Filed on behalf of the: Defendant
Witness:
Statement No.: First
Date Made: 16 March 2019
Claim Nos: HQ16X01238, HQ17X02637 & HQ17X04248
POST OFFICE GROUP LITIGATION
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN’S BENCH DIVISION
BETWEEN:
ALAN BATES AND OTHERS.
Claimants
AND
POST OFFICE LIMITED
Defendant
[XTH] WITNESS STATEMENT OF ANDREW PAUL.
PARSONS:
I, Andrew Paul Parsons of Oceana House, 39-49 Commercial Road, Southampton,
$015 1GA WILL SAY as follows:
1. I am a partner at Womble Bond Dickinson (UK) LLP, solicitors for the Defendant
(Post Office) in the above proceedings. I am duly authorised to make this
statement in support of Post Office's application for an order that the Honourable
Mr. Justice Fraser be recused as the Managing Judge of the Post Office Group
Litigation. The facts set out in this statement are within my own knowledge.
2. In this statement I refer to documents which are contained in the trial bundle for
the Horizon Issues Trial in the form {Section / Tab / Page}. Alternatively) Where!
from documents are extracts lengthy, they have been included in the enclosed
Annex to this witness statement and are referred to in form {Annex, XX to XX}.
[Counsel query — would this be a better layout rather than all the extracts in
the body of the statement?)
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CONTENTS
SECTION 1: BACKGROUND...
SECTION 2: SCOPE OF EVIDENCE FOR THE COMMONS ISSUES TRIAL.
19 OCTOBER 2017 - CASE MANAGEMENT CONFERENCE......
2 FEBRUARY 2018 - CASE MANAGEMENT CONFERENCE..... we 12
5 JUNE 2018 CNC...... oe 13
24 JULY 2018...... were 20
11. SEPTEMBER 2018 - CASE MANAGEMENT CONFERENCE
(APPLICATION TO STRIKE OUT PARTS OF THE CLAIMANTS' WITNESS
EVIDENCE ). ae 21
10 OCTOBER 2019 — STRIKE OUT APPLICATION HEARING....... 1 31
JUDGMENT NO 2... “1
COMMON ISSUES TRIAL....... 43
SECTION 3: SCOPE OF DISCLOSURE 5
2 FEBRUARY 2018 —- CASE MANAGEMENT CONFERENCE. 45
22 FEB 18 CMC. 2 49
SECTION 4: COMMON ISSUES TRIAL JUDGMENT.......
3. These proceedings are being managed in stages and since the claim was issued
in April 2016 there have been numerous Case Management Conferences
(CMCs) and applications heard before the Honourable Mr. Justice Fraser. For
the purposes of this application, the relevant CMCs and hearings are those which
were held on [Dates], as well as the Common Issues Trial (as defined below).
4, This statement covers those matters determined at these CMCs and hearings by
reference to either the Claimants' Skeleton, Defendant's Skeleton, or the
transcript.
5. The matters that were determined at these CMCs / hearings and which are
covered by my witness statement fall into two categories:
5 Scope of witness evidence (which is dealt with in Section [2] below); and
5.2 Disclosure (which is dealt with in Section [3] below).
6. Section 4 of my statement concerns the findings which were made at the
Common Issues Trial (as defined below).
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SECTION 1: BACKGROUND
[Should we also include other procedural events in this section - I
pleadings / factual matrix documents / witness statements for CIT?]
10.
11.
On 22 March 2017, a Group Litigation Order (GLO) for the management of these
proceedings was made.’ Pursuant to paragraph 10 of the GLO, the Honourable
Mr. Justice Fraser was nominated as the Managing Judge.
The first CMC was held on 19 October 2017, pursuant to Directions Order No 1.7
By an Order dated 27 October 2017, it was ordered by the Honourable Mr.
Justice Fraser that there “shall be a trial of common issues, to determine issues
relating to the legal relationship between the parties’ A list of the common
issues was annexed at Schedule 1 to this Order. This trial became to be known
as the Common Issues Trial and was heard between 7 November and 6
December 2018. The Common Issues Trial is the first of (at least) three trials
being heard in respect of these proceedings. On 15 March 2019, the Honourable
Mr. Justice Fraser handed down Judgment (No .3) “Common Issues” (the
Judgment).
By way of an Order dated 27 October 2017 a “further trial of substantive issues
between the parties in the Group Litigation to be set down on to be listed for 20
days, commencing Monday 11 March 2019." The issues to be determined at
this trial were ordered on 23 March 2018, being matters which relate to the
operation of the Horizon (Post Office's electronic point of sale IT system).° This
trial is known as the Horizon Issues Trial. The list of issues to be determined at
the Horizon Issues Trial is at Schedule 1 of the Order dated 23 March 2018.°
The Horizon Issues Trial began on 11 February 2019, before the Judgment was
handed down, and is due to conclude on 8 May 2019.
A third trial was listed by way of an Order dated 3 January 2019.’ Pursuant to an
Order dated 20 February 2019, this third trial is due to determine issues relating
to limitation and measure of loss in the circumstances where a Claimants
contract was terminated in breach by Post Office.® This trial is known as the
Further Issues Trial.
1 {C7/3/1}
2{C7/4/1}
3B
{C770}
5 [XX]
® (C7/14/3}
7 {C7/36/1}
® {C7/39/1}
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12. A fourth trial is expected to be held in spring 2020, but has not yet been listed
although the parties are beginning preparations for this trial.°
SECTION 2: SCOPE OF EVIDENCE FOR THE COMMONS ISSUES TRIAL
19 October 2017 - Case Management Conference
13. The scope of the Common Issues Trial was focussed on determining the
contractual relationship between Post Office and the Claimants. The issues to be
resolved were largely questions of contractual interpretation and the evidence
before the Court was to be limited in such a way." The Honourable Mr. Justice
Fraser therefore ordered (by an Order dated 27 October 2017, paragraphs 8 and
10) that the statements of case and witness evidence should be specifically “in
relation to the Common Issues”."'
14. On numerous occasions, prior to the beginning of the Common Issues Trial, Post
Office brought to the Honourable Mr. Justice Fraser's attention the risks of taking
into account evidence which was outside the scope of the Common Issues Trial
and the concerns held by Post Office that the Claimants were looking to serve
evidence which went beyond the scope of that which was permissible at the
Common Issues Trial." These risks were understood by Post Office to have
been appreciated by the Honourable Mr. Justice Fraser."°
15. The first CMC after the GLO had been made was held on 19 October 2017. One
of the purposes of this CMC was to determine what preliminary issues could be
determined at the first trial in these proceedings.
16. Mr de Garr Robinson QC appeared for Post Office and raised with the
Honourable Mr. Justice Fraser on numerous occasions his concerns that matters
which relate to breach and liability were being relied upon by the Claimants to
determine matters of construction and interpretation, as set out in paragraphs
[1514] to (41515) below.
16.1 Mr de Garr Robinson QC stated:
“MR. DE GARR ROBINSON: My Lord, it's agreed in principle but your
Lordship does need to be aware of potential difficulties that could arise in
° See paragraphs 13 to 17 of the Order dated 20 February 2019 {C7/39/5}.
* A list of the Common Issues to be determined is at Schedule 1 to the CMC Order
dated 27 October 2017 {C7/7/13}.
" {C7/7/4-5}
* PX to best example’)
*° [XX to best example]
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Claim No:
this case as it goes further. As a result, amongst other things, of the reply,
it appears that there are a number of factual claims that are being
relied upon by the claimants in support of their case on construction
and some of those factual claims appear to be actual liability claims.
MR. JUSTICE FRASER: Yes.
MR. DE GARR ROBINSON: Whether one calls these issues "preliminary
issues" or "common issues" the same problem arises, which is it is always a
difficulty in cases where the court is deciding how to dice and slice a given
piece of litigation. There's always a difficulty if substantial amounts of
evidence are called at the first determination of matters that are
actually going to be decided as part of a subsequent determination,
for example”
MR. JUSTICE FRASER: Well, that's undoubtedly the case. That's why the
difference between whether they're preliminary issues or whether they are
common issues is important.
MR. DE GARR ROBINSON: Well, in my respectful submission it's important
whether one calls them preliminary issues or common issues----
MR. JUSTICE FRASER: If they are preliminary issues as properly
described It doesn't arise because they will only usually be ordered if they
are on agreed or assumed facts.
MR. DE GARR ROBINSON; Well, in ordinary inter partes litigation that is
true. In group litigation it might be slightly different.
MR. JUSTICE FRASER: Well, that's why in group litigation they are
common issues.
MR. DE GARR ROBINSON: But, my Lord, the reason why I rise to my feet
is simply to make it clear that your Lordship may decide on full
consideration of the pleadings or having seen the parties' attempts to agree
statements of fact which leave over large amounts of issues which actually
are liability issues and there is then an argument as to whether the liability
issues are admissible as an aid to construction. Your Lordship may take the
view that there's a danger that so much liability material is going into
the trial of the construction of the contract it would be tying your
Lordship's hands when your Lordship comes to try liability in a way
that would be most unsatisfactory. In those circumstances your Lordship
may find it appropriate not to order a splitting up of issues in this way.
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MR. JUSTICE FRASER: What, at all?
MR. DE GARR ROBINSON: My Lord, yes. That would be one of the
reasons for not directing--
MR. JUSTICE FRASER: That's rather contrary to what I understood your
position to be.
MR. DE GARR ROBINSON: Yes. We on this side of the court are agreed in
principle that it's worth going for this procedure. However, we are concerned
that unless there is discipline in both parties as to the amount of evidence,
the amount of factual claims that they seek to rely on in the preliminary
issues trial--
MR. JUSTICE FRASER: They are not preliminary issues. They are common
issues.
MR. DE GARR ROBINSON: Your Lordship is quite right. Unless there is discipline on
both the parties as to the evidence that is adduced at the next trial there's a
danger that it may actually tie your Lordship's hands when it comes to trials of
liability and whether this trial is called a preliminary issues trial ---- '*
(emphasis added)
[Can someone please delete the lines below and above]
16.2
Mr de Garr Robinson QC then explained that his concerns arose from the
way in which the Claimants had pleaded their case.
MR. JUSTICE FRASER: Right. Your point is, I think, that because of the
nature of the facts that feed into resolving that group of issues at this
earlier stage there may prove to be some difficulties later.
MR. DE GARR ROBINSON: Yes.
MR. JUSTICE FRASER: Right. Well, tell me what those difficulties could
be.
‘4 Page 7, Section G to Page 9, Section A {C8.2/3/3-4}
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MR. DE GARR ROBINSON: I need to take your Lordship through the
pleadings--
MR. JUSTICE FRASER: All right.
MR. DE GARR ROBINSON: -- and if your Lordship wants me to I will but in
simple terms if you read the pleadings carefully you see that--
MR. JUSTICE FRASER: What do you mean "if'?
MR. DE GARR ROBINSON: I'm so sorry. When one reads the pleadings
one sees that what the claimants appear to rely on in support of their
case on construction of their relevant obligations are all sorts of
things that are actually matters of breach: how the Post Office did this;
how the Post Office did that; the way that the system worked in
practice; and how the Post Office treated various people. Now, if I may
call them this they are breach issues. Whether the Post Office did
actually do x or y is a matter of hot dispute and the danger is that the
claimants are insufficiently disciplined in the evidence they seek to
adduce in order to make out their case on true construction of the
agreement---*
MR. JUSTICE FRASER: They may go outside the scope of the issues which
have been agreed or ordered to be decided. Is that your point'?
