13
52:13 708 956
97:16,20 98:9 102.25
108:21 112.818
soing (82) 1:14 5:17
76 8:24 10:17
315,17,23 1319
14g 15:15 19:7 26:18
298,15.16 31:5 38:4
415,19 429 43:15
Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
May 23, 2019
Alan Bates & others v Post Office Limited
POL00042714
POL00042714
Day 13H
44:19 46:25 47-21
48:20 53:9 55:21
61:25 62:10,16 65:9
716 73:15
80:3,23,21.25,25 81:8
03.22.22 94:2 98:3
101:20 104.23 108:14
1123 11416
13617,21 11720
119:10,10 123:22
1264 127.13 1288.15
13111 13266 13316
135.22 13625 137-1
14024 1439.18
14424 1482.14
149.21,22
1506,8,10.14,20.21
15122 15323 187.7
gone (7) 1113 1214.22
16:21,22 19:12 006
good (43) 93,10
1512.19 16:4,16.24
y7-11.12 21:21,25,
23422 24:18
25813,16.26 268
27:1 265,8,10,1625
2916 40-11 41:4 49:34
54:22 61:12 65:19
69:4 90:6 94:5 109-30
121.24 1359.13
1369.10.12 139:20
goods (2) 86:22 91:10
govern (1) 11425
governed (5) 90°5
1147,9,12.20
sand (1) 14220
srappled (1) 27:11
grateful (13) 4212 11:20
13:25 14512 42:10
48:16 52:16 60:23
85.2 94:4 133:18
1373 139:20
sgravamen (1) 13813,
sreat (3) 65:9 1526,7
greater (2) 59:20,20,
greatest (1) 146.25
sreatly (1) 9:2
seen (203) 9:24
121124
1210,16,21
13:9.16,18,23.25,
1458.12 1611.19
193 427,10
43.2360
44:18,21,24
455,102.14
46411 478.1423
48:,4,16,21.24
4920.28 50:21 51:16
527.113.1619
53:3,7.9 5410,12,19
553.25 57:6.11,28
58:1.4.8,15 59:1,17.24
60:36,9,17.20,22 611
7:7 8023
81:11,13,15,17,21,25
2228.25 632.79
843,4,5,6,12,16,21,24
85:12,15,23.25
87.68.25
885,9,15,17,23 89:19
90:1.3,12.20.25,
91'6:10,19.22
921,310.19
933,7.13.18,25
94:4,19,22 95:6.9.15
96:22 97:4,6,15,18
98:15,19,22,24
995.9,11,14,20,23,
100:11 101:18,22,25
102446 110:10,12,15
1122,3,416,24 1131
11522
116:1,2,8,10,14,23
1172,12,15,22.25
1185.8 135.22
148:2,12,18,21,24
149.24
150:14,19,20,23
154:10,13,14,16,19
1552 15819
1596.11,13,17
sreens (1) 77:25
greenwood (1) 49:18
ross (2) 112.7 11610
ground (11) 33:36
347,10 368,16 37:15
39:20 4017 41:1
7913
grounding (1) 17:6
rounds (42) 3:12
14:16,20,21 15:7 25:2
32:14,15,17,21.24
33:1,17,23,28,25
34:11,13,17,23
35:6.9.11.13,22
36:3.11,13,19.19,21,23,
374,78 39.21 406
41:12 424 10822
15516
group (55) 48:67
5238.19
53:6.13,15,16 54.23,
556 56:14,18
579,21 58:13 611
63:9 64:13
68:2.5,7.14,20
695,712.17 703.10
723417 73:23 74.23
76:11,12,18,20.22
77:9,10,1216,22 787
0:11.15 105:19 151:6
1521,6,11,18
153131427
grouped (2) 14:21,
10236
srroups (1) 15:22
guess (1) 13112
guessed (2) 106.14
1197
gun (1) 15:25
cr
h (@) 208-21
1911 (1) 96.9
hhadnt (4) 24:16 38:5,15
687
half (3) 89:23 139:10
148.21,
hamstring (1) 106:23
hhand (1) 15:20
hhands (3) 148.24
1563.17
handy (1) 50:18
happen (6) 6:16 62:4
733 768 82:12
142.25
happened (6) 2:21
617,19 10:12 994
148.23
happening (2) 416.16
happens (6) 33:3 46:24
68:20 69:7 101:5,
m8
tnappy (4) 131.1619
150:4 151.13
hard (8) 13:10.11 189
3921 5018.20 914
usa
hnardcopy (1) 18:12
hharsh (1) 132.4
hartley (1) 59:5,
hhartleys (2) 59:8,16
hnarvest (1) 1155
hhasnt (4) 6:17 64:19
80:15 133:24
trate (1) 43:24
hhavent (18) 28 59:15
(65:16 68:20 75:20
94:21 95,7 1165
119:15.16 120.22
127:2 1223.25,
145:12 11:20 154.5,
having (11) 8:3 20:11
238 2912 23:20
65:23 90:15 104.17
113.6 1175 12814
hazard (1) 1333
head (3) 35:24 39:4
8614
treading (8) 13:16 54:20
35:22 116.24
hneadings (1) 43:17
hhear (9) 60:22,23 1027
18:1 126:8 136:25
349-4 151.1318
hheard (2) 66:28 1103
hearing (4) 3:3 5:5.25
148.21
hearings (3) 65:3
321.1517
heart (2) 26:25 296
help (6) 16:9 33:21
301:14.16,17 117.25
helped (1) 2912
helpful (3) 3:14 806
n619
helpline (2) 37:17 36:20
heralded (1) 90:6
here (35) 1:9 214.16
33:0 1612 23:36
26:19 28:3 40:17.18
55:21 64:20 66:6
7034 712 738 75:13
7727822 79:13
302:21 107.18
3112.44 124.18
125:6 128.16 131:10
133:20 13418 135.15
42:16 145.19 158:17
hhes (10) 60.24 69:14.25
714 82:19 108:25
113:13,16 131.28
135:23
hesitate (1) 7:24
hesitation (1) 51:24
higing (1) 1:7
high (5) 36:25 46.17
104:16 105:1.15
higher (1) 154°7
hhightevel (1) 40:10
highly (2) 4:14 99:2
bildyard (1) 106:2
int (2) 65:4,17
hinting (1) 69:8
histop (2) 1054.9
history (1) 137.6
hived (1) 152.14
hhold (7) 30:2 59.14
73:1 97:8 120.15
1503.14
holding (3) 29:21 31:10
154:20
holds (1) 73:10
hole (5) 57:3 78:19
79:18.19 130:10
holiday (2) 7:69
hrollander (1) 2312
bhonest (3) 18:24 94:3
150:10
honesty (2) 16:34
honour (1) 66:25
hope (1) 4:22
hoped (1) 6.24
hopefully (2) 19:19
47:23
hopeless (1) 1065
hoping (1) 7:9
horizon (6) 10:24 144
18:19.24 14768
horizons (1) 3:14
hhosking (1) 106.2
housekeeping (2) 1:3
1593
hovering (1) 91:23
however (7) 4:14 11:12
82:14 69:8,11 1239
135.13
hhuge (2) 15:6 4020
human (1) 94:3
hypothetical (3) 56:6
9:20.23
(ay5e
i () 131.21
idea (5) 26:21 104.16
13515 1457.8
Identified (6) 45:24
8355 9425 114.16
13715 1515
identifies (1) 31:18
identify (4) 15:22 85:7
87:6 1005
identifying (2) 26:22
139.25
ie (1) 61:24
it (1) 26:24
itkerler (3) 17:25
22817
iM (2) 4:22 64.24
fm (114) 1:4 2:36
410126147513
9:4,25 11:27,20 13:25
141215 1515 168
19:7,10 2423 26.19
3213.16 3416.17
37:4 38:14 42:14,19
42,9,10 43.5,
44:9,12,20 473
48:16,17 52:16 54:19
55:20 61:25 63:1 70:2
70.12.17 73:18
746 75:18,23,25
76:12 77.24 79:20
90:3,16,20,21,23,25.25
81:8 €2:16,19 83:2
5:12 06:4 87:6 91:4
93:14,20 94:4
98:12,17 99:21 108:24
113.23 115:2 13825
120.2 1245.6
125:12,15 1276
1285.8 13119
132,24,24 1338
135:21 136.25 137:1
13944,17,20
40:8 8.24 142-15
143:1 146.22 148:2.24
149:17 15020
381:1,2,13,25 15323
17.119
imagine (6) 1:13 2.14
67 11:15 63:25
158:17
imagines (1) 16:22
immediacy (1) 12:21
Immediate (2) 51:21
669
immediately (2) 2:23,24
impact (3) 59:2 78:25
207
Implement (1) 69:11
Implication (2) 15:12
16:23
implicitly (2) 31:25
43:21
implied (36) 16:16,18
27:8,13,22
28:4,4,22,13,20
55:14,16,17 87:2 906
95:18,19 96:25 97:1
98:8 1007
107:6,24,25 108:3.5.6
113.2,14,15
114:1,5,10,20
115:11,13
imply (3) 16:5 27:1. 287
importance (1) 49:13,
Important (14) 45:23
50:11 51:15 53:10,20
63:24 64.20 73:18
86:6 93:23 10711
1345 1531 1556
imposed (1) 124:25
Imposition (1) 28:5
impressionistic (4)
102:12 103:10 104:2
117
improper (1) 4:11
inaccurate (1) 103:4
inaccurately (1) 103:1
inadmissiilty (1) 36:9
inadmissible (3) 32:23
35:5 10915
Inappropriate (2) 53:5
56:5
incidence (15) 49.9
50:6 55:17 62:5,15
63:21 6411 71:8
96:11 97:1 98:8 100:8
106:4 086,17
Incidents (6) 28:4
113:9,12,15 152.9
15316
include (4) 79:21 81:6
321:20 139:14
included (2) 20.13
4224
includes (4) 32:3 61:19
1042 1432
including (3) 83:4.5
343.21
incorporated (4)
31:18.19 32:5 88:10
incorporation (2) 31:16
1088
incorrect (2) 11:11
835
increase (2) 1253
153:13,
Increased (1) 11212
increasing (1) 137:25
increments (2) 140:6.8,
incurred (25)
119:15,16,39,20.21
1228 1236 124.15
3262.16 1281.17
1302.6 138:1,2.9
14013 141:13.16
143:19 146:15,20
737
indemnity (26)
57:12,13,35 81:22
62:6 96:18 99:1,2
100:14,20 101:7.19
104-25 105:14.23,
106:22 107:8,12
308:17,22 1101.7
3112.8 12022
12225
independent (2) 35 4.2
index (1) 159:
Indicated (1) 5:9
indicating (1) 5:2
indications (1) 10613
indirect (1) 106:13
individual (15) 54:3
73:25 74:10,19,25,
75:7,11,12
76:3,16.17,24 7816
79:10 145:23
individuals (1) 74:24
inevitably (2) 56.15
138.16
infects (2) 40:12 109.18
infer (1) 39:2
infers (1) 39:13
influence (1) 78:20
inform (2) 3:11.20
information (17) 10:19
33:13 95:21 962,3
98:4 100:7 13030
33121 138.24
1433.16 14:10
146:4,5,8 147.15
Informative (1) 23:10
Informing (1) 125:2
Initial (1) 121.10
initiative (1) 509
initio (1) 1013
inject (3) 16.28 17:12
2017
injected (2) 22:1.1
injecting (1) 139:21
Injustice (7) 58.17.19
59:6,8 60:10 72:5 735
insignificant (1) 121.14
insofar (2) 11.5 140:22
Instance (4) 68:3
103:15 106:7 107.24
