POL00256627
POL00256627
THE POST OFFICE GROUP LITIGATION
Claim Nos. HQ16X01238, HQ17X02637 & HQ17X04248
BETWEEN:
ALAN BATES & OTHERS
Claimants
-and-
POST OFFICE LIMITED
Defendant
NOTE ON ADMISSIBILITY OF EVIDENCE
FOR THE COMMON ISSUES TRIAL
Introduction
1. The purpose of this Note is to consider the admissibility of witness evidence for the
Common Issues Trial. The context is as follows:
(1) Ina Response to RFI dated 16 May 2017, the Claimants (“Cs”) state that the matrix
of fact on which they rely for the construction of the SPMC and the NTC is “all
pleaded facts” (but then proceeded to give a non-exhaustive list of paragraphs in the
Generic Particulars of Claim): see Answer 8.
(2) In the Generic Defence & Counterclaim (“GDXC”), Post Office pleads various
matters as matrix of fact for the construction of the SPMC and/or the NTC: see paras
76 to 80, 85 and 93 to 94.
(3) IThe Common Issues Trial is limited to the determination of the Common Issues in the
6 Lead Claims. The Managing Judge has warned Cs that irrelevant (and so
inadmissible) evidence may be struck out.' Cs appear to take a very broad approach as
to the evidence that will be required at the Common Issues Trial. They have argued
that the Court will require evidence as to how the contracts “worked in practice”: see
pages 58 and 61 of the transcript for the 5 June 2018 CMC (“5 June Transcript”).
* See page 59 of the transcript for the 5 June 2018 CMC
POL-BSFF-0094690
POL00256627
POL00256627
(4) There is a Joint Statement of Factual Matrix, but little of it is agreed. It has not
assisted in resolving the parties’ divergent approaches as to admissibility. Cs have
included many facts that are, in our view, plainly inadmissible on issues of
construction: see for example at para. 54 of the Joint Statement — “he Defendant in
fact sought recovery from the Claimants for apparent shortfalls”.
We note below, and emphasise at the outset, that the prospects of success in an application
to strike out parts of Cs’ evidence will be reduced if Post Office’s evidence also contains
inadmissible evidence. This may have a substantial impact.
The principles of admissibility for contractual interpretation
3.
Many, but not all, of the Common Issues are issues of contractual interpretation. In relation
to these issues:
(1) _ Evidence as to what was said during the course of negotiation is (generally)
inadmissible: Chartbrook v Persimmon Homes [2009] I A.C. 1101 at [41]. Such
evidence is, however, admissible to show that a fact asserted to be part of the
background to the contract was known to the parties (or, in principle, that the fact was
available to them).
(2) _ Any evidence as to what in fact occurred after the agreement was entered into will be
inadmissible: see, for example, Arnold v Britton [2015] A.C. 1619 at [21] per Lord
Neuberger.
(3) IThe Managing Judge has referred the parties to Tartsinis y Navona Management
Company [2015] EWHC 57 (Comm) at [9] and [10] where Leggatt J (as he then
was) said as follows:
9 The first [distinctive feature of the rules of English law governing the
interpretation of contracts] is that, in deciding what a contract means, English law
does not attempt to identify what the parties actually understood or intended the
language used in the contract to mean. Instead, the law adopts an “objective”
approach to interpretation. As Lord Hoffmann might have said, I do not think that
the extent to which this is so is always sufficiently appreciated. It is not simply that a
court, in interpreting a contract, has no window into the minds of the parties and
must therefore necessarily draw inferences about what the parties were using the
language of the contract to mean, adopting the standpoint of a reasonable observer.
What the parties to the contract actually meant, or whether they had any pertinent
subjective intention at all, is irrelevant to the task of interpretation. Rather, the
court identifies the meaning of the language used by assuming that the parties were
reasonable people using the language of the contract to express a common
POL-BSFF-0094690_0001
POL00256627
POL00256627
intention. As Lord Wilberforce said in Reardon Smith Line Ltd v Hansen-Tangen
(The “Diana Prosperity”) [1976] 1 WLR 989 , 996:
“When one speaks of the intention of the parties to the contract, one is speaking
objectively ... and what must be ascertained is what is to be taken as the
intention which reasonable people would have had if placed in the situation of
the parties.”