MR. DE GARR ROBINSON: Precisely.
MR. JUSTICE FRASER: Right.
MR, DE GARR ROBINSON: And one can only see that after one has seen the pleadings
really, the proper pleadings of the case, and where the facts that are specifically relied on
in construction are clearly identified in that way because the generic pleadings don't do it
in that way. °
16.3
Mr Green QC's (who appeared for the Claimants) position was explained as
being:
“My Lord, I think it's always right when the court makes an order of this type
to be careful about the scope of factual evidence which is considered and
that's true on the preliminary issue when evidence is called because, of
course, your Lordship—...
*S Page 10, Section D to Page 11, Section B {C8.2/3/4}
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...So my learned friend is absolutely right. You have to be careful. I think your Lordship
would be entitled to expect that we would be careful and, in any event, what we have
done, we have proposed two things which directly address hopefully the substance of
what my learned friend is suggesting.”
16.4 In response to the concerns being raised by Mr de Garr Robinson QC, the
Honourable Mr. Justice Fraser responded:
“Well, it may prove to be a real problem but it seems to me whether it is a real problem or
not won't necessarily be known until your evidence is served because Mr. de Garr
Robinson seems to be worrying that the evidence itself will go far wider than that
anticipated by the order or will make resolution of the issues identified in the order more
difficult if not perhaps impossible based on the scope of your evidence but if we haven't
got your evidence it's a bit difficult in the abstract to—‘“”
Mr Green QC's response confirmed that: “Now, my Lord, just because the court hears
evidence from Mrs. Miggins that "x" happens does not mean that the court needs
to determine finally whether "x" did happen but the court is perfectly able to
determine these issues on a footing informed by such findings as the court finds it
necessary to make in relation to any of those disputed facts which we think will be a
secondary category of evidence. So I accept that there's a theoretical risk but I do regard
it at the moment as a secondary if not tertiary issue because of the way we've sought to
structure the approach and because these are largely purely questions of either
contractual interpretation simpliciter or contractual interpretation in a context which at
least is largely common ground.”®
(emphasis added)
16.5 Mr de Garr Robinson went on re-emphasize:
MR. DE GARR ROBINSON: That's probably my fault. Probably, I was
going too fast and I was taking my learned friend and your Lordship out of
turn. What I was trying to convey was the importance of the subsequent
processes and, in particular, the importance of a CMC at which a review
can be taken of the facts that have been alleged in the relevant pleadings
and of the attempts, whether successful or not, of the parties to agree a
schedule of facts which then can be used as a basis for the trial. If it turns
out the parties because of various reasons agree a set of facts but it
becomes clear that they then want to adduce lots more evidence on all
‘® Page 11, Sections C to D {C8.2/3/4}
7 Page 11, Section H to Page 12, Section A {C8.2/3/4}
"8 Page 12, Section E to Section G{C8.2/3/4}
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Claim No:
sorts of what we would characterise as breach type issues, my Lord, that
would be—
MR. JUSTICE FRASER: If they go to breach and breach isn't
mentioned in sch I it wouldn't be relevant evidence anyway. So this is
wrong.
MR, DE GARR ROBINSON: Well, unfortunately, the way that the claim is pleaded in the
particulars of claim and the reply breach type allegations are directly relied upon as aids
to construction. That's the problem and that's why I'm hoping that the pleading process
that my proposed order provides for will iron out that problem, I having raised it at this
hearing and having heard my learned friend say reassuring things.""°
(emphasis added)
17. One of the concerns at the CMC on 19 October 2017 was the lack of clarity which
had been provided by the Claimants in response to a Request for Further
information dated [x]. At page 18 of the transcript?° Mr de Garr Robinson QC
explains that the Claimants case is that the factual matrix to be relied upon by
the Claimants is ““All facts pleaded including those at paras.12 to 39 and 41 to 45
and 81."
18. Mr de Garr Robinson QC_ then went onto make further warnings to the Judge
about:
18.1 the risks of the case; and
"MR DE GARR ROBINSON, My Lord, I would not say may well be. I'm hoping that by
virtue of making the directions that are being sought in my proposed order they make it
much less likely that a car crash will happen when one gets to the trial of these issues.
It's a discipline on both parties to ensure that they pull their horns in and they're not too
ambitious and too extravagant in the kind of evidence (inaudible) factual claims they
seek to rely on as an aid to construction. My learned friend has very helpfully said in his
submissions already that the parties will be sensible and they won't be too extravagant,
as I understand it. If that's the case then there would be no risk of the court finding that
really it's not possible after all but I'm simply saying that unless the court recognises
there's a possibility that that might happen - in my respectful submission it would
hopefully be a very unlikely possibility - then there is a danger that too much evidence will
be led, which will require a much longer trial and will require you as the judge to decide all
*® Page 14, Section F to Section G {C8.2/3/5}
20 Page 12, Section B to Section H {C8.2/3/6}
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Claim No:
sorts of breach issues which would be very awkward in circumstances where questions
of breach aren't before you.""!
"MR. DE GARR ROBINSON: The difficulty is the concern that there is indiscipline and,
again, I'm not pointing fingers on either side, about evidence which one side or the other
then wants to reply to or perhaps issues about the sheer quantity of evidence, perhaps
the amount of breach evidence that's going in and objection, should It be struck out,
should the court make a direction that the court will only take account of certain passages
and soon. My Lord, those kind of issues could require more time and there isn't much
slippage between the middle of September and the beginning of November."
18.2 taking into account breach evidence
"MR. DE GARR ROBINSON: The difficulty is the concern that there is
indiscipline and, again, I'm not pointing fingers on either side, about
evidence which one side or the other then wants to reply to or perhaps
issues about the sheer quantity of evidence, perhaps the amount of breach
evidence that's going in and objection, should It be struck out, should the
court make a direction that the court will only take account of certain
passages and soon. My Lord, those kind of issues could require more time
and there isn't much slippage between the middle of September and the
beginning of November.
MR. JUSTICE FRASER: You're right. It's true. There is no provision in the
timetable as currently suggested for interlocutory litigation warfare. There is
no provision in it for that.
MR. DE GARR ROBINSON: What concerns me most - and I say "me" - is
the possibility that one side or the other says, having seen witness
statements, "I want to put in some evidence in reply."
MR. JUSTICE FRASER: Yes. There's still between September and
November though.
MR. DE GARR ROBINSON: That's true.
MR. JUSTICE FRASER: There will be a pre-trial review. There will be
another hearing between September and November as well.
MR. DE GARB ROBINSON: Well, my Lord, I can hear where your
Lordship's coming from.
1 see page 21, Section C to F {C8.2/3/7}
2 see page 77, Section H {C8.2/3/21)
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MR. JUSTICE FRASER: No. To be perfectly honest I was half expecting
to... I mean there's not an enormous amount of difference between
November and January. I mean for personally involved litigants it seems
like a long period of time but there's probably not that much. There's only
about four or five court weeks, really. I suppose November has the
advantage that counsel won't have it hanging around over the Christmas,
whereas January they would but vice versa for the judge.
MR. DE GARR ROBINSON: My Lord, I think it probably goes without
saying that the clients on both sides of the court and the legal teams on
both sides of the court would rather have a trial in November and that's the
truth,
MR. JUSTICE FRASER: Well, I'm going to assume the guise of an early
Father Christmas and give you your trial in November then. That can
always be adjusted, whether it's by movement of two weeks or anything
like that.
MR. DE GARR ROBINSON: Well, my Lord, could I ask this? My learned
friend used the word "exhortation" before. Could I perhaps put down this
marker? If your Lordship would exhort the parties to be disciplined in their
approach to evidence--
MR. JUSTICE FRASER: You're going to get the second telling-off/lecture at
the end of the day, the counterpart to the one I gave you at the beginning,
but it is a counterpart and if there has to be some sensible adjustment to
the trial date as a result of what happens in the summer that can be
addressed In September.
MR. DE GARR ROBINSON: I'm obliged. The nightmare scenario, for
example, would be a scenario where a claimant starts relying on
conversations, on things that were done in the year 2000 and Post Office
has to scurry off and find someone who once worked who stopped working
there ten years ago.
MR. JUSTICE FRASER: Yes.
MR. DE GARR ROBINSON: That kind of thing could completely sabotage
the entire process and that's the sort of concern that Post Office has.
MR. JUSTICE FRASER: All right. Did I say the week commencing 5th or
6th November just before the short adjournment? I'm going to set it down
for twenty days from Monday, 5th November 2018.
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MR. DE GARR ROBINSON: My Lord, those are my submissions.
MR. JUSTICE FRASER: Thank you very much. Monday, 25° November
2018. Just so that, Mr. de Garr Robinson, you feel that I have taken it on
board because I have, everything that you've said, at that CMC which is
going to happen in September two things are going to happen. One is you
will be given a half-day pre-trial review at some stage in October and you
are now, please, boils obliged to remind me at that CMC that that's one of
the things I told you was going to happen in the unlikely event I forget. That
will only be necessary if there's still things to be done. The second is if due
to the way the case is conducted or there are developments there has to be
some adjustment to this I will take account of that and I am not implacably
opposed to modest adjustments that have to be made but I think the
important thing today is a milestone is put in the future of when the hearing
is going to be and I think it's also difficult to justify to members of the public
or claimants who sit here in October 2017 being told that it's simply not
possible to get something ready until 2019."
2 February 2018 —- Case Management Conference
19. At the CMC on 2 February 2018, the Honourable Mr. Justice Fraser ordered that
by 4 May 2018, the parties were required to file at Court either a single set of
facts that the parties agree may form the basis upon which such issues of
contractual interpretation will fall to be determined; or a single document setting
out the extent of agreement, if any, and the facts to be relied upon by each party
for that purpose.”
20. This was explained in the transcript as being "/ am however going to make
another order. I am going to make another order now concerning the factual
matrix within which each party submits the contractual relations between the
parties falls to be construed as a matter of law. I am going to hear you about
dates for that. The idea is that they can be as clearly as possible, this is not to
replace the pleadings, it is going to be a useful working list, Mr. Green, and this is
what my intention is. I will give you the wording and then I am going to ask you
about dates. I would like eventually for there to be either an agreed document or
a document with each party's position set out, which is going to be the factual
matrix within which each party submits the contractual relations between them fall
to be construed as a matter of law."*4
23 C7/11/5
24 Page 27, Section C {C8.3/3/27}
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21.
Claim No:
At this CMC, Mr Cavender QC sought a steer from the Honourable Mr. Justice
Fraser on the scope of matrix:
"MR. CAVENDER: Just to rattle through the custodians point and to wash out any
difficulty arising from your Lordship's ruling today being implemented. On that, we
do need a steer from your Lordship as to the scope of matrix, because my
learned friend after today and after my invitation saying if he wants to add
categories to my schedule, fill your boots. If after today he comes back with
another 20 bullet points, effectively rehashing the content of his schedule 2, then
we will be in difficulty because we will not be agreeing that. Because there is still
a fundamental dispute as to the proper scope of the factual matrix. If your
Lordship could give some kind of indication to help us because we are going to
have to try and agree that, unless my learned friend is accepting my schedule 2
or your Lordship ordering that.