instances (2) 21:18 26:3
instants (1) 287
instigated (1) 3:23
instructed (3) 6:14
1512.25
Instructing (3) 5:1 9:14
456
instruction (1) 129.21
instructions (4) 36
941,12 1396
instructive (3) 49:24
52:20 56:12
intend (2) 15:8 156:16
intended (1) 2016
intending (2) 6:25 36:4
interacted (1) 1085
interdependent (1) 90:4
interest (2) 40:23 1174
interested (1) 37:4
Interesting (4) 23:10
108.28 144:26 155.22,
Interests (1) 1:16
interfere (1) 64:17
interim (16) 44:5
463,20 47:6
3129,17,18 122.219
126:12 135:5 136:3
148:12,13 46:19
8:3 149.22
intemet (1) 18:22
interpretation (3) 33:10
67715215
interrelated (2) 93:22
1163
interrupt (1) 43.26
intervening (1) 140.5,
interview (1) 10410
interviews (1) 36.6
intimate (1) 38:25
intimated (1) 82:21
intimately (2) 39:22
10235
into (31) 423.137
155,18 16:26 17:12
237 27.6 324,
339,13 3919 402
4425 53:9 559
722,21 78:9 80:6 62:3,
87:5 102.25 109.17
128:3 12420 1327
1364 139:9 15619
15728
introduced (1) 33:13
introductory (1) 32:22
invest (1) 59:20
investigating (1) 76:15
investment (1) 59:21
invitation (2) 2:17
96:20
invite (7) 85:2 9012
100.28 101:18 103.9
11320 148.2
invited (1) 92:5
(1) 9:25
fnvoke (1) 2419
fnvolves (1) 26:12
involving (2) 22:20
866
lrredueible (3) 120:9
y2214 13812
lnrelevant (5) 10:23
init
Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
POL00042714
POL00042714
May 23, 2019 Alan Bates & others v Post Office Limited Day 13H
111 3969.19 sana j7161 (1) 66:23 keen (1) 15:19 legislation (1) 89:11 Tittle (10) 23:5 33:22 137.23 139:22 148.24
ievespective (1) 3:6
isnt (20) 16:12 24:22
32:23 38:7 43:25
45,2 57-25 59:6 71:2
73:9 7720 05:28
103:10,21 116:13
127.13 136:1,9 1469
15818
Issued (1) 220
Issues (132) 29 3:25
10:24 12:6 14:47,23
17:22 18:19,20,28
191.3 248
29:10,13,17 31:20
32:0 348,11
379,120.20 39:6,17
4341245 4413
46:24 48:12,12,19
495,13 5421
55.67.83
56:15,18,20.21,22
57.19.22 61.67.30
64:12.9.920
65:22,15,16 6616
673,17,18.22
62:15,22 69:20
70411 71415 745,
75,8 7623
79:9,10,14.22.25,24
80:17 84:10 87-4
89:22,23,24
903311,14 917
925,17 93:2.21 95:18
96:25 102.5 10612
1155 12419
1301920 131.16
1368 1376.78
1369 143:13,24
1446622 145:3,16.22
1467.11 14746912
1527,21,14 153:4.36
1563.18
item (3) 43:1 47:18
e2a3
items (1) 102.27
its (120) 5:1 64721,
155 16131318
175192114
23,25,22,22 265,25
28:25 3147 3201
33:9 35:19 36:9 37:8
42.15 43:22 44:23
466,7 48:6,10
49:20,24 50.11 53:10
56:18 978 59.17.17
60.214 61:10 625,35
63:13 65:14,17 69:18
702 71:3.21 7221
733.20 746 758,15,
7678.10.13
7932,13,19 6113
s2.18,19
859.16.16.17 866
87:14,21,22 89.10.22
905 95:12 97:18
98:17 99:3 100:19,23
101:5,19
103:4,66,7.10,11,12.14
104:16,17,18,19 105:4
108.24 110:5,15,21
11123 1125.14.24
11322,22 11411
116:10,11,13 117.10
1186,9,23 10:10
1219 122.24 131.9
1341.5 144.26 15821
itself (6) 5:6 16:24
51:14 6425 96:3
143.22
ive (12) 24:7 91.25
92:22.23 1005
1103,3 112.23 11818
1999 131-21 135:14
(5) 18:12,16.25 233,
1061
juin (a) 962
jUILS (1) 98:1
jIN16 (2) 98:2 108.20
jULAT (2) 118.26 125.22
119 (1) 60.24
123 (2) 48:25 49.1
5126 (1) 48:25
128 (1) 13021
133 (2) 116:16,28
135 (1) 46:5
ji4to (1) 105:18
ju4t (1) 1067
sana (1) 107.9
juss (1) 534
juaa (1) 128.28
ju4ns (1) 128.23,
j1416 (2) 120-7 1318
143 (1) 50:23
JUAT (4) 43:25 91:1
10217 1046
148 (2) 84:9 204.8
jn4g (2) 105.3 121.16
j24n60 (2) 24:8,23
5317352 (1) 18:18
34101 (1) 605
jaa1013 (2) 599.17
js2ut (2) 4515 466
5215 (1) 4528
6135 (2) 3513 36.14
6136 (1) 37:5
6138 (1) 39:7
6139 (1) 39.23
ona (1) 34.2
joua2 (1) 3537
J617 (3) 32:21 33:4 357
jo2t0 (1) 316
oan (1) 317
6243 (1) 318
6216 (1) 31.9
jo2te (1) 31:21,
Jo2t9 (1) 31.22
j6220 (3) 322,9 35.4
6224 (1) 35:20
4623 (1) 26.20
625 (1) 295,
4627 (1) 29:7
4628 (1) 30:14
4629 (1) 20:26
iruit (1) 689
s7m2 (1) 68:23
rina (a) 5424 563
6.10 90.22
71S (2) 56:20 57:8
7121 (1) 70:20
i712 (2) 70:14,20
437133 (1) 107.10
g714it (1) 1069
FTIOL3 (1) 07-4
rire (1) 895
7401 (1) 49:18
7186 (2) 49:20 65:22
7187 (1) 66:12
472020 (1) 205:20
7224 (1) 1208
47238 (4) 1125 12621
134.3 135:2
STAM (1) 2216
7242 (1) 22.28
47286 (1) 23:8
7261 (1) 105:5
j72614 (1) 105:13
727i (1) 13412
472816 (1) 106:2
701 (1) 52:22
764 (2) 52:25 53:21
i771 (1) 50.6
7710 (4) 50:22 51:15
6326 1535
779 (1) 64:19
TBI (1) 85:4
7844 (3) 85:8.12 865
jervis (1) 107.10
joanna (1) 134-22
jongh (6) 503,313.22
66:11 15223
judge (20) 4:3 51:11,19
57:4,14,15 64:18,
6625 67:7
68:16.21,22 69:12
701,13 10216 106-14
107-4 136:2 156:12
judges (13) 4224 5125
81:3 84:1 106:20
107.5 115:17 147.22
15915,8,10,1521
judging (1) 74:22
judgment (40) 16:15,
172218678
19:20,22 25:22 26:16
30:8 32:10 43:14
sid 5303 61:18
62:9 66:13,25 678
68:14 84:25 86:22
9129.24.25
9211,6,21,23,24 93:2
952 97:25 107.3
113.24 1165
134:1,3,6,15
judicial (3) 58:22 59:12
13233
Judicially (1) 73.9
july (2) 10:20 48:22
jumping (1) 77:20
Jumps (1) 1009
june (4) 13:20
158:16.18,22
Junior (1) 131.22
Juniors (1) 41:11
jurisdiction (1) 69:14
Justifiable (1) 127.18
justification (1) 101°8
justifies (2) 100.20
106.22
justify (2) 101:22
105.28,
Justifying (3) 316 65.1
100.14
K
kastor (2) 85:3 69.6
keener (1) 15:21
keep (1) 149.23
kind (6) 20:17 24:19
36:7 37:17 62:16
131:13
kinds (1) 145:16
knew (3) 418 8:13,
104:12
know (32) 1:23 9:23,
10:16 15:14 18:9
2113 27:18 34:2
37:25 41:12,16 48:17
50:17 602,10 73:10
ait 91:13 1037
119.9 1264 127.8,
131.9 139.14 141.25,
14213 14414
145:2,10 148.13,
155:21 156.5
knowledge (4) 26.23
94:3 115:3 13114
knowledgeable (1)
102.15
knowe (3) 51:4.12
6618
knows (5) 547 56:3,
96:4 116.16 11:22
labour (2) 93:25 941
tack (2) 100°2 131.13
land (1) 69:9
large (6) 40:13 561637
6421 13235 12117
largely (2) 26:19 56:22
last (2) 11:2 139:2
tater (5) 26 60:17
1179 13410 1486
latterly (2) 125:1
138.24
lawyers (2) 15:18,22
tead (5) 5635 77.3
104-9 108.24
feader (3) 133:25
138.22 14730
teading (4) 126.29
teads (1) 67
teamed (40) 10:6 18.9
235 257 27:8 50.21
63:15 68:15 68:3 706
719 6014 8221.18
957 10249
103:10,15,20 107-19
08:12 1132.11
126.17,23 1186.0
13325 13735
138:13,22 141:12,16
14213 1472.10.10
149.25 1503 154.13
least (11) 16:7 17:2
22:25 23:25 39:12
40:4 413 47-4 51:28
56:5 69.28
leave (3) 7.14 68:16
1336
leaving (1) 17:9
ted (1) 8:16
leeds (1) 66:25
lot (2) 7510 2042
legal (4) 4739 693,
105:22 10620
eggatt (4) 15:24 23:13
28:18.24
leicester (1) 105:10
length (1) 1436
lengthy (8) 90:14.19
96:23 1388
fess (12) 17:7.9 205
21:3,25 24:9 63:12
81:20 62:20 905
93:23 1065
let (9) 174 228 44.24
783 148.23 148:4
149.4 15655 157.3
lets (10) 7:16 33:21
36:18 37:3 68:8,12
76:8 89:21 90:24
1295
letter (9) 5:1 45:15,17
46a 473 13701
13971117
letters (2) 125:1 1404
level (3) 36:25 59:20
13825,
lability (7) 51.28 53:28
6721534567
liable (1) 30.19
light (4) 63:17 100.23
106:13 1483
like (32) 7:15.18 825
9:13.24 14:9 184
37.27 41:12,18 42:3
61:5 75:68 7955 852
100.3 102:7 104.25
108:10,15 116.21
y2E14 12422 12789
14415 14823
150.22,23 151.18
15411
Tikely (1) 12216
limitation (4) 62:23
64:3 65:13 70:25
limited (4) 1423 37:20
179,12
fine (7) 46:18 48:20
59:16 64:24 127:19
141.5 14210
lines (5) 52:18 56.13
921 1128.10
Tinks (1) 369
fst (1) 10.22
Usted (1) 3422
listen (1) 135.23
listening (1) 135.24
tists (1) 108.21
litigant (4) 77:9,10,22
738
Ikigants (2) 77.12.16
fxigated (1) 66:29
Ikigation (57) 8:12
40:20 45:24,25 46:19
48:19 49:6,12
528,19
53:6,13,15.16 54.23
55:6,13 56.2415
57.21 58:13 61:11
6319 6413,
68:25,7.14,20
695,7,12,7 70:30
7,447 731,23
76:1,12,18,20
80/11,15 97:19 106:21
107.20 137.19 1516
1521,6.19
193:13,14.17
62:2 119.21 12211
1249 134-25 139:21
146.17 147-8
live (1) 129
local (2) 75:11 14617
lodged (1) 13:12
long (7) 8:25 26:24
29:15 73:12 91.7
106.15 137.8,
longer (2) 6:21 12:9
longmore (1) 17:16
longterm (2) 27:66