10 A second important feature of the applicable rules of English law is that evidence
of what was said during the negotiation of the contract is not admissible for the
purpose of interpretation. One reason for this is that such evidence is generally of
no help in ascertaining the objective meaning of the document. Even where such
evidence could potentially bear on that meaning, however, it is not admissible:
see Chartbrook v Persimmon Homes [2009] 1 AC 1101, 1120-1, para 41. Evidence
of the subsequent conduct of the parties is also inadmissible to interpret a contract:
see e.g. James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd
[1970] AC 583.
Despite this, it appears that Cs wish to rely on evidence as to what in fact happened in the
course of the contractual relationship for the purpose of interpreting the contracts. For
example, Cs have argued that the Court has to see how the relationship worked in practice
in order to understand submissions as to commercial sense and businesses efficacy: see
page 61 of the 5 June Transcript. We consider that an argument to that effect will fail:
anything that was not known to (or at least knowledge available to) a person in the
position(s) of the parties at the time of contracting cannot be admissible matrix of fact. It
would be irrelevant to the proper construction of the contracts if Cs could show that, in the
light of events as they developed, it would have made better commercial sense for the
parties to have agreed something different (or, which is the same thing, for the words of the
contracts to mean something different).
There are several caveats to bear in mind when seeking to apply the strict rule as to
admissibility.
First, if the contract is varied, the matrix of fact for the variation may include matters that
post-date the original contract but pre-date (or are contemporaneous with) the variation. Cs
may seek to bring in a lot of otherwise inadmissible evidence in reliance on the fact that the
contracts were varied from time: see, for example, page 59 of the 5 June Transcript’ and the
recent amendment to para. 64 of the Sabir IPOC. As to this:
? Mr Green QC refers to Post Office having made a concession that, to our knowledge, it has never made. Post Office would
accept that the term that is varied may be interpreted by matrix of fact that is contemporaneous to the variation (as opposed
to the original contract), but not that the whole contract is thrown open to interpretation by reference to post-contractual
POL-BSFF-0094690_0002
@
2)
POL00256627
POL00256627
Factual matrix that post-dates entry into the contract but which pre-dates (or is
contemporaneous with) a variation is admissible for the purpose of interpreting the
varied term: see Portsmouth City FC Ltd v Sellar Properties (Portsmouth) Ltd
[2004] EWCA Civ 760 at [47] per Chadwick LJ, with whom Maurice Kay LJ and
Buckley J agreed. By parity of reasoning, this should apply also to any terms that are
so closely related to the varied term that they can be said to form part of the subject
matter of the variation. The “new” factual matrix is not admissible for the purposes of
construing the rest of the contract.
In the Individual Particulars of Claim and the Response to RFI dated 21 May 2018
(supplemented on I June 2018), Cs have failed to identify any variations to the
contracts that might affect substantially the construction of any of the important
contractual terms. We do not see how the variations that have been pleaded could
justify reference to important additional matrix of fact for the purposes of construing
the key provisions. Cs do not draw any connection between the variations that they
plead and the construction of any of the terms in issue. A good example of this is the
amended plea at para. 64 of the Sabir IPOC: Cs do not identify any term that is
alleged to have been varied, and any variation to a term setting out Mr Sabir’s
remuneration would, on the face of it, have nothing to do with the points of
interpretation and implication that are in issue.
If Cs want to rely on any variation to bring in new (otherwise inadmissible) matrix of
fact, they should identify the terms that were varied and the relevance of the new
matrix material to the interpretation of the varied term and/or any other terms that
(although unchanged) form part of the subject matter of the variation. They have not
done this in their Individual Particulars of Claim, but it is possible that Cs may
improve their case in this regard in the lead-up to the trial.
Second, Post Office is itself likely to wish to lead some evidence that is arguably
inadmissible in accordance with the strict rule. Specifically:
rod)
Post Office may wish to give some generic evidence as to the nature and quality of
the training and support that it offered. This would, on a strict application of the test
for admissibility, be inadmissible because the provision of training and support will
necessarily post-date the contract. Strictly, it cannot be matrix of fact. Post Office
can, however, argue that such evidence merely illustrates the kind of training and
support that would have been anticipated at the time of contracting. For this reason, it
may be useful to stress in the evidence the extent to which the training and support
POL-BSFF-0094690_0003
POL00256627
POL00256627
are industry standard or otherwise are consistent with what a reasonably well-
informed prospective SPM would anticipate.