MR. JUSTICE FRASER: I do not see how facts that are not known -- well ----"°
22.
This document was filed on [x], however the extent of the agreement between
the parties was limited. (Explain! limitations /on/ithis ‘document? Dave thinking)
5 June 2018 CMC
23.
At the CMC on 5 June 2018, which concerned [x], Mr Cavender QC once again
raised the issue with the pleadings for the Common Issues Trial containing
matters of breach.
"MR. CAVENDER: Exactly. The issue is what they did to enter into a contract
with the Post Office really, what the factual matrix to that was, what they
understood, those kinds of things which are normally reasonably straightforward.
Certainly the kind of witness statements one expects would be relatively short
focused on what they were told, what they sign, those kinds of things.
Given the amount of expense that has been expended and also given the
pleadings we have seen recently, the individual particulars of claim, they go into
all manner of breach, performance.
MR. JUSTICE FRASER: The pleadings do?
5 Page 30, Section C {C8.3/3/30}
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MR. CAVENDER: They do, about how Mr. X or Ms. Y, you know the training was
not very good, or this was not very good, or they were told that, these kind of
things, during the currency of their quite long relationships. What I fear is witness
statements that match that. We have all this evidence about breach in a trial that
is deemed construction and implied terms. The only time it broadens out at all on
my learned friend's case on Autoclenz is his point about the period of notice for
termination where he says that did not represent the true agreement and there is
an issue about that. That is the only exception to what is a normal commercial
contract and the factual matrix that can be adduced which is relatively limited. I
have two concerns really, one is the idea of adducing witness evidence which
would then have to be tested, at least in some ways because I guess a lot of it
might be thought to be prejudicial or telling the story. That is the first thing.
The second thing is the timing to do this. If those six individuals serve witness
statements that talk to the pleadings in full by what happened to them, their
expectations, training, all the rest of it, help line, then if that is going to be tested
and there is a fact-finding trial in relation to that, we have not got the time to have
six of those trials in the four weeks, plus the quite complex legal debate over very
many terms of that contract. The whole trial would become subsumed in a
morass of fact. Unless your Lordship says, well, they may have served all this
evidence but I am not going to test it in this trial.
MR. JUSTICE FRASER: I am not testing it at all.
MR. CAVENDER: My Lord, no. What I am saying at this stage is, well, let us not
waste the costs and time in serving it now. This is the wrong time to be serving
evidence about breach.
MR. JUSTICE FRASER: You, or rather the Post Office has now made the same
point four times.
MR. CAVENDER: Exactly. "°
24.
There was subsequently a discussion between Mr Green QC and Fraser J about
the scope of admissible evidence at the Common Issues Trial.
"MR. JUSTICE FRASER: Right. Post Office has made the point now four
different times over a period of many months that they have picked up enough
smoke signals to be able to anticipate that you are likely to serve far wider
ranging evidence of fact for the Common Issues Trial and is necessary to
determine and decide the Common Issues.
8 C8.5/3/53-54
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Claim No:
MR. GREEN: Yes.
MR. JUSTICE FRASER: I have revisited my notes from earlier occasions, it
actually arose the very first time when the debate was "how long should the
Common Issues Trial be set down for".
MR. GREEN: Yes.
MR. JUSTICE FRASER: Mr. De Garr Robinson said it did not need to be as long
as four weeks. I went for four weeks, I think he might have been originally
seeking slightly longer than that but whatever the background your answer on
each occasion has been, it is to put things in their factual context.
MR. GREEN: It is a bit more ----
MR. JUSTICE FRASER: No, let me deal with it on that basis. Whatever the
factual evidence upon which you seek to rely it has to be relevant to the Common
Issues.
MR. GREEN: Correct.
MR. JUSTICE FRASER: If it is not relevant to the Common Issues it is not
admissible.
MR. GREEN: Absolutely right, there is no dispute, to uncertainty about that.
MR. JUSTICE FRASER: In those circumstances it is difficult based on reading
the authorities to see for example, to use Mr. Cavender's example, how evidence
of breach could remotely be relevant to the Common Issues Trial.
MR. GREEN: We have at some length sought to explain that in correspondence.
MR. JUSTICE FRASER: Would you like to explain it to me?
MR. GREEN: Certainly.
MR. JUSTICE FRASER: Perhaps not at some length but just relatively succinctly.
MR. GREEN: The characterization of matters being matters that go to breach is
the defendant's characterisation of those matters."
MR. JUSTICE FRASER: I do not understand that submission for a moment I am
afraid simply as a matter of English.
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MR. GREEN: Someone says, "I was provided with this training which I found
inadequate and it did not help me do X", let us assume that is going to be the
evidence. Now, my learned friend says that is evidence that goes to breach, but
that is wrong analytically.
MR. JUSTICE FRASER: Show me which Common Issues it would go to.
MR. GREEN: May I take it in stages?
MR. JUSTICE FRASER: Yes.
MR. GREEN: The first point is that on Common Issues number 1, relational
contract the court has to decide that by looking at the nature of the contract.
MR. JUSTICE FRASER: Correct.
MR. GREEN: As in fact it worked in practice to see whether or not it was a
contract which requires the parties ----
MR. JUSTICE FRASER: I do not think one looks at the nature of the contract as
it worked in practice. One looks at the nature of the relationship between the
parties to the contract to see if the necessary ingredients, or if there are any new
ones which have not yet been subject to authority. Whatever the necessary
ingredients are for a relational contract are, print or not.
MR. GREEN: Correct. Then we reformulate it to say, was the contract one which
in practice required the fair dealing and good faith requirement et cetera in the ----
MR. JUSTICE FRASER: That does not require breach.
MR. GREEN: No, but, my Lord, my learned friend has captured the language, we
Say, quite wrongly. There are two points, contractual orthodoxy from which we do
not depart at all. The first point is that when you are looking at the construction of
a contract you look only at the evidence as it was when the parties contracted.
We are not going to invite your Lordship to look at any evidence after the parties
contracted to construe the agreement that they entered into on that date.
MR. JUSTICE FRASER: Good, because that would be inadmissible.
MR. GREEN: Of course. I am trying to clear the ground where the dispute is.
MR. JUSTICE FRASER: By definition the breach must happen after the contract ----
MR. GREEN: Of course, we are not talking about ----
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MR. JUSTICE FRASER: My question to you was predicated specifically by
reference to breach.
MR. GREEN: Breach assumes one has identified what the legal obligation is first
which we have not even done, that is what the Common Issues Trial is about. My
learned friend's characterisation is speculative.
MR. JUSTICE FRASER: I will tell what you I am going to do about this because I
am have grave difficulty in following it, but it is also undoubtedly the case that
there are bear traps left, right and centre in my attempting to identify in advance ----
MR. GREEN: Precisely.
MR. JUSTICE FRASER: ---- when you can and cannot do in your evidence. So
this is what I am going to do. I am going to express myself very clearly. If you
serve evidence of fact which includes passages which are plainly not relevant
and, hence, not admissible, Mr. Cavender is going to have a choice. He can
either simply say, "I am not going to be cross-examining at all" or he is going to
issue an application to have it struck out. If he does issue an application to have it
struck out and that application is effective, it will involve the court going through it
and simply striking out large amounts.
The court will make time to do that but cringing costs consequences will follow.
Although I imagine there are only likely to be six witness statements, are there;
one from each, or there might be more?
MR. GREEN: Yes.
MR. JUSTICE FRASER: There will be six or thereabouts.
MR. GREEN: Yes.
MR. JUSTICE FRASER: It is an exercise which will be very tedious and
expensive and it will take a day or two but it can be done.
MR. GREEN: Yes. My Lord, we expect all of that. That is what we expect but we
also note that my learned friend having initially opposed this point conceded it
before you in the transcript, we can find a reference if you want, that each time
Post Office exercises its entitlement to vary the contractual relationship or the
contractual obligations of Subpostmasters, that falls to be construed as the
position is known to the parties at that time.
MR. JUSTICE FRASER: Of course, that is contractual orthodoxy.
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MR. GREEN: Precisely, that is all ----
MR. JUSTICE FRASER: But it does not open the door and it might be that this is
all a concern without any real substance. It does not open the door to wide-
ranging evidence of fact which appears to be Post Office's concern, that cannot
possibly form part of the factual matrix.
MR. GREEN: Precisely. We have taken that on board, I hope.
MR. JUSTICE FRASER: I know, you always do say you take it on board and you
all say that you are following contractual orthodoxy. It might be that you are.
MR. GREEN: I am grateful.
MR. JUSTICE FRASER: At the moment, without the documents in front of you to
be able to look at it with any sort of concrete analysis, it is difficult for me to do
any more. To continue the quasi military analogies from earlier this afternoon, a
very powerful shot has now been fired across your bows on two occasions and I
do not mean by Mr. Cavender or Mr. De Garr Robinson; I mean by me.
MR. GREEN: My Lord, yes.
MR. JUSTICE FRASER: If it comes to a contested application of that nature,
well, that is what will happen. Please do not try and explain it to me by reference
to finding out what their case is because that does not make any sense at all.
MR. GREEN: My Lord, I was not actually trying to do that task. I was simply
trying to address a point which I thought was actually logically anterior to getting
on to what people are saying about the Common Issues which is that I am still in
a position today ----
MR. JUSTICE FRASER: That is fascinating but so far as I am concerned, absent
an application to do anything about it, it does not affect the scope of your
evidence of fact at all.
MR. GREEN: AllI can say is, a large number of implied terms were conceded ----
MR. JUSTICE FRASER: Then your evidence of fact would be narrower.
MR. GREEN: So it does affect.
MR. JUSTICE FRASER: No, it does not, because at the moment the pleading is
fairly clear. You are just, I think what you are doing forensically is saying, actually
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Claim No:
when you look at these twenty they are only numbered up to 19 but there is a
1(a), So there are twenty.
MR. GREEN: Yes.
MR. JUSTICE FRASER: One expects a number of them should not really be
controversial.
MR. GREEN: Or may be subsumed in other things.
MR. JUSTICE FRASER: Maybe, but you unless and until that happens I do not
think you could be criticised for addressing a specific area which is currently in
issue.
MR. GREEN: I understand, I am grateful.
MR. JUSTICE FRASER: It is not relevant to the Common Issues, it is not
admissible.
MR. GREEN: The only area which I have not raised is the extent to which, so the
two points of contractual orthodoxy, the first one I have identified as you look
precisely at the time that the contract was made. The second is to try and
construe the contract in a way that makes commercial business sense which is
also an orthodox principle of contractual interpretation. That is the second. The
question is when we got 561 people across 20 years, how is the court going to
reach an informed view, and I am not talking about putting in lots of florid
evidence about complaints and what happened to me and so forth, but as, how is
the court going to reach an informed view about what makes commercial
business sense without having an understanding of a relevant part of the period
as to how it worked when all these people are entering into these contracts
across that period.