look (41) 88,18 16:9
24:2,7,23 28:12 30:11
35:10 372,15 40:10
50:21 52.21 66:18
73:14,22 77:4 89:20
92:10 100:12 102:20
1035 104-5 105:2
107.3 106-10,22
11020 11:4 113:21
14a 11520 118.15
122:13 12416 130.6
143,10 150.10 153.2
1561
Jook52122 (1) 156:5
looked (8) 70:7 99:7,25
1016 110-23 11:17
138:7 14012
looking (20) 13:3 27:2
32:13 33: 46:3 49:17
54:18 63:15 7222
73:38 21 82:6 86:1
11325 119-1 120:9,16
322.18 138-11 142-15
looks (8) 33:8 46:6
49:24 52:9 75:21 87:1
103.23 125.7
lordship (120) 219
3:2,411,14,1821
43,12 52,893.23,
6:20 7:1,32 11:4,20
12.23 1341 15:4
16:6,8,21 18:19
214,22 22:15 23:7
25:12 263,12 33:12
37:19 39.24 402
41:2,3 42:7 436.14
40:7,25 45:19 46:6
48:13 49:16 50.1823
51:6,13 53:10
54:7,10,12 5:20.28
56:12 57.2 58:22,
59:5,12 61:17 62:18
65:22 7255 73:22,
79:11 82:21 84:8 85:3
96:4,25 87:1,15
912,12 92:3
93:6,15,19 94:5.9,13
95:9,15,18,25 96:4
97:12,22,24 98:11
100 101:12,19
103.24 109:13,20
11320,24 116:4,16
117.6 125-1 133.25
1345 136:11 1385
14018,19 143:4 147.5,
148.13 149-3 151:5,20
152.22 153.2
lordships (12) 2:16,22
3:25 104 86.22 9113,
95:2 97:25 124.24
lose (4) 46:24 62:12
7613 152.16
loses (1) 61:24
loss (2) 31:2 64:3
losses (2) 20:20,25
lost (14) 19:8 46:21
61:15,18 65:15 757
765 86:214,18 87:1,15
89:10 9558
lot (6) 58:12 97:6
1097.9 130:21 144:8
lots (1) 42:20
low (1) 104:26
‘macinnes (5) 112:5,7
116.10 1342 1362
imacinnescleveland (1)
13615
magnify (1) 59:25
main (6) 11:21 365
08:12 112.11
1579.12
‘maintain (1) 62:24
‘maintaining (1) 12612
smaitland (4) 27:14
208:2 1141321
major (6) 719 16:24
28:3 56.15 664
14225
majority (1) 57.22
makes (7) 39:10 58:11
7595 82:20 102.24
104.1 106.9
making (20) 1:25 5.14
3218 162 39:9 44:18
45:3 66:4 722 74:4,25
75:19 80:18 82:16
106-24 113.6 121.28
125:16 14:12
management (13) 50:7
63:22 64:7 66:2 71:3.4
301.17 11213 120:16
321:18 123-14 15:21
18:24
managing (5) 68.21.22
69:12 701 156312
many (16) 17:21 38:23
34:4,13.17,20 35:12
361,21 41:12 423
57:18 74.23 86:16
9323 1145
march (3) 60:23 92.25
13014
margin (1) 152.6
marry (2) 15512 258.5
massive (1) 152.20
master (1) 124.25,
‘masters (1) 138.23
‘material (14) 3:12.69
11.25 22:3 24:5 36:10
75:6 68.25 69:7
9:13 100:4 101:20
10323 113.9
mathematical (2) 85:18
884
mathematicalarithmetical
(a) 13138
matrix (9) 52:4,20
33:4,10 39:10,24.25,
402.3
Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
May 23, 2019
Alan Bates & others v Post Office Limited
POL00042714
POL00042714
Day 13H
matter (18) 5:22 10:16
16:13,16 31:24 40.1
627 646,103,
717.24 72:18 106.5
1413
matters (21) 13 255
31.25 92:3 37:23
3869.16.17 39:11,
40:3 44-2 55:10
629,23 65:10 838
88:24 96:6 114.6
4476
maximum (1) 134-7
maybe (5) 68:10
109:23,26 145,14
mean (19) 186.6 45:6,
50:1 58:25 62:16
63:3 64:15 65:7
71.17 94:1,20 955.7
97:9 101.17 1393.22
1464
meaning (5) 27.16.17
30:8 37:11 126:20
means (4) 72:23 766
84:20 85:20
meant (6) 21:3 35:2
86:3 95:22 102-11
1085
mechanisms (1) 39:2
mechanistic (3) 85:21
86:2 10314
meet (5) 5:14,17 6:24
mara
meeting (4) 518
6161637
members (1) 30:3
memory (1) 10:22
nention (3) 56:8 91:11
1924
mentioned (6) 436
91:10 95:20 140:10,11
1437
sere (1) 45:2
merely (1) 30:7
rmerited (1) 55:8
merits (2) 66:14 106:3
merrell (1) 58
might (26) 12:24 13:2
16:9 24:24 36:22 47.6
48:18 51:20 58.10.12
8:1 74:7 77:13,20
78:22 60:9 96:17
99:5 11621 1202
1324.21 13324
135.24 152.16 156:1
miles (1) 65:11
millennium (1) 83:7
milion (26) 65:22
101:13,14 1255.25
127.1,20 129.24
1384.4 130:11,13
140.1,13,15,16 14:17
142214312 1487.7
145.21 1468
1472.76
millionodd (2) 129:6
1445
millions (4) 66:6 73:23
106.13 142.21
mind (7) 12:24 1835,
51:7 88:2 203:12
107.11 1345
minded (1) 1582
minimal (3) 84:17.19
a7aa
minimum (3) 1209
122.14 13612
ministry (1) 70:9
minute (1) 1825
minutes (8) 2.6 8:17
199,13 41:23,28,
13618 140.24
mirror (1) 18:12
imiss (1) 34:4
missed (1) 74:7
imisspoke (1) 141.25
misunderstood (1) 68:8
modern (3) 85:24
93013,
‘moment (14) 25:25
4117 519 741 778
802 120:4,15 1223
125:18 127.3 135:25
14320 157-11
monday (1) 79
money (4) 40:21 59:20
14515 154.20
month (2) 6:12 139.13,
months (11) 17:8 2015
21:5,24,14 22:25
27:34 131 1392
1582
rmonthssix (1) 21:5
more (26) 34.15 6:5
20:14 35:2 52:20
7424 786 79.9 83:23
87:21 93:23 103:12
104.18 110.28 111:24
11211138 119.22
122411 124.9 134:20
139.21 142-4 144:8
15518,
moreover (3) 38:4
4016 41:2
morgan (2) 1068 1072
morning (4) 212 12.6
9520 1581
most (11) 13:25 14:12
175 42:10 48.16
52:16 63:12 80:23
94:4 12610 139:11
motivated (1) 105:24
mouse (1) 91:23
move (6) 24:6 27:9
30:3 41:3 58:6 94:4
moving (1) 97:7
sms (2) 74:11 134312
mses (1) 10:20
much (37) 9:21 11:8
15:20 1621 19:21
201 29:6 39:3 42:22
43:11 50:5 60:7 63:19
70s 71:11 83:10 98:1
97-24 104.18 1065
12113535 1184
127-23 126.6 133:8.13
134.14 140.28 14118
1421.22 1452 146.23
153.23 156:16,20
multiple (4)
58:20.26,25 59:10
multiplied (1) 144-22
must (12) 167 21:20
23:25 25:21 267
3010 31:3 645 738
1325.7 142.13
‘muster (1) 110:6
‘myself (2) 96:12.13
‘9460 (1) 158.12
name (1) 1169
namely (4) 25:18 268
65:24 1383
narrow (1) 55:29
nature (2) 39:16 106.22
tnear (1) 10:10
neatly (1) 39:20
‘necessarily (8) 7:13
13:8 34:16 39:16 74:6
132.15 135:22 1508
necessary (8) 125
273,19 106-1 114.21
need (20) 11:13,23
122 2011 27:16
43:17 53:14 60:25
78:24 803,20 81.6
101:2 105:20
111:24,25 124.6
127.15 129.3 13617
needed (1) 96:16
nneednt (1) 13415
needs (2) 13:16 156.19
‘negotiated (1) 124.20
neither (3) 211 13:16
e432
net (1) 59:25
nneuberger (1) 94:25
neutral (1) 14423
never (6) 17.14 225
25:6 1103 113:13,
14424
nevertheless (1) 12:17
next (10) 7:1 95,515
39:20 43:1 52:21 58:7
60:25 158.18
nodding (1) 156.20
(2) 65:6 153.3
none (4) 3:22 28:13,
100:9 1105
nonpoint (1) 150.16
nonsensical (1) 108.18
‘noon (1) 9:19
hor (4) 2:11.11 25:13
387
norm (2) 99.17 100:2
normal (3) 15:5 61:4
220
normally (7) 25:17 76:8
994 11715 1189
149:12,13
notes (2) 65:21 71:12
note (4) 7:19 91:5
126:23 126.22
notes (1) 114.6
nothing (12) 19 55.12
66:8 67:25 69:15
7412 606,13 1091
132.2 136:14 1588
notice (21) 11:15
20:11,13,15,23
2155.19
22:2,13,22,25 25:10
26:4.15 27:3.4 316
58:22 59:12 68:12
notification (3) 4:16.19
68
snotty (1) 1398
notion (1) 23:20
notwithstanding (1)
10:7
ante (7) 30.26 37:12
28:10,20 94:8 103:17
104:9
umber (17) 22:16
35:18 41:15 43:16,19
46:17 53:1,3 54:6
56:16 70.16 91:5,6,24
20:4 108:14 115:12
‘numbered (1) 34:3
‘numbers (3) 89:21
16:16 140.2
‘numerous (1) 43:13
objection (1) 79:25,
objective (1) 25:17
obligation (4) 319
21:21 268 28:25,
obligations (5) 26:15
872,739 9711
obliged (5) 14:15 41:14
146:22 1487 151:
observation (3) 10:5
44:7 1518
‘observed (3) 1164
177 1208
‘obvious (3) 17:6 111:23
14a7
obviously (28) 7:21,22
8:20 154 34:9 36:17
39:21 42:17 48:17
50:19 65:23 73:8
75:8.12 762 78:6
95:17 88:2
103:3.13.14 10418
112.8 113.23 119.25,
143:12,18 154.23
‘occasioned (1) 12:18
‘occur (1) 66:8
occurred (2) 2:6 12:4
‘occurring (1) 100:10
‘oclock (2) 13:20 83:21
‘cps (1) 10:20,
cts (1) 10:20
‘october (9) 125:4
130:21,23 1375 138.2
141.22 1421928
143:20
odd (1) 145:21
offer (1) 107:5
offering (1) 96:13
offers (2) 55:9 98:7
office (48) 25 3:1 813,
10:21 123 2024
21:20 30.2.4 37:9
38:7.9.15 43:22 45.6
47:6,20 48:18 4915
51:8 5223.23 58:17
60:9 74157 7.9
84:8 85:20 86:23 67:7
88:24 91:7 94:20
95:24 96:10,13 102.17
103:2 107:18,21 113.6
139:12 14415 156:10
offices (14) 1:22 27:25
30:19 35:19 46:14
47:15 48:24 83:16
92:6.16,25 95:22
100:1 1095,
offshore (3) 7123.25
72:20
often (6) 42:18 697.8
98:25 107-4 139:10
oh (3) 7:5 32:18 65:14
okay (5) 69:25 80:2
97-14 10411 141.24
oldfashioned (1) 1303,
omnibus (1) 64:1
once (3) 26:1 53:23,
78:28
‘onerous (6) 31:8 42:19
88:19 90:5 103:16,23