(2) Post Office will wish to provide a more detailed account of the operations of the
network and individual branches than would have been known to the Lead Claimants
at the time of appointment. Post Office can defend this by arguing (a) that the
information that it provides was known to it, Post Office, and was readily available to
the Lead Claimants, such that it may be used as matrix of fact’ and (b) drawing any
precise line as to what the Lead Claimants can be taken to have known about the
operations of the network and individual branches is difficult (and may vary from
case-to-case), such that the fairest approach is for Post Office to give a relatively full
account and for Cs to have an opportunity to argue which parts of that account may
not be taken into account for the purposes of construction, in individual Lead Claims
or generally. If this second argument is accepted, Post Office should be able to say
that, with Cs’ evidence, the line between admissible and inadmissible evidence is, at
least generally, much easier to draw.
(3) Post Office will doubtless wish to adduce evidence as to the fact that SPMs, but not
Post Office, had (or were able to have) first-hand knowledge of the transactions
effected in the branch and were able to select and supervise assistants. This evidence
should, however, be generic rather than specific to any particular SPM.
(4) More generally, there will likely be evidence that Post Office wishes to rely on that,
although strictly inadmissible on points of construction, is useful evidence for the
Common Issues Trial because, for example, it may (a) assist the Court in
understanding the background and context in which the issues arise and/or (b) reduce
or eliminate the prejudicial effect of evidence and/or argument put forward by Cs
and/or assist in showing that implied terms alleged by Cs would be unreasonable and
would not have been agreed by Post Office acting reasonably. It will require an
individual assessment of evidence of this kind as to whether the advantages of
seeking to adduce it outweigh the negative effects of doing so, which will include
undermining the consistency (and persuasiveness) of Post Office’s position on
admissibility. It may be difficult to defend the admissibility of any detailed evidence
* A fact may qualify as matrix where it was “background knowledge which would have been available to the parties”: Rainy
Sky SA v Kookmin Bank [2011] 1 WLR 2900 at [21]
POL-BSFF-0094690_0004
6)
POL00256627
POL00256627
going to, for example, the risk of fraud that Post Office faces, but we understand the
reasons for which Post Office will want to have that kind of material before the Court.
Cs will no doubt complain that, in doing these things, Post Office is applying a
different standard to its own evidence than it is applying to Cs’ evidence. The
Managing Judge may have some sympathy with this complaint, and Post Office’s
attempt to adduce evidence of this sort will undoubtedly make an application to strike
out Cs’ evidence more difficult. But if Post Office’s “arguably inadmissible”
evidence is kept within sensible bounds and it is drafted in such a way as to make its
modest nature and purpose apparent, and if Cs’ approach to their evidence is as wide
and unprincipled as it seems likely to be, we expect that a strike out application would
still be worth making.
8. Thirdly, there may be documents that post-date the contract but which reveal that a fact was
known by (or available to) the parties at the time the contract was entered into. Such
evidence could be admissible as proof of the pre-contractual position. We are not aware of
any important examples of this kind of evidence.
9. Fourthly, there are issues in relation to which Cs may argue that the strict rule does not
apply. This point is addressed further under the next heading.
Issues to which the strict rule as to admissibility may be argued not to apply
10. As noted above, not all the Common Issues are issues of contractual interpretation (or at
least are not wholly issues of interpretation). Specifically:
oD)
Q)
(3)
(4)
6)
Common Issue I is whether the contracts were “relational contracts” in the sense in
which that term is used in Yam Seng Pte v International Trade Corp [2013] 1 CLC
662 (“Yam Seng”).
Common Issues 2, 3 and 4 concern whether terms should be implied into the
contracts.
Common Issues 5 and 6 concern the application of the principle in Interfoto Picture
Library v Stiletto Visual Programmes [1989] QB 433 (“Interfoto”).
Common Issue 7 relates to the Unfair Contract Terms Act 1977 (“UCTA”).
Common Issues 10 to 13 cover the duties of agency and accounting owed between the
parties.
POL-BSFF-0094690_0005
POL00256627
POL00256627
(6) Common Issues 17 and 18 relate to the principle in Autoclenz v Belcher [2011] ICR
1157 (‘Autoclenz”) and the parties’ “true agreement” as to termination.
ll. Each of these issues is considered briefly below.