MR. JUSTICE FRASER: Can I just suggest that in addition to all the usual cases
such as Credit Suisse v Titan Europe, Investors Compensation Scheme,
Chartbrook, Rainy Sky Sigma Finance, Arnold v Britton, Wood v Capita, the
parties also remind themselves of the dicta of Leggatt J as he then was in
paragraphs 9 and 10 in the Tartsinis v Navona Management Company [2015]
EWHC 57 (Comm) which makes it clear that what is said during the negotiation of
the contracts, not admissible for the purposes of interpretation and evidence of
the subsequent conduct of parties is also inadmissible. If those very well-known
principles are borne in mind there will not be a problem. If they are not, I imagine
delightful though it is, we have a contested application in store.
AC_154878848_1 19
Claim No:
MR. GREEN: My Lord, the only question that I am trying to establish, because I
am perfectly happy to go along with any clear view expressed by the court. Of
course I am obliged to do so, but let us assume that an event takes place on
Monday with claimant number 1 and on Wednesday Post Office enters into the
contract with claimant number 3.
MR. JUSTICE FRASER: It cannot be evidence that is known by both parties, can
it?
MR. GREEN: That is the issue.
MR. JUSTICE FRASER: It might be and, Mr. Green, I am sure you are not
expecting me to, but just for the sake of argument I will make it clear for sake of
clarity, I am not going to direct in advance the approach you should take on your
witness statement other than to say it has to be relevant to the Common Issues.
MR. GREEN: I am grateful, my Lord.
MR. JUSTICE FRASER: If it is not relevant it is not admissible and I do not think this is
going to be an isolated passage here or there. I imagine Mr. Cavender is going to get
your two lever arch files, or however many they are, blow a gasket, his blood pressure
will go through the roof but he and his solicitors are likely to issue an application. If he
issues one it will have to be fought out line by line. I do not propose to say any more
about the subject, unless I have missed something.”
24 July 2018
25.
26.
On 24 July 2018, in a letter to the Honourable Mr. Justice Fraser confirming that
the CMC listed for Wednesday, 25 July 2018 could be vacated, the parties
requested that Costs and Case Management Conference currently listed for one
day on 19 September 2018 be extended to two days. 7°
This extension was sought on the basis that: "Post Office proposes this increase
in order to allow time for its anticipated application to strike out parts of the
Claimants' evidence for the Common Issues Trial on grounds of inadmissibility
and / or to give other directions related to this topic. This issue has been
canvassed on several occasions before the Court. In Post Office's submission, it
would be sensible to make provision for a longer hearing now given the limited
time available between witness statements being exchanged (in August) and the
trial (in November). Whilst the listing can be revisited later should the application
prove unnecessary, this is a matter for the Court. The Claimants do not accept
* C8.5/3/57 - 62
* XX to letter
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27.
28.
Claim No:
that extra time will be required for any strike out application in relation to their
evidence, but they consider that further time may be required in September in any
event. They consent to the increase to two days, should the Court be able to
accommodate this and be minded to list the hearing on this basis. "
This request was not granted by the Court.
On [x] POL made an application to strike out parts of the Claimants’ evidence.
11 September 2018 - Case Management Conference (application to strike out parts
of the Claimants' witness evidence )
29.
30.
At a hearing on 11 September 2018 the Honourable Mr. Justice Fraser
summarised Post Office's strike out application, as follows: "Because for a long
time the Post Office have been saying whatever they have been saying about it,
and I have made certain observations on more than one occasion, and on the 5th
they put their money where their mouth is, having seen your evidence, and have
decided "We will strike the parts of it out"."*°
Mr Draper then took the Honourable Mr. Justice Fraser through the history of this
matter and how the parties had now reached the current position.
"MR DRAPER: Yes. Your Lordship was maybe a bit more optimistic than we
were at that stage about the claimant's evidence. As I say, we have been certain,
or practically certain, for a long time that we were going to be here because of the
indications given in their pleadings and in correspondence as to the tack they
intended to take in relation to admissibility.
So if I can move then to deal with the suggestion that something has changed
and this is all new. We do not accept that at all. None of that, we say, has any
force whatsoever. If I could just take your Lordship through the chronology of how
we got here, I will do it quickly and hopefully without reference to documents. You
will recall the CMC in June where you correctly observed, my Lord, that this issue
had been raised several times before, both in correspondence and before you,
and gave what was, in my submission, the stark warning that this would have to
C8.8/1/4
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Claim No:
come back before the court if the evidence indeed spread across all the kind of
matters that we were concerned it might.
MR JUSTICE FRASER: I think what I said was that Mr Cavender would have a
choice. He could either just say he was not going to cross-examination on it, or
he could issue an application.
MR DRAPER: Yes. That is a point we will obviously deal with in the substantive
application itself, as to why it would not be an appropriate course just to say to the Post
Office, "Well, you steer your ship however you see fit". We say that would not be
appropriate, but that is really trespassing on the substance of the application."°°
31. Post Office's approach to the application to strike out parts of the Claimants’
witness statements was summarised during the course of this CMC:
"MR JUSTICE FRASER: The first couple of sentences of paragraph 53: "There
were ten other new sub post masters on the training course we were working on
dummy Horizon terminals.". Paragraph 54: "The training was quite general.
Topics were covered like road tax", etc, etc. The first line of paragraph 56:
expected any shortfalls which might arise to be relatively modest. I thought they
would be able to trace the problem. You are seeking to strike out those
passages, those two observations. I am not making any findings at all or
anything of that nature.
MR DRAPER: Yes.
MR JUSTICE FRASER: You are seeking to strike out those passages. Firstly,
you are seeking to strike them out. You say they are inadmissible. Then, when
one looks at the reasons why you might be striking them out, it is not clear to Mr
Warwick or those who instruct him why you are trying to strike them out. Just
having read them out now and looking at it in a real-world sensible way, I accept
that goes to training (and you have a point ----
MR DRAPER: Post contractual.
MR JUSTICE FRASER: Training or post-contractual, which may or may not be a
good point. One is likely to spend far longer arguing about whether that is
admissible than actually it takes to read and/or potentially ignore them if you are
right. Usually, in the larger commercial-type cases ----
C8.8/1/12
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Claim No:
MR DRAPER: Yes.
MR JUSTICE FRASER: - that approach is adopted, which is "Well actually, rather
than have satellite litigation, we will make submissions at the trial". Mr Warwick
does not know whether you are trying to strike them out to avoid adverse
publicity; whether you were trying to strike them out because they are post-
contractual or (inaudible); or whether you are trying to strike them out for one of
your other two reasons. Your application will obviously be heard, but he needs to
know, does he not, which of your categories applies to which of the different
paragraphs, because, if one counted through the 196 pages here, some
paragraphs are likely to fall into some categories; some are likely to fall into
others. He might take a pragmatic view on some of them and say, "Well all right,
we shouldn't have included it".
MR DRAPER: Yes.
MR JUSTICE FRASER: Look at page 116, for example.
MR DRAPER: Yes.
MR JUSTICE FRASER: Paragraphs 88 - 90.
MR DRAPER: Yes.
MR JUSTICE FRASER: Some of those are so general and innocuous as failing to
warrant consideration at all. The fact the Post Office had delivered labels and
other forms in advance to set up a counter. Well, fascinating. Paragraph 90 falls
into a slightly different category because this witness says there was a shortfall
even when the Post Office first was entering into it, so that falls into a different
category.
MR DRAPER: Yes.
MR JUSTICE FRASER: And then paragraph 91 relates to fixing problems and
providing training.
MR DRAPER: Yes.
MR JUSTICE FRASER: Now different considerations might apply to each of
those three different paragraphs. I would have thought, without advance
notification of what they are, it is likely to be a four-day hearing, is it not?
MR DRAPER: To an extent, my Lord. We say this is vastly over-blown. My
learned friend knows why we object to this evidence, and it is really simple. It is
AC_154878848_1 23
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Claim No:
inadmissible for the purposes of any of the common issues. It is post-contractual.
It relates to matters to do with breach, liability failings on the Post Office's part.
That applies to all of it. It is also in breach of your Lordship's order there that
evidence be in relation to the common issues. The other points Mr Parsons
makes are essentially practical ones as to why your Lordship ought to grant our
application, further to the fact that this evidence is inadmissible. It is inadmissible
and for strong practical reasons it ought to be struck out now.
MR JUSTICE FRASER: The practical reason really that appears on the face of
Mr Parsons' ninth statement
MR DRAPER: Yes.
MR JUSTICE FRASER: - seems to be the wish, or Mr Warwick will say, the wish
to avoid what people describe as adverse publicity, is it not?
MR DRAPER: No, not at all, my Lord. The reasons why ----
MR JUSTICE FRASER: Why is it practical for me to strike out the paragraph that
says that the Post Office delivered labels and other stock?
MR DRAPER: If that passage were on its own, we would never be here. We
would not be here if it were not for the fact that almost practically half of their
evidence is inadmissible. Much of it is evidence that we cannot possibly test. If
we were required to test it, we would be needing ... We have given disclosure.
They have given disclosure. We would be needing all sorts of evidence on our
side that they would be uncomfortable with because it would go into the honesty
of their accounts and their conduct. All of these matters are simply outwith scope.
Your Lordship is quite right to say that, in the usual case of contractual
construction and similar issues, there are inadmissible pieces of evidence on the
margins - the odd line here or there in paragraphs of a witness statement - but
everyone just reads over them or deals with them in submissions. But the
principal difference here is just one of scale. Almost the bulk of some of these
witness statements (Ms Stubbs springs to mind) is inadmissible. It goes into, if it
were to be taken, if it were even to be read by the court, it is obviously there in an
attempt to prejudice your Lordship, consciously or subconsciously.
MR JUSTICE FRASER: Well I am sorry. I simply do not accept that that can be a
valid ground to either reduce the evidence or for you to try and strike it out.
Subconscious prejudice of a judge dealing with a class action in group litigation is
really not a valid ground to strike it out.
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Claim No:
MR DRAPER: No, we ----
MR JUSTICE FRASER: What has to be borne in mind is -- and I am going to
make these observations and I am going to give some directions about how we
are going to deal with your application.
MR DRAPER: Yes.
MR JUSTICE FRASER: What has to be borne in mind is that these are six lead
claimants. Witness statements are supposed to be in their own words.
MR DRAPER: Yes.
MR JUSTICE FRASER: And they will undoubtedly, although guided by the
solicitors, in order to provide a coherent story as a lead claimant for what is the
first trial of highly emotive issues ----
MR DRAPER: Yes.
MR JUSTICE FRASER: They will undoubtedly want, or have included reference
to some matters which in legal terms are not strictly admissible to the
construction of the contract. I do not really consider it sensible to suggest that
resolution of those contractual issues is going to be subconsciously prejudiced
against the Post Office unless the passage is struck out, because I will probably
end up reading the passage with more care because it is the subject of a strike
out application than if it just stood on a witness statement.
MR DRAPER: As I say, our principal point is simply about the scale of this. The
court cannot sensibly adopt the usual approach of just reading over it or saying,
"We'll deal with it when it arises", because, for some of them, the bulk of their
case is effectively things like: "A shortfall occurred in my branch. I have no idea
why. It must have been Horizon, and I had some problems with Horizon. I've got
disclosure from Post Office and I think there are problems with Horizon" - really
issues for next March.
MR JUSTICE FRASER: I understand that, but evidence of that nature is not
going to impact upon an analysis in my first judgment of what the scope and the
extent of the contractual obligations is, is it, really? I mean, you have just
summed up, very pithily, almost their entire case on Horizon in terms of burden of
proof and in relation to contract, etc. Your application is going to have to be dealt
with.