ones (6) 345 42:17
107:22,23 110.16,
38:11
coneway (1) 28:14
ongoing (1) 140:5
onwards (5) 13:22 48:22
53:10 101.9 120.17
open (6) 6:21 8:18 55:6
56:17 1344 15425
opening (4) 55:22 92:14
9655 1038
openly (3) 55:14.15
988
operated (1) 392
‘operation (1) 78:9
opposed (2) 16:17
128:11
optimistic (2) 92:20
126:10
opus (5) 17:23 18:12
19:5 45:24 54:15
orally (1) 134.12
‘order (96) 5:17.19
125,12.17 136,724
142,10 438
44:19,21.22.26
45:1,3.4 46:23 47:10
507.8 51:21
54:16,20.22 586 61:4
63:23 664.9 677.16
69412725
723,222 74:4,7.8.25
755,19 77:12 78:23
79:22 802
81:5,12.13.16 633
84:21 87:9 95:25 96:1
98:4 101.8,11,17.19
107.12 115.21 116.25
120.16 1216.21
323:14 124.20
325:17,21 12824
129.9 1363.57
139:15 1486,10,25
149.25 1506 153:24
154:2.6,7,17.19,24
155.6 1562,17,19.21
ordered (14) 11:8 36:3
7aa7 111.19 1164
130:20,20,28 136:11
1377 1414 14731
148:3,5
ordering (1) 96:2
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7213 73:13 75
77:21 80:10 86:17
139:18 1493 15613,
ordinarily (3) 72:22
114 64
ordinary (2) 59:3 107.17
original (3) 16:3 108.2
13013
originally (3) 100.18
322.16 1398
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72:3 87.2 91:15 93:1
106.23,
‘otomotiv (3) 17:25
228,17
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60:10 68:23 103:12
3312 15746
‘outcome (8) 49°5
514,12 56:3,
66:1,14.18 86:8
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128:16,22 130:18
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‘outines (1) 12615
‘outset (1) 1124
‘outside (1) 1064
outstanding (3) 64:20
3413 147-24
‘over (20) 6:18 20:19
54:26 55:21 569 57:6
66:12 696,15 70:2
91:23 1067 121.19
31416 119.21 227.2
1383 1392 1401
35319
overall (2) 74:23 99.25
1g (1) 114.25
‘overemphasise (1)
10413,
‘overtop (2) 68:18
10322
overlapping (1) 69:24
overlook (1) 47:16
overly (2) 133 157.25
‘overpayment (1) 132.21
covertum (1) 25:4
owes (1) 3:8
‘own (5) 29:14 51.17
7221 91:13 97:5,
P
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pages (1) 103:6
paid (2) 13:29 60:16
pan (2) 62:10 63:10
para (1) 12524
paragraph (108) 3:9
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19.20,28 21:16 22.22
23:1,8 262,20 27:2
29:4,37.20
30:3,16.23
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323689111121
334 345.12
35:4,7.10,16 36.13,
43.22 45:18 464.57
49.221 50:44:28
5115 525,769.25
531,34 54:16,19
56:,11.12 57.2.8
59:16,18 60:14 64:18
65.22 67:4 68:13
692,321 7024.5,
84:9 058,15 86:5 69:5,
91:22.28 92:10.11
10857
105:2.11,18,21 106.8
1079 10919 114.5
3181518 12521
1342 135:2 14218
143.10 152:25 1547
paragraphs (20) 13:4
206 24:8 30:17 32.2.6
48:24 50:12 63:15,
87:13 92:21 1035.11
111.16 116-12 128.22
1307,11,18 131.6
Parallel (2) 94:23
103.13
parasitic (3) 28:7 75:8
1544
parcel (2) 39:17 152:21
parcelled (1) 153:26
pardon (2) 119:37 127:6
parity (1) 57:14
part (29) 12:22 164
17:21,24,25 19:5 32:4
33:16 34.23
39:14,17,24 47:5 524
55:9 57:21 63:4 68:1
72:12,16 73:17,19,20
775 78:12 1073
1083 140.18 154:1
Particular (12) 9:22
291415715,
98:1,18,23 99.617
31n1.9 15233
particularly (9) 15:6
55:13 85:5 9539
10213 10615 113:8
128:16,23
Particulars (4) 47:17
107.22 113,17 145.23
parties (14) 1:23 3:20
27:4 38:3 39:1 66:15
93:2 98:25 106:11,20
109.2 112.12 139:6
15214
partly (1) 144:6
parts (3) 32:23 40:13
1556
partway (1) 66:5
party (20) 13:16 49:7
63:41 77.9,13,21.23
788 867.14,18,19,20
100.3 104:25 105:15
1073.15 111.6
150.10
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pass (1) 10:6
passage (3) 80:24 81:7
83:20
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passes (1) 109:17
passing (1) 22:22
past (1) 40:22
pause (5) 18:25 19:4,6
773 1204
pausing (5) 516,13
53:18 63:24 120.4
pay (5) 61:26 67.12.16
7437 92.21
paying (9) 72.10.15
779,13,22 78:8
105.5 107:13 1116
payment (29) 12:17
445 51.21 61:16,17
62:6 83:6 11524
1163,21,24
1173,13,15 1183
12219 12612
132:10,17 135:5
Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
May 23, 2019
Alan Bates & others v Post Office Limited
POL00042714
POL00042714
Day 13H
144:12,13,17 146.19
147.20 1483
14911,12 15017
payments (6) 55:9
1129.17.19 127.24
1412
penalise (1) 106:20
penalised (1) 86:9
pence (1) 12716
pending (2) 2:12 154.21,
Penultimate (3) 50:22
95:10,13
people (8) 20:12 69:17
73:16 104:19 15219
per (1) 13:20
percentage (9) 1:19
83:4 85.22 86:2 9312
1022.20 120:19
12320
perfect (2) 142.10
1508
perfectly (2) 58:12
60.28
perform (1) 155:4
performance (3) 17:9
235,28,
perhaps (4) 75:10 140:7
1435 1572
period (22) 99:1,2,3,
100:1,19,21.24 107:20
111:2,312,19 12416
13212,16 136.16
1405.16 141:14.20
14417 15724
periods (1) 139:5
peripheral (2) 48:13,15
permission (25) 12:3
146,11 15:3 2413,
2999319
408151625 41:19
83:16 90:21 14821
1512 153:21,24,25
154:11,22 15:20
157.9 158:10
perpetuity (1) 154:23
perriam (1) 66:22
person (2) 9:7 71:20
Personal (1) 105:24
perspective (1) 46:14
persuading (1) 93:5
phrase (1) 78:3
physically (1) 54.25
picks (2) 88:10 69:5,
piece (3) 100:13.15
1016
place (7) 38-4 61.24
9:11 109:21,22
12824 1415
placed (3) 57:4,14.16
places (1) 90:22
planted (1) 1154
play (1) 1311
played (1) 111:20
plead (2) 108:8 113.18
pleaded (11) 65:8.26
97-8 107:25 108:4,26
113:2,16 114620
1153
pleading (5) 27.24
1114 11323 142
1155
pleadings (1) 65:12
Please (10) 8:24 9:2.9
11:9 25:22 41:13
46:10 55:16 60:5
yraz
plus (6) 59:1,4 2176
127:20,20 1296
ppm (14) 42:25 21:24
83:11,13,25 84.2
115:16,18 141:7.9
147:21,23 158:21
pocket (2) 56:24 57:23
pointed (6) 23:12 35:5
617 7916 13724
1444
points (40) 2:19 4:10
102 11:36 1422
2055.12 21:25 29:7
321 332 35:3 39:23
43:16 446 57:18
58:16 60:17 65:9
67:21 7033 e111
83:9 65:6,7 66:13
93:19 95:22 98:13,
103:24 104-1 106:21
1119 1124 1133
1163.15 133:20 1543
policy (1) 153:17
portion (1) 26:25
position (13) 3:22
5:6,12 44:8,10 46:25,
56:18 62.20 77:23
789 79:2,3 12819
positions (1) 106:12
positively (2) 47:8 54.4
possibility (6) 46:1,20
47.9 56:6 66:13 69:23
possible (5) 5:11 7.12
51:25 146.11 15714
possibly (5) 36:22
84:18,21 90:7 1425
post (59) 1.222.532
8:13 10:21 123 20:24
2119 27:25 302.418
35:19 37:9 38:7,9,15
43:21 45:6 46:14
47.6.15,20 48:18,24
49:15 51:8 52.23.23
58:17 60.9 74:15,17
779 836 84:8 85:20
86:23 87-7 88:24 91.7
92:6,16,25 94:20
95:22.24 96:10,13
100:1 102.17 103:2
107:18,21 1095 1136
139:12 144-15 156:10
post13 (1) 125:20
postcontractual (2)
31:25 395
postmasters (4)
301,919 1033
postpone (3) 51:3,11
66:17
potential (2) 14:1 74:22
potentially (3) 46.22
132.16 1453,
pounds (3) 66:7 73:13
10813,
power (1) 27:15
practical (1) 86:21
practice (1) 39
pre (1) 1373
reaction (2) 48:22
1379
prebudget (1) 128:21
prebudgeted (1) 98:15
precedence (1) 153:19
precise (1) 145:20
precisely (13) 14:5
46:26 45:12 48:21
57:24 56:,35 60:20
61a 61:21 9219
9825 116.4
precision (2) 139:21
1462
predating (1) 99:3
redetermination (3)
628.22 63:8
preference (1) 107.14
prefirst (1) 15:21,
Prejudice (4) 6:13 55:15
969 14918
preliminary (17)
37:11,20 39.17 495
61:6,7.10 68:12 64:9
6713.17 16,22 701
71a 80317 1522
premature (1) 56:4
premise (2) 502 76.16
premium (1) 152:13
preoctober (1) 137:20
preparation (2) 121.11
3433
prepared (6) 37:10
7724 98:14 96:12
142,20 1434
reread (1) 65:23
present (2) 1:14 67:6
pressure (1) 19:10
presumably (1) 111:20
pretend (1) 104:20
protty (6) 1:28 49:24
soa1 51:5 53:10
79:20 92:20 134:14
prevented (1) 64:22
previously (2) 75:21
4437
primary (7) 44:10 77:23
792.3 84:12 93:18
10:12
principal (1) 50:12
Drinciple (28) 22:6
46:22 62,7 68:6,10.13
65:24 66:19
717.12,25 72:18
84: 6,24 85:2.7 8677.28
86,3 102.2 111:22
116.20 1168 120:6
13855 153.24
principles (2) 68:20
9410
prior (6) 4:15.19 22.25
(66:20 143513 157.26
priviloge (1) 2:9
probably (7) 37:2 43:25
3633 74:21 85:17