12. First, the issue of whether the contracts were “relational contracts”:
(2) Nonetheless, the better view is that the “relational contract” issue is a matter of
determining the scope and meaning of the parties’ intended/expected relationship and
is therefore so closely related to contractual interpretation that the same rules as to
admissibility should apply. There are at least the following reasons to prefer this
analysis:
(a) In both Yam Seng and Al Nehayan v Kent [2018] EWHC 333 (Comm),
Leggatt LJ approached the issue as being capable of determination at the outset
of the agreement and by reference to its terms and context, rather than asking
how the agreement in fact operated.
(b) The focus of Leggatt LJ’s analysis is on the parties’ legitimate expectations
and, in particular, the nature of performance that they would reasonably expect
of each other. He does not focus on the nature or quality of the performance
actually provided.
(c) The ultimate objective of Leggatt LJ’s analysis is to justify the implication of a
term (or terms) as to good faith. If, as set out below, the implication of terms is
subject to the same admissibility rule as contractual interpretation, it should
follow that determining whether a contract is relational (which is part of
determining whether a term should be implied) takes place without regard to
evidence as to the nature or quality of the performance actually provided.
‘In our view, however, it is clear from Yam Seng that the focus is on the parties’ reasonable expectations at the time of
contracting, which is consistent with the application of the strict rule
POL-BSFF-0094690_0006
POL00256627
POL00256627
13. Secondly, the Common Issues as to the implication of terms:
(1) As noted above, Cs will likely argue that the Court cannot assess the competing
submissions as to commercial sense and/or business efficacy without regard to the
facts of the contractual relationship in practice. This is wrong in relation to the
construction of express terms — see above — but Cs may make the same argument in
relation to the alleged necessity of implying terms, on the basis that the process of
implication is not the same as the process of construction (which is true, so far as it
goes: see Marks and Spencer vy BNP Paribas Securities Services Trust [2016] AC
742 at [26] - [31] per Lord Neuberger’).
(2) In our view, that argument would also be wrong:
(a) In Marks and Spencer, Lord Neuberger described the implication of terms in
fact as follows: “...a term which is implied into a particular contract, in the
light of the express terms, commercial common sense, and the facts known to
both parties at the time the contract was made” (emphasis added), reflecting
the rule of admissibility for the construction of express terms.° He went on to
say, at [23], “the question whether a term is to be implied is to be judged at the
date the contract is made”. This is unsurprising given that the classic tests for
implication — the “so obvious as to go without saying” and “officious
bystander’ tests — are necessarily applied at the time of negotiation / conclusion
of the agreement.’ It is therefore inappropriate to rely on hindsight and/or to
fashion an implied to make the agreement fairer in light of post-contractual
circumstances. This has been confirmed very recently by the Court of Appeal
Lords Sumption and Hodge JISC agreed. Lord Camwarth disagreed on this. Lord Clarke JSC took a middle path.
° On its face, this is perhaps narrower than the rule of admissibility for the purposes of construction of express terms, which
permits evidence of facts that were available to the parties.
See, e.g., Lewison, [6.09]
POL-BSFF-0094690_0007
POL00256627
POL00256627
in Bou-Simon v BGC Brokers LP [2018] EWCA Civ 1525 at [12] per Asplin
LJ.* In our view, the answer is clear on the face of these binding authorities.
(b) Even putting the authorities aside, there are very strong reasons to apply this
approach:
(i) _ The implication of terms forms part (albeit a special part with specific
tules) of the composite exercise of determining the scope and meaning of
the contract.’ It would be strange and unprincipled for different rules of
admissibility to apply to different parts of that composite exercise.
(ii) There is also a basic conceptual problem with the argument that post-
contractual matrix of fact can be used to support the implication of a
term. If an implied term only becomes necessary in lights of facts that
occurred after the date of the contract, that term could logically only be
implied from the date of those later facts. This is because, ex hypothesi,
the implied term was not necessary before that date and so did not fall to
be implied. In this circumstance, the contract would be varied at the date
on which the new implied term fell to be implied. A claimant seeking to
rely on post-contractual facts to imply a term is therefore seeking a
variation of the contract, which is a different process to which a different
test applies.
14. As regards the principle in Interfoto, the question is one of incorporation of terms (or, to
similar effect, preventing one party relying on an onerous or usual term of which
insufficient notice was given). It relates inherently to the time of entry into the contract, and
the term must be capable of analysis as at that date, i.e. before any facts of performance or
breach are known in order to determine what, if any, special notice must be given before the
term is incorporated (or can be relied upon). If the term fails the Interfoto test, it was never
incorporated (or was only incorporated subject to a bar on reliance). It follows that post-
contractual evidence is inadmissible for the same reasons as the strict rule applies to issues
of interpretation and because evidence of facts that were not known or capable of
anticipation at the time of the contract cannot logically affect the amount of notice that
ought to have been given.