MR DRAPER: Yes.
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Claim No:
MR JUSTICE FRASER: And what I am going to do is I am going to give you
some directions.
MR DRAPER: If I could just make a submission on timing before you do.
MR JUSTICE FRASER: Yes.
MR DRAPER: The Post Office's position, as I have said at the outset, is that we
accept that it cannot all be heard on the 19 th if you extend it.
MR JUSTICE FRASER: Yes.
MR DRAPER: What we would say is, if that is the concern - time - we would be
comfortable with our security for costs application being pushed to a later date
because it does not impact on the trial in the same way; whereas there is a big
difference, in my respectful submission, between a determination at the CMC in
ten days’ time and a determination in 20-odd days' time in the lead up to trial.
MR JUSTICE FRASER: Why?
MR DRAPER: Because, say, for example, your Lordship were to take a different
view from us around the edges. Take training, for example. You went to post-
contractual training, but only shortly post-contractual. Say, for some reason -- in
our submission it would be wrong, but say, for some reason, you were to say that
is within scope; that that is permissible ----
MR JUSTICE FRASER: Why within the scope, do you mean?
MR DRAPER: It is evidence in relation to the common issues.
MR JUSTICE FRASER: Admissible in relation to the common issues.
MR DRAPER: Yes; one can describe it either by reference to the language of
your Lordship's order that the evidence has to be in relation to the common
issues ----
MR JUSTICE FRASER: The evidence does have to relate to the common issues.
MR DRAPER: Which we say vast swathes of it do not. Questions like: Did the
Post Office conduct an audit properly three years after I was appointed? Did the
Post Office treat me badly during my termination? These things have got nothing
at all to do with the common issues. We say that that is the problem. I am
repeating myself to an extent. It is the scale. It really is egregious. Normally, you
would not even be anywhere near this in a case of this kind. A claimant would
AC_154878848_1 26
32.
Claim No:
never deal with matters four/five years after the conclusion of a written contract
and say that somehow ought to influence the construction of the provisions, or to
justify an implied term. Returning to timing, we say if the problem is simply fitting
things in, then security for costs is not a problem. It is money. We would much
rather have it sooner than later. But, in terms of our trial preparations, if we get
this determined relatively soon, it may be that there are things that can be done
urgently to reduce any prejudice the Post Office considers it might suffer.
MR JUSTICE FRASER: You cannot strike out ... It is not a valid ground to strike
out evidence that it prejudices you. A valid ground to strike out evidence is that it
is inadmissible.
MR DRAPER: Yes, forgive me. I am distinguishing here between, if you like, my
Lord, the legal grounds for strike out which are inadminissibility ----
MR JUSTICE FRASER: The grounds I am going to be applying.
MR DRAPER: Yes. And they are inadmissibility in every case - the same
proposition for every single paragraph that you see indicated in yellow. It is all
inadmissible. That is our simple submission.
MR JUSTICE FRASER: Obviously, because, if it were not, you could not be
applying to strike it out.
MR DRAPER: Quite, quite.
MR JUSTICE FRASER: You have to explain why it is inadmissible. Mr Parsons
comes up with four reasons.
MR DRAPER: No; he deals with why it should be struck out. So it is inadmissible,
but, in the ordinary case - the kind of case we have been discussing; the typical
contract case where there is some inadmissible stuff - the court will just say "Well
it doesn't matter. Let's leave it in there for now and deal with it, if we must, at
trial." The reasons Mr Parsons gives about practical prejudice, the fact we simply
cannot deal with this material; that we could not cross-examine on it if we wanted
to other than just to make serious but very general allegations about the
claimants’ conduct, those points are as to why your Lordship needs to grasp the
nettle; why this is not the usual case and it cannot just be left over to some future
date and dealt with on a sort of ad hoc basis."
Mr Draper continued:
AC_154878848_1 27
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Claim No:
"MR DRAPER: Yes, but you will have heard what we say about the possibility of
dealing with this additional material on which they intend to rely ----
MR JUSTICE FRASER: If you cross-examine on it, obviously -- it is an obvious
point -- there will be more time taken at the trial on cross-examination if you want
to cross- examine on it.
MR DRAPER: Yes.
MR JUSTICE FRASER: On the basis of your primary position that it is not their
best point, any cross-examination will be limited.
MR DRAPER: Yes. We could not in fact properly deal with it. We could not test it
in a way that we would say is fair without disclosure, for example.
MR JUSTICE FRASER: Well I am not sure whether that is correct, but, either
way, if it is not struck out and you Say it is inadmissible ----
MR DRAPER: Yes.
MR JUSTICE FRASER: - your cross-examination on it would be more limited
than otherwise.
MR DRAPER: Yes; that is right.
MR JUSTICE FRASER: It is going to be, and it will obviously impact upon, the
length of the trial by some degree. On the face of these two wholly inaccurate
proposals, there is a two-day difference.
MR DRAPER: Yes. Your Lordship will have seen that we would say their
proposal is just entirely unrealistic if any of this were within scope. They can only
be assuming we are not going to challenge it, and I say that for a reason that I
can make here on the basis of the pleadings, which is that their pleaded case is
that the Post Office is now debarred from advancing any case in relation to the
material that we say is inadmissible. So it will come to the surface, my Lord.
MR JUSTICE FRASER: Sorry, I do not understand what you mean.
MR DRAPER: You will recall the way the individual pleadings went is essentially
. The individual particulars of claim canvass the whole of the claimants’
experience.
MR JUSTICE FRASER: The individual claimants. By individual claimants ---
AC_154878848_1 28
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Claim No:
MR DRAPER: So the Bates pleading, for example. Mr Bates' individual particulars
of claim
MR JUSTICE FRASER: Right.
MR DRAPER: - goes from the pre-appointment stage, through all of his problems,
the shortfalls, up to his termination.
MR JUSTICE FRASER: And as you would expect for an individual claim, but I am
dealing with common issues.
MR DRAPER: Quite, and you made an order that these matters - the pleadings,
evidence, disclosure - all be limited to the common issues. One way to test
whether they have tried to comply with any of that is to ask what more would Mr
Bates say before the trial of his claim, and the answer is nothing.
MR JUSTICE FRASER: But what has that got to do with this, Mr Draper?
MR DRAPER: What that has got to do with this ----
MR JUSTICE FRASER: You will not be cross-examining on the whole of his
witness statement if we are dealing with common issues, but you say ... I think
what you are saying is (and if I have misunderstood it, please tell me) Mr Bates’
actual individual particulars of claim deal with the whole of his experience with the
Post Office.
MR DRAPER: Yes.
MR JUSTICE FRASER: We are dealing with common issues. His witness
statement goes more to his individual particulars of claim than it does to the
common issues and it should be restricted to the common issues and so
everything else should be struck out.
MR DRAPER: Yes.
MR JUSTICE FRASER: And that is the basis of it.
MR DRAPER: It is. It is. I was taking you to the pleadings for the point that I use
to make good my submission that this would become a circus. If your Lordship
were to say, "Let's deal with it all in argument", sort of as we go along ----
MR JUSTICE FRASER: Very few trials, if any, before me become a circus.
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MR DRAPER: I am quite sure. It would risk going that way until you pulled it into
order is perhaps the highest the submission ought to be put, but it will create
difficulty that we really could do without.
MR JUSTICE FRASER: I understand that, but, on the face of these two
proposals, you are saying, or your solicitors are saying, that the amount of time
required for cross- examination would be increased if it were not struck out.
MR DRAPER: Yes.
MR JUSTICE FRASER: I have that point.
MR DRAPER: Our evidence, in fact, and I would, by way of submission, make
the same point: we could not do it in the time available. There is already quite a
lot.
MR JUSTICE FRASER: You could not do what?
MR DRAPER: We could not cross-examine in any meaningful way on the
inadmissible material in addition to the admissible material, which is already fairly
substantial. There is quite a large amount of evidence from both sides on the
appointment process in each case. My learned friend referred to the number of
our witnesses. That is because, say, in relation to particularly the claimant's
appointment, he had a meeting with three different people. We have very short
statements from the people whom he met saying what they said or did not say to
him at that pre-contractual meeting. So there is a fairly substantial amount of
evidence before the court on admissible matters. You will have seen that also
from the witness statements. There is a lot of pre- contractual material here. We
have not tried to strike out those bits where they are inadmissible. We have
adopted a broad-brush approach and said, effectively, to use colloquial language,
"If it's not bonkers, we'll leave it in for now and deal with it as we go along". It is
only the really obviously inadmissible material to do effectively with breach that
we are seeking to strike out.
My point on the pleadings, my Lord, if I return to it, is ... So the story with the
pleadings goes: full pleadings, effectively, from the individual lead claimants. The
Post Office responds by saying "We're going to plead back to your case on the
common issues, which will involve pleading back to pre-appointment matters,
including (although it is probably inadmissible) things like subjective expectation
and so on, but we're not going to plead back to everything you say about
shortfalls - problems with Horizon, insufficiently detailed advice from helpline
operators, us being unfair during audits" - all of that. "We're just not going to deal
AC_154878848_1 30
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with it because it's inadmissible". So that was the pleading that comes back from
the Post Office.
The replies from the claimants include, effectively, applying all the inadmissible
material, making further points they would like to make, and also a plea that the
Post Office ought to be -- I think the phrase would be estopped, but really
debarred from advancing any positive case in relation to any of the admissible
material.
MR JUSTICE FRASER: Any of the inadmissible material.
MR DRAPER: So their case is effectively: because we complied with your
Lordship's order -
MR JUSTICE FRASER: That might have been an optimistic plea, and it may or
may not have any legs, but what does that actually matter so far as what is being
addressed this morning is concerned?
MR DRAPER: Because that is the background to the claimants’ proposals on
things like how long cross-examination will take. They think the Post Office just
has not to accept, but not address by way of a positive case, anything they say in
relation to the inadmissible material. So that it seems they, like we, think the
scope is going to be limited, because otherwise cross-examination and in fact the
evidence itself will just last too long, but they seek to justify that on what we say
is a perverse basis. So it is just a further reason for saying that, unless this nettle
is grasped now and the material is just out, we are going to have real difficulty
trying to deal with it as we go along.
10 October 2019 — Strike Out Application Hearing
33.
Post Office's application for parts of the Claimants' witness evidence to be struck
out was heard on 10 October 2019.
Post Office's skeleton for this hearing explained the issues faced with the
Claimants’ evidence:
"The problem can be stated shortly. Cs have served many pages of evidence that do not
relate to the Common Issues but instead involve allegations that Post Office breached
obligations that Cs claim it owed to them. Much of that evidence strays into issues that
are properly the subject of trials to be heard at later stages in these proceedings,
including issues as to the reliability of and the information available from the Horizon IT
system. In compliance with the Court's orders for pleadings and evidence “in relation to
the Common Issues”, Post Office has not served equivalent evidence and has not given
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or received adequate disclosure on the breach issues. A party serves evidence for a trial
So that it can be answered and tested at the trial and can be the subject of findings in the
judgment. However, Post Office cannot fairly answer or test Cs’ evidence on these
issues at the Common Issues trial, and it notes Cs’ assertion that it is estopped from
challenging it. At the same time, Cs insist that the Court can and should make findings on
those issues in its Common Issues judgment, including findings on issues that will be the
subject of the Horizon Issues trial, generating a risk either of tying the Court’s hands at
that trial or of irreconcilable judgments. "*"
35.