108.7 155:13
problem (4) 63:17
152.22 141.19 1424
procedural (9) 3336
368,12,20 37:5,6.25
301 4216
procedurally (1) 155:18
procedute (3) 14:24
381 1585,
proceeding (1) 129:4
proceedings (1) 12422
process (5) 33:24 39:15
119.25 137.25 14631
produce (5) 5:3 83:22
1312 156:21 157.7
produced (3) 139:24,25
waaay
product (1) 12621
production (1) 1387
proof (1) 30:15
Proper (5) 3:10 4:2
12:12 49:12 87:21
properly (3) 48.12
136:14 1388
proportion (8) 51:23
16:4 77:15 78:1416
117:4,17 137:20
proportionate (2)
13422 1388
proposed (1) 23:11
Proposition (2) 25:20
1241
prospect (19) 14:25
16:8 173 227 241.2
25;3,5,21 26:17 27:20
30:11 31:3 40:5.9.11
1524 153:10.12
protect (1) 56:18
proved (1) 7:22
provide (11) 7:2 8:10
10:11 46:96 63:7
67:8 96:13 98:45
provided (10) 2:24 3:8
5:25 6:13,15,20.23
8:13 4615 143.17
providing (1) 6:35
provision (7) 4:4
20114.16.23 23:20
73:20 96:8
provisions (5) 5:7
175,12 182 80:12
public (3) 30:4 40:22.23,
punch (1) 57:3
purely (2) 120.19
140.28
purpose (6) 6:15 29:24
45:22 61:12 76:20
105125,
purposes (11) 11:12
45,21 75:3 79:24 815
99,3 1139 115:20
12125 13422 15514
pursuant (4) 37,8 6:25
waar
pursue (1) 1:6
puts (1) 322
putting (2) 86:15,
14423,
be (1) 467
gc (2) 23:12 13413
‘acs (1) 28:21
‘quantified (1) 68:12,
‘quantity (1) 8:9
quest (2) 87:2,12
‘question (15) 16:14
31:23 41.20 42.14
44:4 51:10 82:15
97:21 99:22 102:10
149:16 151:20 152.5
1571.14
‘questions (7) 7:17 41:8
62:12,12,13 68:15
eral
«quibble (1) 150:20
‘quick (1) 1124
quickly (1) 422
quite (20) 14:16 15:19
38:2 41:4 58:12 76:4
86:6 87.15 97:6 99:23
103-11 1208,24,24
130.21 131.9 1422
346.17 158:12,12
‘quotation (1) 50:23
quote (1) 46:6
quoted (3) 23:8 51.9
525
rabbit (3) 78:29
798,19
radical (2) 16:22 1733
radically (1) 166
rise (2) 141.10 149.22
raised (2) 3215 1308
range (1) 20:20
rare (1) 76:18
rather (22) 42 45:7
49:2 73:18 77:20
99.21 103:2 10639
1116 1138 11739
32010 1223
131:17,21 149,36
1497 150:11 155:22
157.24
rational (1) 31:1
rationale (1) 132-20
raw (2) 61.3,
re (2) 131593
reach (3) 51:24 522
1223
reached (5) 629.23
68:20 1235.9
read (8) 28,11 12:25
52.9 56:11 63:16
130.12 147.15
reading (2) 72.6 14313
ready (1) 132.12
real (25) 1425 167
17:2.22:6 255,21
26:16 27:15,23 30:10
31:3 405,9,11.23
46:1,20 47:8 66:13
1323 1352 14918
152-4 1530.12
realisation (1) 47:5
realise (2) 6:1 146:15
realistic (2) 24:1,2
reality (3) 30:9 40:9
ar22
really (26) 14.21
1599.25 163,20
27-30,11 60:10 67:15
69:5 70.6 71:11,11
£2.16 69:17 100.9
104:1,21 109:3 10:2
117.9,1024 1185
130: 1514
realm (1) 23:37
reason (24) 7:3 29.21
31:1 41:6 46:17 54:22
58:19 69:4 78:18
62:20 66:4 94:11
110.22 117.18 1195
324:4 135.9.13
136.9,10,12,21 1472
158-4
reasonable (6) 25:3
27:20 69:14 95:10
13421 1388
reasonableness (1)
9423
reasonably (1) 38:3
reasoning (3) 57.14
136:10 13515
reasons (31) 15:3 16:24
40,28 24 50:7 58:18
63:22 64:7 71:6 83:23
4:24.28 67:20 1114
32617 125:19 145.19
151:20.14,26,21
353:11 155:11,3,17
1569,13.17 157-816
1589
recall (3) 32,21 121.9
receipt (1) 35:17
receive (1) 156:8
received (6) 1:17 6:21
8:39 41.28 13911
receiving (3) 1:24 20:13
10735
recent (1) 139:21
recital (2) 96.4 150:2
recitals (2) 1509.11
recited (2) 50:3 90:25
recites (1) 91:7
recognised (3) 43:21
546 594
recognition (1) 48:8
record (1) 131.6
recorded (1) 141.16
recover (8) 56:7.10
58,10 69:24 74.1
sauna 128:22 148.24
recoverable (3) 47:21
126.17 145.25
recovered (1) 59:22
recovery (4) 11216
32221 12321 12611
recusal (7) 12:13 13:6
61:18 6249 121.21
139.15 149.24
reduce (2) 129.7 1328
reduced (4) 121.7
3261325 12721
reducing (1) 146.19
reduction (21) 44:26
e119 @34
8469,13,7 925,18
93:12,16 102.2 120:20
128:20 125:24
1265818 129:19
130.4 13424
reductions (1) 128.20
refer (2) 22:15 237
referable (1) 137.21
reference (21) 18:28
194,19 31:16,18
32:17 4525 49:14
54:25 57:1,11 83:15
£916.12 92:11 96:5
30220 18:15 137.25
15456 155.22
referred (6) 54:13 60:12
Tas 1165 13421
1581
referring (1) 33:19
refers (3) 45:28 66:11
89
refinements (1) 106.10
reflect (11) 37:11 77:37
e139 8410 122.21
32522 1297 13113
139:18 146:18,20
reflected (4) 62:20
67.39 932 154.24
reflecting (1) 250.7
reflection (1) 109.22
reflects (2) 53:20
15621
refusal (2) 114.8 157.26
refused (1) 37.18
refusing (1) 158:9
regard (3) 88:6 9.23
regarded (2) 134:7
1388
regardless (1) 25:1
regime (3) 138:23.24
13928
register (1) 69:27
reinvent (1) 93:4
reiterate (1) 1443
rejected (2) 28:20
10734
relate (4) 7815.16
g6a1 115
related (4) 104:9,12
1446 145:21
relating (1) 37:23
relation (42) 10:4 13:5
174 23:6 25:14 292
30.23 31:2,10 32:20
3866 4229 43:11
467 47:19 55:34
5616.17 60.17.18
74 8021 61:22
883,19 94:8 95:19
9822 100-7,24 102:21
103:15 104:8 107.24
30910,19 1132
148.12 146:19 1502
15439
relational (7) 15:13
26:21,25 32:25 40:12
87:20 95:16
relationship (6) 37:33
38.22.25 47:20 61:23
87s
relative (1) 15:23
relatively (2) 62 15:7
relaxed (1) 1422
release (1) 12.7
released (1) 69:8
relevance (4) 1066
1096.12 1129
relevant (15) 13:6 29:1
324 3911.15 40:3
498 $7.4 77:7 79:10
8032 69:13 97:18
105:12 106:3
reliance (2) 35:4 72.24
reliant (1) 59:29
relied (5) 49:14 51:7
52.25 152.22.23
rolit (3) 47:18 48:1
sea
relies (2) 68:4 71:9
reluctant (1) 131-28
rely (4) 63:17 97:23
31221 128:23
relying (2) 47:2 62
remainder (1) 66.8
remaining (2) 81:10,12
Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
May 23, 2019
Alan Bates & others v Post Office Limited
POL00042714
POL00042714
Day 13H
remains (1) 61:15
remember (7) 26:19
45:20 95:19 1097
13210 14341475
remind (7) 1123 22:10
60:1 70:16 61:9 1169
155.19
reminded (2) 75.25
1053
removed (1) 123:14
removes (1) 14:2
render (1) 66:9
repaid (1) 59:21
repeat (1) 1382
repeated (3) 33:5 42.18
1006
repeatedly (1) 90:7
reply (8) 1122,3 13:21
1158 13319
159:13.14,20
report (6) 119 3:13 5:4
69,1320 1023 11.01
reported (2) 138:25
1406
reporting (4) 124.28
138:23.24 1404
represent (1) 28:14
repudiatory (10) 22:3
24a
25:10,13,15.18,23
266.10.14
request (2) 10:19 108.9
requested (1) 3:23
requests (2) 95:21
1006
required (4) 59.23
66:18 75:23 139.24
requirement (1) 16:36
requirements (3)
23.14.15 124.26
requires (4) 512.22
66.17 12220
requiring (1) 65:1
reread (1) 49
reservation (1) 15615
reserve (12) 13:21
45:17 49:6 61:6 77:23
90:4.8.21 15428
15618
reserved (14) 12.10.19
44:6.10,23 453 47:1
60:19 70:12 75:15
76:21 792 1513,
1545,
reserving (5) 44:2 63:7
73:10 80:13 83:21
resist (1) 77:25
resolution (2) 43:4
4626
resolve (1) 68:23,
resolved (7) 49:13
56:22 57:20 58:14
68:7 70-4 90:12
resolving (1) 3:14
respect (13) 12.5 20:23
37:6 66.15 66:1 96:14
11224 11418
121:16.20 1471
1541.12
respectful (3) 4:1 61:9
13613
respectfully (12) 50:17
52.14.20 57:1 84.12
86:24 95:11 96:7 97:7
98:3 100.22 12:21
respectively (1) 17:8
respects (1) 100:4
responded (3) 10:21
96:22 1133
response (5) 5:13 23:19
428 11423 137.11
responsibilty (1) 31°22
rest (2) 11:16 696
result (8) 195.19
31:15 56:25 64:4.7
1078 127.25
resulted (1) 95:24
retaining (1) 150:15,
return (1) 152:24
review (1) 42:21
revisited (2) 12:25
8037
reward (1) 72:2
rewind (1) 33.22
fi (2) 10825 114.16
lous (2) 1033
1152
righthand (2) 46:18
518
rightly (5) 33:12 61:17
10324 120:8 137.15
Fightminded (1) 104.19
rights (3) 25,9 27:5,
ring (1) 73:10
rise (6) 196.13
42:22,23 81:8 140.24
Fisk (1) 567
road (1) 73:12
robinson (28)
157,115 2:13.16
3:2 4:12,19,21 5:21,23
610 7:4817,19.23,
8615 93,10,14,18.20
11:14,17,20
role (2) 70:1 71:3,
rolled (2) 62:1,3
rough (1) 13:12
roughly (2) 125:4 136:4
round (5) 99:13 104-15
106.19 1258 1401
rounded (1) 11922
rounding (4) 119.25
1203 121.18 123-4
rounds (1) 43:6
route (2) 887 1327
ruled (1) 40:3
rules (6) 61:19,21 67:25
7118.21 1528
ruling (16) 42:24 81.1.3,