* Hickinbottom and Singh LJJ agreed.
° ‘This sentence reflects the reasoning of Lord Neuberger at [26] to [27] in Marks and Spencer.
POL-BSFF-0094690_0008
17.
POL00256627
POL00256627
As regards the application of UCTA 1977, section 11(1) sets out the test for reasonableness
as follows: “the term shall have been a fair and reasonable one to be included having
regard to the circumstances which were or ought reasonably to have been, known to or in
the contemplation of the parties when the contract was made” (emphasis added). Evidence
as to how the contractual relationship worked in practice is accordingly irrelevant to the test
of reasonableness under UCTA and is inadmissible.
The situation is less obvious for Common Issues 10 to 13, all of which relate the duties of
agency and accounting owed between the parties. The issues are as follows:
(10) Was Post Office the agent of Subpostmasters for the limited purposes at GPOC
paragraphs 82 and 83?
(11) If so, was the Defendant thereby required to comply any or all of the obligations at
GPOC paragraph 84?
(12) Was the extent and effect of the agency of Subpostmasters to Post Office such that
the principles of agency alleged at Defence 91 and 93(2) and (3) applied as Post Office
contends?
(13) Did Subpostmasters bear the burden of proving that any Branch Trading Statement
account they signed and/or returned to Post Office was incorrect?
In our view, the correct analysis is as follows:
(1) I Cs’ contention that Post Office was the agent of SPMs (for any purpose) cannot
succeed unless it is shown that (a) Post Office agreed to act as agent and/or (b) Post
Office undertook one or more of the characteristic roles of an agent. As set out in the
Individual Defences," our view is that there is no pleaded case that could justify
either conclusion. We can therefore argue that evidence that does not aim at proving
either of these things does not become admissible at the Common Issues Trial
because of the contention that Post Office was an agent of SPMs. If the Managing
Judge is persuaded of our position on the law, it should follow that the evidence from
Cs on this issue should be quite focussed if it is to be admissible.
'° See, for instance, paras 95 to 98 of the Bates Defence.
POL-BSFF-0094690_0009
POL00256627
POL00256627
(2) I The two factual questions identified above should, for the most part, be capable of
determination by reference to, at most,"' the high-level nature of the relationship
between the parties (i.e. a contractual relationship governed by detailed express
terms) and any important (and general) practices that arose over time that might
demonstrate the assumption of an agency role, rather than by reference to the facts of
individual cases. It would be very surprising for Post Office to have become an agent
to some but not all SPMs, this depending in each case on the precise facts of the
individual relationship. Generic evidence is likely to be admissible where it addresses
the differing positions of the parties in terms of access to information relevant to the
account.
(3) Nonetheless, it would be difficult to argue that any evidence of post-contractual
conduct in an individual case will necessarily be inadmissible. It is, in principle, open
to a Lead Claimant to show by evidence that, after the date on which his SPMC or
NTC was agreed, Post Office agreed to act as his agent (by word or conduct) and/or
undertook one of the characteristic roles of agent in his specific case. We think
evidence of this kind would be hard to attack on the basis of admissibility.
(4) _ As regards the SPM’s duties as agent, including the duty to account and the
accompanying principles (most relevantly, the burden of proof under Common Issue
13), the situation is nuanced:
(a) Post Office’s case is that the obligation to account and the related principles
arise from the express terms of the contract, including the SPM’s agreement to
act as agent and an accounting party (with the ordinary common law duties that
follow from these statuses). Those points do not require any factual evidence
specific to the Lead Claimants, as they rely on the interpretation of the contract
and legal argument.
(b) However, Cs argue that the principles on which Post Office relies are not
applicable to the kind of accounting at issue in these proceedings, and it is in
issue on the individual pleadings whether or not the accounting relationship
between the parties was “traditional”: see, for example, para. 101(3) of the
Bates Individual Defence. This is a matter on which evidence could, in
principle, assist in characterising the accounting relationship, including by
1! Post Office can of course argue that the agreement alleged by Cs should not be found because it would contradict the
express terms agreed between the parties and cannot have been agreed.