Post Office's skeleton for this hearing also addressed the matter of whether Post
Office would suffer prejudice. °?
"Second, Mr Hartley says that Post Office can simply choose not to cross-
examine on any inadmissible and irrelevant material. He points out that no
findings of breach, causation or loss will be made. The simple answer is that the
evidence, if irrelevant and inadmissible, is not properly before the Court. Further:
(a) Post Office should not be put at any potential disadvantage as a result of Cs’
decision to disregard the proper bounds of evidence for the trial. Yet the current
State of the evidence puts it at substantial disadvantage. Because Post Office it
has sought to comply with the Court's directions, Post Office is not in a position
properly to answer or test the evidence to which it objects and in relation to which
Cs will argue findings of fact should be made. This would be grossly unfair to
Post Office.
(b) Post Office will inevitably object to any and all cross-examination and
argument by Cs that is based on the inadmissible material. It is much more
efficient, and in both sides’ interests, to have the issues of admissibility and
relevance determined in one go, rather than essentially the same arguments
cropping up repeatedly in the course of the trial.
Third, Mr Hartley appears to suggest that Post Office, like Cs, should have
prepared evidence to cover the facts of each Lead Claim from appointment to
termination and so put itself in a position to seek findings as to matters including
the causes of the shortfalls in their branches, the consequences of false
accounting, the content and reliability of audits, the content of training and calls
made to the Helpline over the years. If Post Office is right as to inadmissibly and
relevance, it cannot be criticised for refraining from preparing evidence that could
only be relevant in later trials. The Court ordered a staged process."
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2 C8.10/2/29
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36.
Claim No:
(emphasis added)
At the hearing, Mr de Garr Robinson QC explained the background to this
application.
MR. de GARR ROBINSON: My Lord, could I start by telling your Lordship what
this application is not about?
MR. JUSTICE FRASER: What it is not about?
MR. de GARR ROBINSON: It is not about preventing the claimants from putting
their full case at the appropriate time. It is not about preventing the claimants from
putting their case on the common issues at the common issues trial. Nor is it
about preventing your Lordship from knowing the nature and scope of the wider
claims, the wider issues raised by the claimants in the context of this claim for the
purposes of the common issues trial.
Your Lordship may recall that at the first CMC where I appeared I suggested to
your Lordship that there should be full pleadings so that your Lordship, although
deciding the common issues, would have a sense of the allegations that were
being made and would therefore have some context within which to make your
decisions on the common issues.
Your Lordship was not persuaded that it would be helpful to do that, but I do need to
make it clear that it is no part of the purpose of this application to prevent your Lordship
being aware of what allegations are being made. Nor, and this is perhaps the most
important point, is it about inducing your Lordship to make findings on those wider issues
in the defendant's favour at the common issues trial. Indeed, the whole purpose of this
application is the opposite. It is to ensure that no findings are made on the wider issues at
the common issues trial on either side’s evidence."**
37.
Mr de Garr Robinson QC went on to explain:
"The problem is that a very substantial portion of the witness statements of the
claimants are drafted with a view to proving the truth of the claimants’ complaints
about Horizon and their complaints about their treatment once they were
appointed as Postmasters by Post Office. It is full of attacks on the quality of their
training, attacks on the reliability of Horizon and the information available from
Horizon; attacks on the quality of the help given by the Helpline in relation to
Horizon. There is page after page attacking particular transaction corrections
issued in particular branches. There are attacks on the quality of audits and
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investigations and detailed evidence as to the circumstances in which contracts
were terminated and parties were suspended.
This evidence accounts for over a third of the claimants’ witness statements. It is
around 68 pages, my Lord, of 185 pages. It is not about meeting or responding to
Post Office’s own evidence. It looks like the lead claimants’ evidence on liability. It
is on how Post Office is alleged to have breached the duties that Post Office is
alleged to owe them. It creates a number of fundamental problems.
First of all, Post Office has no evidence in answer to this material. It has not
adduced any evidence addressing any alleged breaches in this case. It could not
have adduced such evidence if it had wanted to, quite apart from, as I shall show
your Lordship, the order your Lordship made restricting the evidence to the
common issues.
It has not searched for or been ordered to disclose the documents that would
bear on the issues that are now being raised in the witness statements. It is
important to note the disclosure that your Lordship ordered in this case in relation
to the common issues, all of those orders — there were three orders — initial
disclosure; stage 1 disclosure; stage 2 disclosure; all of those orders were made
before pleadings were even exchanged in the common issues trial. The
custodians of that who were chosen for the purposes of that disclosure, are
largely contract custodians, if I can call them that. Your Lordship, I am sure, will
understand what I mean; custodians concerned with formation of the contract,
that kind of thing. Fifty-three custodians were chosen, as I understand it, mainly
by the claimants. Those custodians were not selected to capture the people at
Post Office who had involvement in the matters of which complaint is now made
in the witness statements. So those people could not have been selected for the
purposes of seeing what documents they were and seeing what the truth of
particular allegations were.
My Lord, six people are mentioned in the witness statements who were not even named
as custodians. Of course, many more custodians would need to be found in order to get
the documents, to delve deeply into Post Office’s documents in order to shed light on the
claims that are now being made in the claimants’ witness statements. "**
{Consider whether these comments should be mov
38. DGRQC continued:
* C8.10/3/4
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"So for all of those reasons, Post Office has no evidence in answer to this mass
of evidence containing complaints about breaches that Post Office is alleged to
be responsible for. In my respectful submission, the inevitable consequence of
that fact on its own is that your Lordship cannot fairly make findings on that
evidence at the common issues trial.
MR. JUSTICE FRASER: I am only making findings at the trial in respect of the
common issues. Those are the only issues I am trying.
MR. de GARR ROBINSON: My Lord, my submission is that if your Lordship were
to allow this evidence in, which I say does not relate to the common issues, the
inevitable effect would be your Lordship would be faced with a one-sided picture
and would not be able to make a determination of the truth of the matter. Your
Lordship simply will not have heard evidence. It is worth noting, of course, that in
their replies, it is alleged that Post Office is actually estopped or debarred from
even disputing the claims that are now made in their evidence.
The burden of my submission is that there cannot be a proper enquiry into the issues
which are sought to be raised in the claimants’ evidence. There cannot be a fair enquiry,
an enquiry that is fair to Post office. My Lord, that is the first problem."°°
39.
40.
DRQC went on to raise the issue that due to way in which pleadings and
evidence had been ordered by the judge in a restricted way: " My Lord, that is an
important point. I was suggesting that it might be helpful to your Lordship at the
common issues trial to at least know what the wider allegations were so you have
a sense of what the practical impact is alleged to be. At the bottom of page 62
your Lordship will see I immediately made it clear, however, that the court should
not make findings on them; it should just know about them."
DRQC was in particular concerned "to prevent the common issues trial being
hijacked into an exercise in which evidence as to underlying breach is
investigated with the concomitant risk of findings being made on that evidence in
the common issues judgment. It is the investigation of that evidence asking cross-
examination questions, submissions being made, “Well, there is no evidence from
Post Office opposing that. How can your Lordship make any finding other than
this?”
The risk that findings will be made on those issues, that would be, first of all,
grotesquely unfair to Post Office for the reason I have already submitted, but it
S$ C8.10/3/5
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would also be trespassing upon the order your Lordship has already made about
subsequent trials, in particular the trial of the Horizon issue."
MR. JUSTICE FRASER: I understand that submission. Where would you place
that risk in terms of percentage likelihood?
MR. de GARR ROBINSON: My Lord, my first submission is not an answer to
your Lordship’s question but, in my submission, the defendant should not be
faced with that risk at all.
MR. JUSTICE FRASER: I understand that. You say that risk should be zero and
that is why you want to strike it out. But as a submission which underpins what
you say I should do today or shortly after today, which his strike it out: are you
making that submission from the background of there is an appreciable risk that
this court will make findings on issues which are not included in Schedule 1 to the
order of October '17?
MR. de GARR ROBINSON: My Lord, there is an appreciable risk, first of all, that my
learned friend will seek to investigate the evidence at the trial and put it to my clients and
will make submissions on the basis that Mr. Cavender has not challenged any of this
evidence. He cannot; there are no questions he can ask. He does not have any coconuts
to lob at the relevant witnesses. That is, if I may say so, 100% likelihood. Having been
involved in hearings with Mr. Green previously, I feel rather sure that Mr. Green will
attempt to play that game - and I do not mean any discourtesy to him to use the word
“game” ---- 7
41.
42.
DRQC summarised the Claimants case as: " The claimants’ essential case at the
common issues trial will be, the court cannot decide what the contract means and
the other associated questions without making findings as to the quality of
Horizon, the quality of the training, the quality of the Helpline, the comparative
information that is available and so on and so forth. My Lord, that is practically
their entire case."
In relation to the evidence which relates to the Horizon Issues Trial.
"MR. de GARR ROBINSON: So a very large proportion of the challenged
evidence directly addresses Horizon issues. My learned friend is suggesting
that your Lordship has to make findings on those issues in order to decide the
common issues. I say that he is wrong. If he were right, your Lordship would not
have been able to direct the trial of the common issues that your Lordship did.
That was never the intention.
57 €8.10/3/10 - 11
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MR. JUSTICE FRASER: I would not be ordering another trial to deal with issues
which are an essential component of the first trial.
MR. de GARR ROBINSON: No. My Lord, bearing in mind the Horizon issues are,
as your Lordship has already indicated, essentially expert issues ----
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: ---- your Lordship would not be proceeding upon
an inquiry into the reliability of Horizon and the relative availability of
information from Horizon with respect to Postmasters and with respect to
Post Office without expert evidence.
MR. JUSTICE FRASER: That is, of course, correct, but that is not to say that
there will not be some relevant factual evidence of fact in relation to the Horizon
issues.
MR. de GARR ROBINSON: I am not addressing that. I am simply addressing the
fact that my learned friend is going to be testing the evidence. He is going to be
putting questions to Post Office’s witnesses and he is going to be inviting your
Lordship to make findings which bear directly on Horizon issues which, as
your Lordship has already found, ought to be tried by reference, mainly, to
expert evidence.
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: That is not right. That threatens the integrity of the entire trial
process that your Lordship has directed. That is why Post Office has not adduced
evidence on them. It would not be right to. It could not adduce evidence on them, my
Lord."
43,
(emphasis added)
DRQC added:
"We say it is necessary to maintain discipline in the evidence that is adduced. I
remind your Lordship that at the first CMC hearing in response to concerns that I
raised about the potential scope of the evidence, I recall my learned friend
indicating there would be discipline from the claimants’ side. But, my Lord, it is
important to maintain discipline for at least three reasons. One is to maintain the
integrity of the staged nature of this piece of group litigation. Two, because
relevant evidence bearing on those breach issues, evidence to challenge those
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breach issues, is not before the court and could not properly be brought before
the court in time so as to enable a fair trial of the relevant issues. Three is to keep
this common issues trial within manageable proportions, not beset by argument
after argument after argument.