93:35,20 84.2 15:17
127.25 141-3 47:22
1513
1595, 8,10,15.21
rulings (1) 83:24
rumbled (1) 96:6
run (3) 40:22 97:19
15116
running (3) 40:21 140.5
ysit2
runthrough (1) 35:3,
salter (1) 28:21
same (26) 5:25 13:8
24:4 25:11 30:22 312
36:10 39.28 50:6 579
63:22 86:8 88:7.25
897,25 103:16.17.21
109.28 11817 12612
127:10 134:10
155:16,23
satisfied (1) 135:9
satisfy (1) 1107
save (3) 55:15 98:9
3207
saying (47) 623 1022
363 2021 217.10
239,22 25:1 424
45:21 52:4 54:9
589,13 63:1,25 64:20,
658,14 69:25
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‘777 §2:12,19 88:4
89:20 92:13,15 93:16
9920 106.23 107.1
109:20 1106
114:12,24,26 1168
1245 136.16 141.16
1451 146-9
seale (1) 56:4
schedules (1) 109°8
scope (1) 37:12
screen (6) 185,16,17
4722 51:14 118.25
seal (1) 13556
seat (1) 67:4
second (25) 223.25
86 196 20:19 33:17
35.24 3055 46:18 458
59:7.18 608 78:12
889 90:3,16 91:3 96:1
979 11311 1192
120:15 13037 135.25
secondary (1) 84:26
secondly (4) 416 1423
16:20 86:20
section (3) 30:14 3222
3413
security (5) 12:6 45:21
468,15 598
see (28) 1.6.8 5:21 66
1421 161 18:16
21:22 22.23 29:16
3218 349 36:3 39.23
49:25 50:14,28 53:10
57:3 859 91:1 10013
1093 128:10
seeds (2) 10037 115:4
seeing (1) 512
seek (8) 45 31:9 65:3
953 101:18 108:25
1311 149.16
seeking (10) 5:10 25:25
7730 787 824.19
25:01 67.7 127:24
15431
socks (2) 27:9 08:24
seem (8) 185 198
30:24 132.4
seems (5) 1912 473
67:8 89:8 153:13
seen (6) 14:15 56:13
622 848 97:22
133.28
sees (1) 140.13
selfcontained (1) 57:19
send (2) 2:1 55:15,
sending (1) 118
song (8) 15:25 16:2
17:38 23:38,21,23
2817
senior (2) 124.25
138.23,
sense (9) 6:22 1221.24
16:22 56:10 85.16
90:4 135:15
sensible (6)
106 18,20.24 1499
15219 15538
sensibly (2) 60:24 85:20
sent (7) 110,23 2:22
7aza1 1131 14218
sentence (1) 53:12
separate (19) 10:8
14:10 16316
33:1,1424
347,8,10,13 35:22
37:1 4016 47:13,25
57:21 72:21 86:16,15
separately (5) 37:4
57:13 103:19 1245.6
september (4) 45:15
46:14 60:26
series (1) 70.2
serious (2) 27:10 1424
served (2) 2:25 1308
service (2) 40:22 87:12
services (2) 86:22 91:11
set (13) 3:13 25:2 32:5
33:25 36:3 37:8 396
46:4 65:15 97:22
1136 115: 1249
setting (1) 92
settlement (5) 54:2
62:13 64:3 65:13
66:15
several (1) 1215
shall (1) 4425
sharehokder (1) 149:20
short (24) 124533 66
8:25 96 107.1417
1145 19:5 42:12
49,10 52:12
57:13.17.7 83:12
87:9 976 99:28 1162
117.6 14015 141.8
shorthand (3) 11:24
137.1 140.25
shortly (3) 43:19 139.24
142.19
should (88) 2:11,20
514,15 1023 119
15:3 19.19 257 2413
29,9 40.25 41:6 43:18
44:610,25 46:8 47:2
5016 53:14 54:16,20
63:21 646.10.11,12
66.1.3 67:12,16.19
6:2 7012 71:18
722.23 75:15.18
78:21 79:1 80.16
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8413.17 85:21 885
92:15 93:16 101:7
104:3 107:8,12 106-17
10:1 115:25
118357 1215
1325825 133.24
1363.12.14 1387.14
14145 1488
1469.18 147.25
148,15,19 149.22
152.9 153:19,21
157.15
shouldnt (5) 97:23
82:12 93:6 120.9
1457
show (3) 25.23 62:21
86:10
showing (1) 47:4
shown (4) 25:7.20 59:5
80:15
shows (2) 25:3 147.16
side (7) 2:4 8:11 258
26:14 46:18 51:8,18
sides (2) 28:2 1391
signature (2) 94:8 1048
signed (3) 1310
98:14,15
significance (2) 48:20
135:10
significant (2) 733,
143.2
significantly (2) 107.17
134.20
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90:20 103:8
similarly (3) 53:25
103:6,22
simple (3) 57:25 76:9
85:18
simplest (1) 79:21
simplicity (2) 19:22
1247
since (5) 70:24 1215
124,17,21 1385,
single (5) 27:12
76:9,19.21 153-4
sit (4) 726 149:21,22
158.18
sitting (1) 13413,
situation (15) 2:12.15
8:19,20 54:14,25
95:1,2 7220 77:22
79:11 98:16 10222
134:24 153:10
situations (1) 69:16
six (6) 17:7 20:15 21.14
22:25 27:3 56:13,
92:11 1036
sizeable (1) 146.18
skeleton (60) 13:4
14:19 15:7,10 26:18
27:9 295,15,17
30:13,16 31:6.12
32:6,11,19 35:2,3,10
43:7.22 45:17 465
49:25 492
50:13,19,20,21,24
51:10 525,7 532.3
62:14.21.25 633 782
90:22,23,25 97:23,
102:16 1045 105:2,21
110.21 1247
328:12,14 1307
1317.8 137.16 143:10
150:1 1555.25
skin (1) 1046
skirmish (2) 48:13,15
it (1) 13.2
slightly (5) 1-4 33:22
54:14 1072 11622
stim (21) 43:26
small (3) 76:22 84:17
95:12
smaller (1) 14251
smith (1) 13412
sippets (1) 623,
socalled (2) 61:24 735
solicitors (19) 1:22 2:21
51689714
45:16.16 53:16,19.22
92:25 149:23
1505.12.15 154:20
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103:2 109.16 135:16
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12:23 23:4 68:1 7:2
82:19 994 1077
11:4 137:16 156:23
somewhat (2) 83:22
1324
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soon (1) 139:17
sooner (1) 14416
sort (8) 4:15 15:9 55:11
145.18 155.7
sorts (1) 9721
sought (9) 47:28 4821
64:23 77-21 10:4
106:24 124:18 126:20
1509
sown (1) 100:17
speak (2) 61:20,22
speaking (1) 48:28
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73:29 78:19 80:10
1153 1528
specialists (1) 53:27
specitic (4) 72:13 95:22
97.9 1552
specifically (3) 75:23
11424 15434
specificity (1) 96:10
specify (1) 114.8
spelt (1) 59:9
spend (1) 29:15
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spme (5) 37:12 88:23
89:2 94:11 10318,
spoke (1) 1503
spot (1) 46:12
stab (1) 13123
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475 5417.21.23
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69:5 71:15,20 72:3
80:16 100:5 108:4,8
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stages (4) 45:23
46:1,19 124:22
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standard (9) 20:16
25:7 62.2.2,7 98.21
99:3 1113 1357
standardterm (1) 31:19
start (13) 1:13 15:25
182 20:2 35:16 49:16
80:25 836,14 111.14
113.25 144-15 151-11
starting (4) 341.1354
156.12 157.12
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30:21
statement (11) 9:1.6
118 2918 59:9,16
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145.22
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status (2) 27 812
statute (1) 873
statutory (1) £9:10
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586 61:14 65:10
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stockdale (1) 108:21
stops (2) 100:21 101:6
straight (2) 103.12
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straightaway (1) 117.1
stress (1) 1259
stresstest (1) 124:35
stresstesting (1) 137:25
strictly (1) 1396
strike (1) 209.13
striking (1) 16:10
strip (2) 123°7 138.91
strongly (1) 137:18
struck (2) 1173.5,
structure (1) 15:12
struggle (1) 13222
stuff (1) 130:24
subgrounds (2) 36.17
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subissues (1) 12:2
subject (7) 44:6 68.15
98:20 11:15 121:11
32212 125:20
subjectivity (1) 25:19
submit (2) 27:15 967
submitted (3) 121
2714 1466
subparagraphs (1)
32.0
subpostmasters (2)
8733 1154
subsequent (2) 49:8
653
subsequently (1) 24:12
substance (4) 48:2
87:8 94:7 11422
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1174.16 137:20
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55:5,19 66:10 70:25
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substantive (1) 8825
succeed (1) 869
succeeded (3) 49:7
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success (17) 14.25 16:8
243 30:11 31:3 44:14
496 59:22 63:41
67:18,22 7410.23,
84:30 92:16 93:1
1298
successful (7) 6217
Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
May 23, 2019
Alan Bates & others v Post Office Limited
POL00042714
POL00042714
Day 13H
78:6 86:14,15,18.20
8935
successfully (1) 23:6
succession (1) 124
sufficient (1) 8:1
sufficiently (1) 115.20
suffused (1) 95:17
suggest (3) 915 6222
wsia
suggesting (7) 9:4
14.18 48:16 62:8 639
1491.2
suggestion (3) 65:4
7711 1034
suggests (3) 79:11
1077.21
sum (7) 1217 59:21
942 121:18 12414
13420 1432
summarily (5) 21:19
26:4.11,13.14
summarise (1) 322