POL-BSFF-0094690_0010
POL00256627
POL00256627
comparison with other accounting relationships. We consider that Post Office
and Cs can each legitimately adduce evidence on this fairly broad issue.
(c) _ Itis therefore likely that Cs would be permitted to lead some evidence to show
how the accounting relationship operated, including as to the differences
between that relationship as it was in fact and what Cs refer to as “traditional
accounting”. Post Office will argue that such evidence should be kept under
careful control and should not stray into evidence of breach — the fact, if
established, that Post Office breached any duties owed to Subpostmasters is
logically irrelevant to the proper characterisation of the accounting relationship
(although it may affect the application of the accounting principles to any
particular case"’). The evidence should focus on the proper operation of the
accounting relationship as set out in the contract and related documents, rather
than any SPM’s specific experience of that relationship (which might be wholly
unrepresentative).
(d) Inpractice, given that fairly fine distinctions are being drawn here, may well
prove hard to exclude evidence as to the nature of the accounting relationship
generally, unless that evidence clearly relates to allegations of breach.
"? See, for instance, para. 100 of the Bates Defence.
POL-BSFF-0094690_0011
POL00256627
POL00256627
Application to the evidence that Cs may wish to rely on
19.
20.
21.
In the Individual Particulars of Claim, Cs plead various matters that are, on the face of it,
irrelevant to the Common Issues. Evidence of those matters would appear to be
inadmissible. Mr Abdulla, for example, pleads the following facts evidence of which is very
likely to be inadmissible:
(1) I The training provided to him was insufficiently detailed and did not cover various
matters (paras 23, 25, 26 and 28).
(2) He requested, but was not provided, help with balancing (para. 29).
(3) The Helpline was (in summary) not very helpful (paras 36 to 39).
(4) Post Office did not inform him that other Subpostmasters were experiencing similar
problems with apparent shortfalls (para. 40).
(5) His ability to train assistants was limited as a result of the inadequacy of his own
training (para. 33).
(6) Post Office introduced and withdrew products. Post Office refused a request to install
an ATM at his branch (paras 34 to 35).
(7) He experienced shortfalls (paras 41 to 45).
(8) His branch was audited, and he was suspended (paras 48 to 52).
(9) Post Office summarily terminated his appointment and thereafter pursued him in
relation to a shortfall (paras 53 to 58). Note that some of this may be admissible in
relation to the Autoclenz issue (although it is difficult to see how it could assist Cs in
this regard).
The other Lead Claimants all plead similar matters. Much of it, if pursued in evidence, will
be fairly easy to identify and clearly inadmissible.
Mr Bates and, to a lesser extent, other Lead Claimants plead correspondence with Post
Office in relation to shortfalls. Mr Bates will almost certainly want to rely on the
correspondence that he exchanged with Post Office, especially given that Cs plead, as part
13
POL-BSFF-0094690_0012
22.
23.
24,
POL00256627
POL00256627
of the “true agreement” a restriction on the right to terminate that is aimed at his case
specifically: see para. 70.4 of the Amended Generic Particulars of Claim. As to this:
(1) I The correspondence is obviously inadmissible on issues of contractual interpretation
and implied terms.
(2) _ Itis likely to provide weak but probably admissible evidence in relation to the
Autoclenz issues. But the position here is curious: if Post Office terminated Mr
Bates’ appointment in response to his correspondence, this would seem to provide
evidence that the parties did not agree, as part of the alleged “true agreement”, that
Post Office would not terminate SPMs for such a reason. It would, if anything,
undermine Cs’ case. It is difficult to predict how Cs will pursue the point in evidence
and submissions.
It also seems likely that the Lead Claimants will try to rely on information that was not
known (or available) to them at the time of contracting. Cs may, for example, want to
provide evidence in relation to any details of the relationship between Post Office and
Fujitsu that they consider strengthens the overall narrative that they advance. A similar
position may arise in relation to any specifics of the operation of Horizon and the bugs and
flaws that have been detected. Any such evidence will likely be admissible.
The Lead Claimants also plead various matters that are likely to be, in whole or in part,
inadmissible but in relation to which drawing the line between admissible and inadmissible
evidence may be difficult.
First, taking Mr Abdulla for example, he pleads that Post Office did not inform him that he
had any contractual responsibility to train assistants (paras 31 to 32). Evidence of this kind
could, if drafted carefully, be admissible in relation to Interfoto and UCTA, insofar as it
touches upon the notice that he had of the terms as to responsibility for assistants. Where
evidence relates to things said or done after the contract was entered into, it will only be
inadmissible if it sheds light on the pre-contractual position: for example, if an SPM
acknowledged a particular responsibility without query or complaint soon after entering into
the contract, this might provide some evidence that the SPM had adequate notice of the
responsibility before signing the contract.