My Lord, it may be too obvious for words, but I do submit that it was always intended that
the wider liability issues and Horizon issues would not be the subject of investigation and
findings at the common issues trial. The scope of the common issues trial was carefully
limited to what was relevant to the common issues trial. "°°
44.
DRQC raised with the judge his concerns that he would make findings which
interlinked with the Horizon Issues Trial:
"MR. de GARR ROBINSON: ...Let me make it absolutely clear to your Lordship:
Post Office at the common issues trial will not be inviting your Lordship to make
any finding as to how reliable Horizon was.
MR. JUSTICE FRASER: I do not intend to ----
MR. de GARR ROBINSON: Well, of course.
MR. JUSTICE FRASER: ---- because it is not included in Schedule 1 to the
October 17 order.
MR. de GARR ROBINSON: I took you to paragraph 76 because my learned
friend seeks to rely on it as some kind of a joker card which allows him to make
what he claims, is what we say, is matrix evidence. The evidence he wants to put
in is all about Horizon. My Lord, paragraph 6 is not about that, it is about
accurately typing in the transactions that you do.
MR. JUSTICE FRASER: I do have that point.
MR. de GARR ROBINSON: It is as simple as that. It would be wrong to try and
expand, use subparagraph (6) as a Trojan Horse to crowbar in the entire case for
the purposes of the common issues trial. I repeat a submission I made a few
minutes ago which is if my learned friend is right about that, then we might as
well abandon the common issues trial and just have one big trial of everything.
MR. JUSTICE FRASER: Well, we are not going to be doing that."“°
45.
Further DRQC points:
© C8.10/3/22
* C8.10/3/31
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"MR. de GARR ROBINSON: My Lord, that is absolutely right. If I can make it
clear, I really am putting what your Lordship said in different words. The
defendant is not suggesting that the claimants should be prevented from making
their case on breach at the right time. They will have their day in court. There will
be a series of trials. They will be able to run their arguments about Horizon at the
Horizon trial and they will be able to run their own experience of Horizon at their
own breach trials.
But, my Lord, it is important to maintain discipline in this very complex structured
litigation. For that purpose it is important that paragraph 10 of your Lordship’s
order is properly respected.
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: There is another point that I would like to make clear
to your Lordship. The defendant will not be inviting your Lordship at the common
issues trial to make findings which bear on the Horizon issues or which bear on
breach.
MR. JUSTICE FRASER: Understood
MR. de GARR ROBINSON: It will be inviting your Lordship to proceed on the
basis that the claimants’ case on the Horizon issues and the claimants’ case on
breach is not being accepted or rejected. That is the basis upon which the
common issues trial will proceed. It is important and the purpose of this
application is to ensure that no findings at all are made about any of these things.
MR. JUSTICE FRASER: Yes..™*
46.
In relation to evidence on post contractual matters and Horizon considerations
DGRQC stated:
" My Lord, there is one extraordinary argument that I would, with your Lordship’s
permission, like briefly to deal. It is based upon the assertion that although you
cannot give evidence as to post-contract matters, what you can do is you can tell
the court what you expected, then tell the court what happened after the contract,
and then finish up with a sentence, “That is not what I expected at all”. It is
suggested that giving the evidence as to what happened and then saying, “Il am
truly astonished, shocked and appalled by that’, that makes it admissible because
it is corroborative of the initial statement as to what was expected. My Lord, that
is a licence for an unprincipled pleader to get around all sorts of rules as to
4" C8.10/3/40
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admissibility. If the witness has an assertion that they expected something to
happen, they are allowed to say it. There are many passages in the witness
statements where they do say that. Some of the paragraphs which my learned
friend took your Lordship to, include statements where witnesses said what they
expected at the beginning and then delete the passages where they then talk
about what happened to them after the contract was entered into. My Lord, one
cannot somehow make that admissible by saying it and then adding at the end,
“That completely surprised me. That was not what I expected.”
Because the issue is what you expected at the beginning and that is something
you can say and the witnesses did say. My Lord, in order to preserve this
common issues trial, in my submission, it is important that both parties recognise
that the court is not in a position to make any sort of finding or proceed on any
kind of assumption as to how reliable Horizon was. Your Lordship will be aware
from the generic pleadings, in paragraph 16 of the generic defence in particular, it
is accepted that Horizon is not a perfect system. No IT system is. No one is
suggesting that Horizon is perfect.
My Lord, the reliability of Horizon is not discussed in any of the witness
statements - your Lordship will see from footnote 22 in Ms. Van Den Bogerd’s
witness statement — because that is a matter for the Horizon trial. It is simply not
addressed by the witnesses because it is a matter for the Horizon trial. Perhaps I
should take your Lordship to that. It is in the Defendant's Witness Statements
Bundle.
MR. JUSTICE FRASER: You are now taking me to a footnote?
MR. de GARR ROBINSON: My Lord, it is footnote 22. It is at page 28 of the
witness statement behind divider 2. “I do not take into account in what I say here
the claimants’ allegation regarding defects in Horizon because I understand that
these are not within the scope of the common issues trial.”
My Lord, the witnesses tried to stay away from those issues. To the extent that my
learned friend has identified passages in their evidence which could be construed as
straying into those issues, that is unintentional. I can assure your Lordship, your Lordship
will not be invited to proceed upon the basis of findings of fact that are inconsistent with
the issues that remain to be resolved at the Horizon issues trial."
Judgment No 2
47. The judgment in relation to Post Office's strike out application was handed down
on 15 October 2018.
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48. In this judgment, the Honourable Mr Justice Fraser stated:
"He also submitted in his written skeleton that the application “appears to be an attempt
by Post Office to secure an advantage at the Common Issues Trial by selectively tailoring
the evidence which the Court is to consider.” I accept that submission too; the application
certainly gives that appearance."*°
49. The Honourable Mr Justice Fraser then went onto find:
"In respect therefore of the five different grounds relied upon by Mr De Garr
Robinson identified at [20] above, the first — that the court had ordered that
evidence be served restricted to the Common Issues — is answered by my finding
that the evidence is relevant to the Common Issues as I have explained."
50. In relation to the scope of disclosure which had been ordered, it was found that:
" The first is that no disclosure was ordered that went to such matters. I reject
that, for two reasons. Firstly, Mr Green identified in the actual disclosure order
itself where such disclosure was ordered. Secondly, for the most part, the Lead
Claimants are in many of these passages actually giving evidence in respect of
documents and so on given in disclosure by the defendant that specifically relates
to them. That disclosure has been given in this Group Litigation by the defendant.
The suggestion that no disclosure is available on these matters is not sound."
51. lin respect of the Court not making findings on matter of breach:
"It is worth expanding on this point made by the defendant, which is relied upon in favour
of allowing this application. It is that as a result of admitting this evidence (by which the
defendant means failing to find it inadmissible and striking it out) the court will either find
itself asked, or will make, findings on matters that are in reality to be dealt with in the
Horizon Issues trial, or in the later trials that are to deal with specific breach, loss and
damage alleged by the individual Lead Claimants. I do not accept that there is such a
risk. The trial that is about to commence on 5 November 2018 is to deal with the
Common Issues. Those Common Issues number 1 to 23. They are attached to Schedule
1 of the Directions Order of 19 November 2017. They are the agenda for that trial. There
is no such risk of the court making findings on the Horizon Issues, or of the court making
findings on breach. Judges are expected to be able to consider relevant matters
pertaining to different issues, keeping them compartmentalised where necessary. What is
relevant for one issue may not be relevant to another. A trial of this nature is not similar to
a trial before a jury, where the risk of prejudice sometimes outweighs what might be
called issues of strict admissibility (or probative value). Even jury trials admit evidence -
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for example admissions by co-defendants — where the jury will be directed that such
evidence is admissible for certain limited purposes, but is not to be taken into account for
others. I consider this point to be an exceptionally weak one. The court will not find itself
making findings almost by accident, which is what the defendant came perilously close to
submitting.“
52. Finally, the judge made a comment at the end of his judgment on the termination
of Claimants. At this stage, the judge had not seen evidence from Post Office
about the circumstances of the Claimants terminations.
"Finally in terms of the tenor of this litigation generally, I make the following observation.
Some passages of the Lead Claimants’ evidence relate to the circumstances in which
their engagement with the defendant was terminated. These terminations, for some Lead
Claimants, occurred before other claimants in the Group Litigation (who are not Lead
Claimants) contracted with the defendant. The Lead Claimants complain that such
terminations were abrupt, came out of the blue, accused them of falsifying accounts and
made other statements that were not factually accurate, and also that the defendant’s
approach (and that of its solicitors) was generally heavy handed. I have read some of this
correspondence, as it was exhibited to the witness statements. The tone of some of it is
undoubtedly aggressive and, literally, dismissive. I make no findings about any of this at
this stage, nor do I even consider whether such an approach was, or was not, justified in
any particular individual case at the time. However, regardless of any rights and wrongs
of such an approach then, with the Lead Claimants individually in that correspondence, I
wish to make one point entirely clear, so that this cannot be misunderstood. An
aggressive and dismissive approach to such major Group Litigation (or indeed any
litigation) is entirely misplaced. I repeat that such litigation has to be conducted in a
cooperative fashion and in accordance with the overriding objective in the CPR."°
Common Issues Trial
53. In its written opening submissions Post Office sought to remind the Court that (at
paragraphs 29-31):
“29. This trial is the first stage in the resolution of the issues in the group litigation.
It necessarily precedes the determination of issues as to the functions and
reliability of the Horizon system and the determination of matters going to breach
of contract and liability in individual cases.
30. The Court confirmed in Judgment No. 2 that it would not be drawn into
“making findings on the Horizon Issues, or...making findings on breach” at the
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present trial (para. 52). Post Office welcomes that ruling. Post Office anticipates
that Cs’ case on the supposed relevance of its breach allegations to the Common
Issues will become more fully articulated at trial.
31. In any event, it will be important for the parties not to stray into issues that fall
to be determined at the Horizon trial and/or issues as to breach. The Court will
recall that Post Office has not adduced any evidence at this trial to make good its
case on Horizon; nor has it sought to address in evidence the various breach
allegations that appear in Cs’ witness evidence. Post Office has not prepared for
a trial on Horizon or a trial on breach. The function of this trial is not to reach any
findings on those issues, or on facts that go to those issues.”
54. This position was reiterated in oral opening submissions (Page 165 to 166):
"You will see what we said in our written opening about things that it would be
useful -- findings to make and not to make. In your number two judgment you
made it clear you are not making findings on the breach allegations or allegations
about Horizon.
MR JUSTICE FRASER: Everyone is agreed about that
MR CAVENDER: See paragraph 52. What I also ask that you don’t do is make
any findings of fact that go to -- are ancillary to those breach allegations or
Horizon allegations , rather than the Common Issues. Otherwise, again , you
have the difficulty of overlap and arguments about issue estoppel and all these
kinds of things .
MR JUSTICE FRASER: It depends what you mean by findings of fact that go to
breach. I imagine, if there are any necessary findings of fact at the end of the
evidence in terms of disputes of fact as to whether Mr Bates got document X, you
won't want me to leave that floating in the air , will you?