summary (6) 14:2 92:28
102.18 139.22 142:17
15513
summer (1) 12:2
sums (1) 59:22
supercautious (1) 132.6
supplemental (1) 53
supply (3) 86:22 67:32
9120
support (4) 14:20 23:11
12414 1257
supports (2) 24:17
5224
suppose (2) 99:15
v9.19
supposed (3) 101:1
13523 1398
sure (20) 73 2918
24.15.24 34:3.16 623
746 78:23 79:20
132.25 13521 140.8,
142.11 14243 149:17
156.20 157:4,19 1586
surprised (1) 104:24
surprising (3) 69.18
702 109:3
suspension (2) 31:8
392
sutetiffe (1) 2311
swept (1) 137
swimming (1) 49:22
sympathetically (1)
55:18
tab (27) 2216.18.19
49:17,39,20 50.15
52:22 54:13,15 63:4
65:21 66:23 68:92
70:10,36,17.20
85:4,11,12 1055.19
1126 116:10 152.25
table (8) 55:15 96:6,13,
tactical (1) 11022
taken (25) 98 119
16:6 267 27.5 32:1
335.9 5258 64:19
722 86:12 96:21
1119 1155 11918
1226 125.26
1263.25 131.25
13216 139.19 14:21
takes (2) 123:19 144-21
taking (11) 20:12 39:19
44:14 49:16 66:15
86:4 94:28 10:10
116:12 134:15 136-4
talk (2) 5:6 1128
talking (18) 17:8
23:13.28 26:5
4020.21 66:6 91:24
102.21 108:25 1113,
14221 14455 149:19
talks (2) 67-14 20219
taxation (1) 144.25
tes (1) 38:24
team (1) 104.25
teather (1) 49:18
technical (2) 133
15725
technicalities (1) 45:2
teoth (1) &
telephone (1) 6:18
telling (1) 8:17
ten (2) 41:23 140:24
tendencious (1) 157:25
tenminute (1) 42:25
tennis (1) 146.25
tenor (1) 107-16
tension (1) 152.18
term (12) 15:13 16:25
2624 27 285,11
29:22 90:6 107.25
1143.21.22
terminable (1) 17-7
terminate (3) 22:2
2612.13,
terminated (1) 102:23
termination (28)
175,20 18:2 203
211819
22:,11,12.1320
23:7.21,28 24:19
2599.10
26:3,4,5,11,15 31:67
39: 6155 10222
terms (62) 6:2 17:6.13
2223 2341
27:238.13,16922
281,4.6,12,20,21,22.25
293 319.2139
35:22 42:20 43:13
55:14.16,17 67:2
137.9 7422 73:8
86:18,19 89:3 92:3
9422 95:18,19
96:10,15,20,25 97.1.8
988 1007
103:17,18,19 106-24
107.625
108:3.5,6,7.16
1132,24,15,15,
11415,7.9.10,20.25
11:12,13 116:15,20
116.7 125.6 146:2
147.16 158.45
test (6) 15:5 51:26
108.25 105:1,7 1259
tested (2) 17:10 41:7
tests (1) 110:7
thank (21) 9:22
11:14,38 19:21 202
42:22 60:7 83:10
8429 1122 11515
127.23 1287 133:8,12
140:22 142.12 146:23
153:23 158:16,20
thats (119) 113 46.16
6175 128,14 13:18
148 202.817 216
22:1 2412 2615
31:1 32:22 33:6.14
37:24 30:4,18 4221
447 4712.16 488
50:15 51:8 525.25
54:9 55:25 56.10 595
60:7 63:14,28 645
66:20 68:19,19
69:2.21,25 73:57
7421 75:12 76:6.7.10
788,17,21 79.15.15
0:18 62:1 85:25,
87:15 91:19 92:6.20
93:9,18 95:4 97:25
99:21,28 101.25
102.23 104:25,21
106:17 107:7 108:12
Moy? 112-22 1142.1
16:18 1199 1203
121:8.22 122:20.23
123:1,10.12,18,24
125:6 126:6,16 197.13
328:3,7 131.24 132.13
134:6 136:9,10 141.18
43:7 146-14 1477
1498 151:24 15221
153:9.17.19 154:13,22
155:1 158.17
themselves (2) 49.25
68:23
theoretical (1) 69:25
thereafter (3) 12:19
82:7 1129
therefore (14) 14:6 30:21
37:22 3915 44:18
65:10 702 69:22
109.16 138:7 143:8
147.25 148:9 1539
theres (16) 9:24 17:1
26:12 31:1 45:14 487
59:1,7 80:24 10420
120:5.23 130:10
149:17.24 1555
thereto (2) 1:20 114.7
theyd (3) 46:21 76.3.5,
theyre (8) 59:3 60:18,19
85:20 1141112
125:20 130:2
theyve (3) 94:6 110.21,
1322
thing (15) 22:21 23.23
2920 40:14 79:21
1109 13314 144.14
14:12 149.9,11
152:6.25 155:9 1561
third (10) 1:29 11:32
27:7 48.9 59:8,13.16
60:9 64:24 113:20
thirdly (1) 14:24
though (19) 127 24.6
473 49.7 58:9 65:4
69:20 72:18 76:11,19
82:15 68:4 94:5,12
una 1127 121.19
1233 12814
‘thought (13) 32:25,
34:5 62:19 63:2
7133 784 79:21
96:17 109:21 141.25
142.7 146.16 149:7
three (16) 119 14:22
17:7 2015 214,14
27:3 36:22.23,24
37:1,7 39:21 58:18
1133 127.7
through (22) 99 28:19
29:6 32.7 34:15
36:4 61.25 66:5 968
96:2.13 1039 111.15
17:16 125:24 136:16
136:18 1404.16
144:9,11,20
throughout (3) 99:25
108:18 138.25,
throws (1) 55:23
‘hursday (1) 151
tick (1) 86.25
fide (1) 49:1
te (1) 21:24
time (27) 4:8 5:20 33:6
101:6.23 107:19,
111.23 11914
124:16,19 13959
148:10 150.6,
151:11,16
155;10,26,16,21,23
156:2.10 157:18,21
1583
timebarred (1) 56:13
timehonoured (1) 61:14
tlmes (1) 4323
timetable (1) 5:20
timing (3) 44:4 62:10
145.14
today (22) 129,10.11
13:1,4 27-9 44:13 63:6
744.25 7:21.23
7918.23 139.1518,
140.19 14812 1495,
153:24 15634 157.12
todays (8) 11:12 12:12
THAI 79.22 8159
115.20 156.19
together (9) 21:24
77:45 79:12 93:19
110:6 116.13 126.25,
143.11 1527
told (6) 5:5 72:14
104:11 113.22 13912
wat
too (4) 29.15 1045.16
137.18
took (5) 21:4 26:19
55:12 13325 136.18
total (13) 33:23
122:3,17 1236
126:16,20 127.17,18
140:13 142.20
443.1117 1467
tough (1) 1537
towards (1) 62:8
trading (1) 29:18
train (1) 32:22
training (2) 37:17 36.18
transcribers (1) 41:24
transeript (4) 141:11,15
1428.11
transparency (1) 1:36
traversed (1) 43:13,
treat (1) 312
treatment (3) 29:14
95:2 108:24
trial (48) 5:20 10:24
126 144 1813 19:13
21:2 38:16 37:9,20.21
3827 39:5,17.25
46:28 49:4,8.9 50:89
51:22 57:4,15,21,
639,23 681.89
665.4 709
769,149.21 79:23
973,18 100:16,17
102:13 115:6 1534
156.18
fed (5) 17:10 23:56
68:25 76:25
trite (1) 85:17
trouble (4) 29:23,
130356 134:15
true (10) 26:10 53:11
61:10 9047 91:11
202.19 103:13 109.9
13243 1374
truly (2) 16:22 17.13
try (6) 29:10 43.15,
76:23 11022 187.46
trying (10) 10.25 26.1
17:22 32:6 34:3 87:6
934 145:15 154.16
1585
tuesday (2) 7:9 158:22
turn (2) 27:5 44:18
turning (2) 1121 157.9
turns (2) 140.9 146.17
type (5) 31:11 49:12
Tad 7312 96:16
typed (2) 9612.15
types (1) 26:22
ucta (2) 94:10 103.28,
tlterioe (1) 105:24
tltimate (3) 49.6 66.1
29.25
tunarguable (1) 43:20
uncertain (1) 141-19
uncertainty (3) 132-9
138 1444
unclear (2) 2:8 145.25,
‘unconditionally (1)
1151
‘underlying (3) 15:10
59:4 1255
tundemeath (2) 101.13
aro
underpinning (2) 10:8
11220
‘underpins (1) 4:3
tunderstand (85) 7:5
8615 1025 128.14
327 34:22 44:8 45.9
47-2 55:28 69:1 72:19
14:1 77.20.24 79:4.13
20:14 61:24 824,34
96:19 98:16 99:19
10417 11028 11:21
120,11 12523 1335
135:16,19 136:22
1391.5 140.22 142.5
143.23 144
146:13,21 157.8 1567
‘understandable (1)
125.19
‘understandably (1)
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‘understanding (3)
30:17 767 10631
understated (1) 135:11
understood (19) 30:18,
36:21 47:12 48:3 58:3
59:23 888 95:14
301-24 109.21 118.12
321.23 1222 126:14
328:15,19 13220
1332 14517
‘undertaken (1) 149.23
undertaking (2) 11213,
1553
‘undoubtedly (1) 112:22
tundue (1) 1920
unfair (3) 31:20 68:18
13236
fy (1) 33:14
unfairness (11) 33:17
36:8,12.20
37'5,6.24,25 38:1,12
42:16
unfortunately (3) 29:1
1309 145.19
unhelpful (1) 15218
tnilateraly (1) 8:10
unitary (1) 51:7
st (1) 66:10
unless (10) 9:22 14:9
25:13,24 41:8 105:23
11725 135.9 148.6
1508
untke (1) 86:16
uniikely (1) 79:22
unnecessary (2) 97:15
1439
‘unprincipted (1) 109.18
‘unravels (1) 52:16
saistic (1) 132-24
‘unreasonable (5) 97:16
98:3 99:16 105.5,
152
unsatisfactory (2) 46:23
967
unsuccessful (2) 86:19,
soa2
until (11) 8:19 27.17
51:3,12 53:15 56:3
57:23 66:18 151:14
158:16,22
‘unusual (10) 4:24 10:8
31:9 42:19 99:2,12
103:16,24 106:15
u1224
updates (1) 125:2
‘upon (14) 1:14 123
28:7 49:14 63:17
71:0 75:14 78:25,
80:7 97:2 106:22
320.1 15223 156:12
upstairs (1) 29:11
urge (1) 66:19
used (4) 25:8,26 61:21
98:25
useful (3) 2621 1287
135.23,
usefully (1) 5:29
ser (1) 69:14
sing (2) 17:25 12512
tity (1) 55:22
nf
v (13) 5:8 27:14 4918
66:22 709 63:17
105:9 107:20 108.2
ui27 1141321
116.10
valueless (1) 65:5
van (1) 872
various (5) 32.6 43:15
622 102.15 140.19
vat (8) 121:1.3 124.2
3275.12,18,20 129.6
vehicle (1) 152:7
venture (1) 148:24
verbatim (1) 134:14
version (5) 6:22.22,23
118.21 125:12
views (7) 3:13.13.17 53
1524.19 162
virtually (1) 28:13
virtue (1) 87:28
Visited (2) 23.21 132.25
volteface (5) 100:16.17
106:17 109:19,22
Ww.