Second, to take an example from Mr Bates, he pleads that Post Office “gave [him] the
impression that Subpostmasters were or would be “working in partnership” with the
Defendant” (para. 4). It may depend precisely how this kind of point is put in evidence
14
POL-BSFF-0094690_0013
26.
27.
POL00256627
POL00256627
whether or not it will be admissible. Evidence as to Mr Bates’ subjective intention and
understanding is inadmissible, as is evidence as to the course of the negotiation; but, in
general terms, evidence as to what was said and done in the appointment process may be
relevant to some of the issues as to notice under Interfote and UCTA. It may well prove
difficult to strike out any part of the account given of the appointment process, unless it is
drafted in a very unsophisticated way and, for example, refers expressly to a subjective
intention.
Third, Ms Stockdale pleads various “investments” (some of which are not investments in
any real sense) that she contends she made in the parties’ relationship (para. 26). Several of
the actual investments that she made were post-contractual and inadmissible on points of
interpretation. It may be that the Court will take a more liberal view of this kind of material,
given that it does not go to breach and might be considered general narrative of the
relationship.
The Lead Claimants plead various other matters that, although having nothing to do with
the appointment process, are relevant to one or more Common Issues:
(1) Mr Bates refers at para. 27 of his IPOC a letter dated 9 April 2002 in relation to the
network reinvention programme for outgoing SPMs. Evidence in relation to the
scheme (and similar schemes) will be admissible in relation to the Autoclenz issue.
(2) Mr Bates pleads at para. 39 his use of the “Capture” accounting system prior to the
introduction of Horizon. It is possible, depending on Post Office’s knowledge as to
the earlier systems in use, that the characteristics of the off-the-shelf accounting
systems may be relevant to some of the issues of contractual interpretation (at least
for Lead Claimants who operated both before and after the introduction of Horizon).
This is not a point that we have considered in detail, and we may need to revisit it
once we have seen how these matters are put in evidence.
(3) Mr Bates and others plead that they were unable themselves to identify the causes of
apparent shortfalls: see para. 52 of the Bates IPOC. If drafted carefully so as to relate
to the inherent limitations on the information available to SPMs (rather than being
specific to any difficulties encountered by the Lead Claimant and/or any failings on
the part of the Post Office), evidence of this kind is capable of being admissible in
relation to various Common Issues (notably, the construction of section 12, clause 12
of the SPMC and the agency issues). Admissibility is likely to depend on the extent to
POL-BSFF-0094690_0014
POL00256627
POL00256627
which the evidence goes beyond that which was known by (or reasonably available
to) the parties at the time of contracting.
28. Overall, the likely position is as follows:
rep)
2)
It may be fairly easy to identify parts of Cs’ evidence that recount details of a Lead
Claimant’s experience as SPM from the date of his or her appointment and which are
inadmissible. This will typically include, as most relevant:
(a)
(b)
(d)
(e)
accounts as to the quality and breadth of training and support;
general narrative as to the Lead Claimant’s experience of running the branch
where this largely takes the form of an account of alleged failings on the part
of Post Office and irrelevant information as to their own personal
circumstances and difficulties;
accounts of shortfalls, their investigation and any other problems in the
operation of the branch;
complaints in relation to Post Office’s introduction and withdrawal of products
and services;
complaints as to the Lead Claimant’s suspension and the events that followed
termination.
By contrast, while some of the evidence given on the following topics is likely to be
inadmissible, parts of it will be admissible, and drawing the dividing line may prove
difficult, and probably impossible on a strike out application:
(a)
(b)
(c)
accounts of the process of appointment and the steps leading up to it, likely
including the Lead Claimant’s subjective intentions and understanding (which
are strictly inadmissible on most issues);
accounts of things said and done by Post Office staff at or around the time of
appointment, much of which may well be inadmissible on most or all issues;
narrative as to the inherent limitations on an SPM’s access to information and,
in particular, ability to identify and explain the possible causes of apparent
shortfalls, much of which is likely to be admissible;
POL-BSFF-0094690_0015
POLO0256627
POL00256627
Legal Privilege.
POL-BSFF-0094690_0016