wait (2) 141:5 151.14
waiving (2) 144:9,11
wanting (3) 30:11 47:9
1573
wants (8) 13:11 68:23
e223,
warrant (2) 17-1 92:18
warrants (1) 65:5
warwick (99) 1167
11720
1181,12,13,14,17,20.28,
11954 12,26,16,20.24
1204,12,16,21,28
121:146,9,13,22,24
12233 9,12,16,20,28,
328:1,320,12,16,18,24
10813724
125:14,16,18,22
1261,6.914.23,25
127:4611.14,16,22
128:3.6 129:18 130:3
133:14,18,19.20
1345.16
135:12,15,20.22
1366,10.20
137:3,7,24 138.22
139420 1404.12
142:15,22,24
143:15,21,25 144:20
146.24 147:8.18
156:22,24 159:16,20
wasnt (15) 5:21 8:11
1382211
2430.13.22 27.41
3021 36:4 528,19
569 96:21 13342
waste (1) 101:22
watershed (2) 100:10
11010
way (53) 4:7,10 9:25
365 17:1 21:8 22:22
2320 25:16 2612
2722 36:18 37.2
3920.25 44:23 46.15
49.a0 52:13 56.21
57.20 59:11 61:21
62.25 63:6 69:19
719 78:25 85:24
Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619
May 23, 2019
Alan Bates & others v Post Office Limited
POL00042714
POL00042714
Day 13H
96:66 97:16 98:2,10
99:2 106:9 107.1.21
1085.23 1093
1144 125.,7,23
130-3 131:18 1387
140.20 144.28 152:2.9
1535
wayne (1) 66.22
ways (1) 89:24
wd (1) 143:17
weakness (1) 105:22
wednesday (3) 71,6,14
week (1) 9:15
weeks (1) 1309
weill (5) 50:1,13,22
66:11 152.3
wellknown (1) 17:10
wellworn (1) 20:9
went (8) 2:4 48 38:2
78:18 94:17 104:10
110.6 1399
werent (4) 5:15 38:8
438585
weve (4) 97:22 10:4
10414 115
whatever (6) 17:18
48:19 65:8 75:12
nna 14729
whats (6) 58:24 796
86:11 103:4 111.23
13217
wheel (1) 935
wheeldon (1) 83:17
whenever (1) 15117
whereas (2) 74:25 79:13,
whichever (2) 9:7 125:7
whilst (2) 51:29 1526
whisker (1) 138:3
white (3) 72:13,17
7338
whoever (3) 48:5 77:19
816
whole (15) 15:11 29:23
30:14 63:10 76:19
100,135.19
107-3,39,19 10813
1102 11132
whom (1) 17:16
whose (2) 50:20 145:24
wide (1) 20:10
wider (1) 38:2
williams (1) 107.9
win (11) 62:21 73.5,16
75:6 76:2.13 67:22,23
908 102.18 15216
winner (6)
71:16,17,17,18,19,19
winning (1) 154.14
wins (1) 61:24
wish (3) 40:7 13:2
1205
wished (1) 5.3
withdrawing (1) 103.15
withoutprejudice (1)
oa
witness (9) 9:1.6 11:6
38:7,10,16 599 60:11,
eraz
witnesses (5) 1:25,25
35:20 56:16 107:3
wo (1) 125:7
wobbles (2) 139:1,3
won (16) 55:6 57:22
61:15,18 75:7 765
785 86:20,23,25
92:8,12 94:7.21,22
10313,
wonder (1) 46:10
wont (6) 93:25
1398.19 143.24
14624 152314
worden (12) 1:18 2:22
334.24 5:29.25
6320749
wordens (1) 6:4
wording (3) 132.6
1556
work (4) 109:9 112.12
M749
worked (2) 38:24 45:24
working (2) 12818
13819
workings (1) 6:1
world (1) 64:3,
worry (1) 127.5
worth (1) 73:3
wouldnt (8) 15:18 30.25
72:22 7420 76.14.19
13212 148.23
wrapped (1) 6412
wrinkles (1) 155:5
writers (3) 11:24 1372
14025
writes (1) 61:16
writing (3) 135.19
13411 139.10
written (15) 22:25 43°7
60:12 63:23 96:1
1094.25 1396 155212
1569,13,17 157:8,16
1589
wrong (26) 168.17
17.2.3 20:9 22:6 3622
443.9 473 56.28
58.18.18 59:5,8 68:21
7733 94:18 98:17
107813 111.23
1133.18 13524
1545
wrongly (1) 157:2
wrote (1) 5:1
x() 7411
vo00 (1) 46:17
y (1) 7412
yam (8) 15:25 16.2
1718 23:3,8.21,23
2817
year (2) 11:2 130:23
years (4) 17-11 90:7.9
10814
yesterday (10) 1:10,17
7.27.8,20 8:10 10:12
13:3 41:24
yesthank (1) 39:3,
yet (8) 59:15 61:18,24
62:23 68:20 127-2
14211 145:12
youd (3) 7:18 79:5
131316
youll (2) 109:7 119:4
youre (29) 19:17 20:21
21:20 25:1,14 2625
272 445 472 524
549 589,13 698
72:9 78:7 79:20 86:4
09:20 91:24 92:13.15
93:6 94:2 97:17
ni2.19 114.24 12322
wrt
yourselves (1) 1557
youve (10) 9:8 15:6
4366 75.9 67:11 69:8
uig:19 123:10
125:16.23
zero (2) 93:17 104:16
1 (31) 1320 2619 29:7
32.25 43:19 4:20.21
47:34 63:14 68:12
70:10,19,19 83:21
9156 97:3 10216
121:8.9,11,25 1242
32712,10,21 1447
145.21 152:21.24
3593
10 (22) 4:25 9:2 45:18
46:4 53:11 56.1 69:21
89:22 12014
126:5.8,13,17 127.16
128.19 1297.18
134:20 135.7
136:13,21 145:1
100 (4) 75:24 81:2.20
128:20
402 (1) 159:12
41030 (1) 1:2
4108 (1) 115.14
406 (1) 114.2
1062 (1) 1245
11 (9) 33.21 49539
5413.15 68:9,12
u0:13
110 (1) 61:4
110000dd (1) 40:19
1102 (1) 19.24
1108 (1) 19:26
112 (2) 83:11 15913
144 (1) 42:22
115 (2) 159:14.15
1150 (1) 42:2
1154 (2) 42:13,23
116 (1) 159.17
us (1) 159.18
Lith (2) 5:5,19
12 (10) 30:14,14 34.15
572.8 606
70:10,17,20 147.17
1204 (1) 42.25
128 (3) 36:13 13913
15919
13 (10) 59:17 122.0
125:4 1262 128:2
138:3,10 140:5 146:7
ura
132 (1) 37:15
133 (1) 159.20
1379 (1) 396
13th (1) 13105
14 (13) 29:4 3435.12
45:5 46:14 70:14,15
149/13,17 150:22,23
1594
143 (3) 39:23 141-15
142.10
147 (2) 35:16 159.21
45 (5) 222112317
76:23 13618
151 (2) 85:8 865
1512 (1) 73:22
1522 (1) 117
153 (1) 05:15
16 (6) 62,19 22:11,13
31:5 66:23
17 (8) 28:4.13 29:2
1375 141.23
1773 (1) 127.20
17738 (1) 12713
173810 (3) 127.34
1386
177381090 (2)
126:20.28,
18 (4) 4917.19.20
65.21
19 (2) 29:17 31.20
2 (21) 13:21 22:16 29:8
44:39 47:15 65:01
66:22 68:13 95:25
105.5 11512 125:5
1384.4 1405.16
42.19 143:20
147716 152.22
20 (6) 1238 2920
31:20 46:25 09:22
10519
2016 (1) 46:22
2017 (11) 95:21,23 97:7
99:10 125:4 130:23,24
13721 1382
14219.28
2018 (21) 1020 455
46:14 475 6026
82:57 83:18 95:25,
101.9 11031,323
122:10 125:4,20 1302
1383 1405 146.7
2019 (3) 1:1 83:18
150.22
24 (@) 43:22 150:24
155:10,17 156811
1572.15
210 (3) €1:8 63:10,13
218 (1) 8325
(2146311 (2) 127:22
1281
215 (1) 84.2
22 (2) 1301148
23 (aa) 14 232 3122
32:01 33:4 357
102.17 1045 1126
12610 1302.16
(2384 (2) 123:19 124:2
24 (3) 22:16,18,19
2403 (1) 65:19
25 (7) 39 612 3033
56:22 104.19 130:21
1352
250000 (2) 139:9 140:6
256 (1) 19.28
26 (7) 50:1,4 1047
105:5,6 112.7 136.13
268 (1) 9119
27 (4) 49:21 65:22 84:9
116.3,
279 (1) 125:25
27900 (1) 1217
2790000 (2) 120:13
yaa
28 (11) 66:12 895.7
105.2 111.16 1362
149:12,16,17
150:17.22,
29 (8) 6:14 23:8 92.25
130.14
295 (2) 91:21 92:21
295635150 (1) 126.19
296 (1) 92:22
3 (8) 5:14 617 817
42:15 91:24 92:1 93:2
1447
30 (5) 30:16 44:15 84:9
108:15,19
300 (1) 15:16
300000 (4) 12:17 13:20
121.20 13914
3013 (1) 12924
3013200 (1) 129:16
308 (1) 11518
31 (11) 30.23 6418.24
657 10114
119:19,20 120.25
125:25 1296 143:19
31000 (1) 121.7
318 (1) 1355
34st (3) 9516.17.19
32 (8) 51:15 5259
63:15,17 143.18 1468
147.16
3204 (1) 12216
3204835 (1) 12616,
33 (10) 3116 50:24
52:7,8 63:15,16,20
65:18 15225 1532
33348 (1) 1296
3348000 (1) 129:15
3375900 (3) 1225
12845
3379500 (1) 127.25,
339 (1) 141.7
34 (1) 10113
345 (1) 1416
348036250 (1) 119.18
35 (6) 39 10429
105:13,18,21 142.18
351 (1) 1419
3514 (2) 43.107
353 (1) 37
35476218 (1) 127.12
358 (1) 147.21
36 (2) 55:9 105:11
36b (1) 106:8
36e (1) 1079
37 (3) 421415.15
39 (1) 60:14
3a (1) 134
3b (1) 135
4 (16) 13:20 22:22 46:7
777.8 91:25
92:4,22.23,24 1401
1445 1472
158:16,18,22
40 (1) 53:4
406 (1) 147:23,
44 (7) 30:24 141.17
1422 143.17,19
146.5 147:17
415 (1) 1402
418080335 (2)
14220,22
419 (1) 158:21
42 (4) 59:18 67.8.8
1595
42a (1) 12618
43 (1) 1596
44 (1) 73:19
4465 (1) 79:6
AAT (2) 248.23
45 (1) 128:22
487 (2) 248.28
46 (2) 73:20 128-22
466 (2) 73°22 79.24
4664 (1) 78.9
4665 (3) 74:8 75:29
aur
46658 (1) 7:4
49 (2) 130:7 131.6
4a (2) 465.18
4b (1) 77:14
4point (1) 14221
5 (8) 48:24 7:10.12
84:28,22 10418
wrat
50 (8) 67:4 76:12 130.7
1316
500 (1) 76:13
‘500000 (1) 1408
S00odd (1) 40:19
51 (1) 675
52 (1) 155.25
52122 (1) 1564
53 (1) 67:24
54 (2) si:11,13
550 (1) 143:5
1558000 (2) 121.23
560 (1) 143:5
569 (1) 329
37 (1) 31:21
59 (1) 1142
502 (1) 124:3
503 (1) 124:15
504 (1) 124:17
505 (1) 124:18
5a (2) 118:18,19
6 (2) 49:2 52:22
660 (9) 122:19 123:17
126:3,19.22 128.01
130-4 1386 144.22
61 (1) 159:7
(614254006 (1) 123:7
615 (1) 140.13,
61a (1) 114.23
6384 (1) 143:12
(669 (1) 30:17
OF (2) 32:2 35:4
675 (1) 30:17
68 (4) 32:3,6.8,11
Godd (1) 142.3
6th (1) 10:22
7 (43) 13:20 31:20
5022.14.15 63:14
esi 69:21
90:22,24.25 10236
15225
73 (1) 35:20
74 2) 11835 14310
74a (1) 14321
7b (1) 125:12
8 (4) 42:16 50:12
854,12
a1 (1) 1598
84 (2) 159:10,11
865 (2) 18:33
1988 (2) 19:20,23
893 (1) 206
994 (1) 207
{899 (4) 20:19 22:16,22
262
9 (8) 26:20 54:19 56:11
69:2,3 13413 14115
142.10
90 (19) 125:13,16.25
126-4 12725 128:25
1295,10.13,14,15
130: 133.2123
1346.24 13524
1368.18
‘90000 (1) 11922
928 (5) 90:17 92:19,22
92:10 945
Opus 2 International
Official Court Reporters
transcripts@opus2.com
0203 008 6619