MR CAVENDER: My Lord, no. That goes to my first category of --
MR JUSTICE FRASER: I know that and I haven't yet bottomed that out with Mr
Green. Because, on one view, a finding of fact that goes to breach could involve
any finding of fact in relation to the contractual relationship , couldn't it ?
MR CAVENDER: But what I am talking about is downstream. So the training
wasn’t good enough, that they didn’t have sufficient report writing , that they didn't
have enough help with investigations ; all those things that are downstream.
Potentially breach. We haven't brought the evidence to the trial to deal with it .
There hasn't been full disclosure on some of these issues . So we won't be
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dealing -- and this has been our persistent position -- obviously this is a trial about
the contract and the relationship . Those are my submissions. Obviously the court
will do what it will do."
55. Post Office also highlighted in its Written Openings the findings which may made
in Judgment No.2:
"The Court confirmed in Judgment No. 2 that it would not be drawn into “making
findings on the Horizon Issues, or...making findings on breach” at the present trial
(para. 52). Post Office welcomes that ruling. Post Office anticipates that Cs’ case
on the supposed relevance of its breach allegations to the Common Issues will
become more fully articulated at trial.
In any event, it will be important for the parties not to stray into issues that fall to be
determined at the Horizon trial and/or issues as to breach. The Court will recall that Post
Office has not adduced any evidence at this trial to make good its case on Horizon; nor
has it sought to address in evidence the various breach allegations that appear in Cs’
witness evidence. Post Office has not prepared for a trial on Horizon or a trial on breach.
The function of this trial is not to reach any findings on those issues, or on facts that go to
those issues." “°
56. Post Office's closing written submission following the Common Issues Trial made
a number of points on the scope of the Common Issues Trial — see paras 31 to
51 and paras 126 to 131 of the Defendant's Written Closings. In particular,
56.1 "It remains acutely important not to stray into issues that fall to be
determined at the Horizon Trial and/or future trials on breach and liability.
The Court will recall that Post Office has not adduced any evidence at this
trial to make good its case on Horizon; nor has it sought to address in
evidence the various breach allegations that appear in Cs’ witness
evidence. Post Office has not prepared for a trial on Horizon or a trial on
breach. It has not, for example, led expert evidence on Horizon, and it has
not provided anything like the accounting evidence that it would lead at a
liability trial. The function of this trial is not to reach any findings on those
issues, or on facts that go to those issues.™”
56.2 "In this context, it was wholly unfair and unattractive for Cs to criticise Post
Office’s witnesses for having failed to address irrelevant material in their
witness statements: see, e.g., the implied criticism of Ms Van Den Bogerd
for not having addressed in her witness statement various internal Post
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Office documents that have been disclosed {Day8/165:12}, despite the fact
that such documents are irrelevant to the Common Issues and any
evidence in relation to them would be inadmissible. Ms Van Den Bogerd’s
witness statement was of course prepared in light of the limited permission
to file and serve evidence “in relation to Common Issues”: see para. 10 of
the First CMC Order {B7/7/5}. She makes clear in the witness statement
itself that her evidence is limited to matters that she considers could have
been known or anticipated by an applicant SPM at the time of contracting:
see, €.g., para 64 (in relation to the operation of an agency branch)
{C2/1/17}, paras 91-98 (in relation to Horizon) {C2/1/27}, paras 114-115 (in
relation to further training and support) {C2/1/32} and para 116 (in relation
to retail “shrinkage”) {C2/1/33}. She was careful not to trespass onto the
Horizon Issues: see, e.g., Fn. 22 and 24 {C2/1/23}. It is perverse to criticise
a witness for seeking to comply with a direction as to the scope of evidence
and for limiting herself to admissible evidence. Ms Van Den Bogerd of
course had the benefit of advice as to the proper scope of her evidence:
{Day9/73:7} to line"®
I section relating to witness slating]
57. Finally it was addressed in oral closing submission:
Day 14, page 27
18 MR JUSTICE FRASER: And you don’t take post-contractual
19 matters into account on either footing .
20 MR CAVENDER: Or hindsight or views from hindsight. You
21 have to ask the right question. The right question is
22 not: well, is it reasonable? You don’t ask: well , what
23 term should be implied in light of what happened in
24 fact ? That is the mistake made in Bou Simon by the
25 First Instance that the Court of Appeal identified . And
Page 28
J there is a real risk of doing that here - -
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2 MR JUSTICE FRASER: I don’t think there is .
3 MR CAVENDER: It’s an easy mistake to make as Bou Simon
4 shows. There is a lot of evidence here of that nature.
5 My learned friend has put his case both in
6 cross-examination and his closings on that basis . So
7 you have a yawning invitation to make a mistake and it
8 is my job to try and prevent that happening and I intend
9 to try and do that. But in doing that , you have to be
10 very careful what question you ask and what evidence you
11 have regard to when you ask it .
12 I will just divert a moment and put some skin on
13 those bones. When you are looking at implied terms
14 particularly , my learned friend is fascinated by doing
15 it in the guts of the dispute and the thing going wrong.
16 When you know a lot more detail - - and at that stage you
17 would be able to identify certain cardinal obligations
18 and things that have gone wrong and try and put them
19 right. "Tempting but wrong”, in the words of M&S.
20 At the stage you're contracting you know very much
21 less . You have a very high level view of what you
22 expect. So the very notion of being able to imply
23 precise terms dealing with suggested infelicities or
24 difficulties down the line is itself wrong headed
25 because you wouldn't be able to do that .
Page 32
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24 We also say it was somewhat cynical of the claimants
25 to take this approach because there has not been full
Page 33
1 disclosure on either side dealing with the issues they
2 now seem to want to be dealt with. In particular , what
3 we call the breach allegations , we only have a few
4 documents that happen to be caught in the net of the
5 word searches. Your Lordship should not think that we
6 have full disclosure on all these issues . We do not.
7 And the real temptation here is to think you have and to
8 draw inferences from an incomplete documentary record,
9 incomplete evidence, which would in my submission be
10 obviously wrong.
11 So, for instance , your Lordship should not be fooled
12 into thinking there has been anything like proper
13 disclosure on allegations as to training or shortfalls
14 or investigations . Your Lordship did not order such
15 disclosure , there has not been such disclosure , and
16 Post Office has not led evidence on those issues . My
17 learned friend has put questions on those areas - -
18 MR JUSTICE FRASER: You have led evidence on training .
19 MR CAVENDER: My Lord, only very, very high level . I think
20 it was a couple of paragraphs --
21 MR JUSTICE FRASER: Quite a lot of your evidence was high
22 level in some areas, and 1’ m not criticising , 1’ m
23 observing, but you did lead evidence on training .
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24 MR CAVENDER: My Lord, only just high level evidence. If
25 you wanted evidence on training , we would have evidence
Page 34
1 from trainers and the proper documentary record of the
2 plans et cetera . All we did was have a few slides , that
3 wasn’t proper evidence.
4 The other thing about training of course is it is
5 wholly irrelevant . Why? Because my learned friend's
6 case is that all the contracts were made in advance of
7 even initial training , let alone subsequent training , so
8 the whole question is wholly irrelevant .
9 MR JUSTICE FRASER: The irrelevance point I understand, but
10 it is wrong to submit you didn’t put in any evidence on
11 training - -
12 MR CAVENDER: We didn’t put any proper evidence on
13 training - -
14 MR JUSTICE FRASER: Mr Cavender, there is no distinction
15 between putting in evidence and putting in proper
16 evidence. You might have a point that it could have
17 been more comprehensive --
18 MR CAVENDER: There has been no disclosure on training.
19 MR JUSTICE FRASER: There might not have been. But you did
20 put in evidence on training because some passages of
21 your witness statements expressly deal with training .
22 MR CAVENDER: My Lord, yes, there is a paragraph or two in
23 Mrs Van Den Bogerd’s statement that on a very high level
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24 says . But not evidence of training where your Lordship
25 can make any finding. Her evidence is about what could
Page 35
1 have been known or anticipated at the date of inception ,
2 that is what her evidence goes to if you look at it , not
3 the actual experience of training , how good or bad it
4 was, were shortfalls dealt with in sufficient detail ,
5 which is the point my learned friend wants it for .
6 MR JUSTICE FRASER: By "date of inception ”, do you mean ...
7 MR CAVENDER: The contractual date.
8 MR JUSTICE FRASER: The contractual date.
9 MR CAVENDER: Indeed. That is why it is so general .
Page 36
7 In my submission, the court should be focusing its
8 findings on the date of contracting , we just touched on;
9 what each lead claimant knew or could be taken to have
10 known at the date of contracting through his or her own
11 due diligence and through the interview process;
12 findings as to what a reasonable person in the position
13 of the claimant would have understood about
14 the relationship as at the date of contracting ; and
15 points of credibility going to lead claimants where they
16 bear on any of those earlier points .
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Page 43
24 MR JUSTICE FRASER: I understand your submission: you are not,
25 because of the nature of the peculiar situation in which
Page 43
J the claimants find themselves, inviting me to make
2 adverse findings on their credibility .
3 MR CAVENDER: Correct.
4 MR JUSTICE FRASE:
: Is that right ?
5 MR CAVENDER: It is.
6 MR JUSTICE FRASER: So when you put to at least some of
7 them, I think , that they weren’t telling me the truth ,
8 do you want me to ignore their answers?
9 MR CAVENDER: My Lord, it is really a matter for you at the
10 end of the day, what you think is proper. What I am
11 saying is that there has not been full disclosure on
12 those matters, that the reason that it was put was to
13 seek to undermine the impression they had given in their
14 witness statements that they were telling the full
15 story . So what we are left with, my Lord, in my
16 submission, is , you should treat their witness evidence
17 with caution , because you have seen that not in every
18 respect has their account of the way things worked out
19 been full or sometimes fair .
Page 45
23 MR JUSTICE FRASER: So far as the claimants’ evidence is
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24 concerned, therefore , you say treat it all with caution
25 for all the reasons you have gone through, but you are
Page 46
1 inviting me not to make any findings on their
2 credibility .
3 MR CAVENDER: Indeed.
4 MR JUSTICE FRASER: Any adverse findings on their
5 credibility , is that right ?
6 MR CAVENDER: Yes, because to do so you would have to make
7 findings as to the accounting system, to the TCs, what
8 happened in fact , and you haven't had full evidence on
9 that by any means.
10 You can test it in this way: these are questions of
11 breach, this is a classic question of breach. This is
12 what they will be if there is a breach trial in October,
13 or whenever it is going to be, that will be exactly what
14 these witnesses will be putting forward. But then with
15 the benefit of the judgment here as to what the rules
16 are , and with Horizon and how good or bad that is . But
17 this will be the meat and drink of that breach trial .
18 Now, what has happened in this court in the last
19 four weeks is a fact . It has been recorded, it is in
20 the transcript . Those witnesses can of course be taken
21 back to that evidence during the breach trial and it
22 will be surprising if they were not. So it is not
23 wasted, it is in the can... It is still as a matter of
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24 record it is there . But for you to make findings on it,
25 my Lord, we go further , for the same reason you
Page 47
1 shouldn't make findings on the accounting processes
2 generally and all these other matters that have come in
3 by a side wind but there has not been full disclosure
4on.
Page 52
2 MR CAVENDER: The
3 bright line I am making is issues of breach really .
4 MR JUSTICE FRASER: You are saying don’t go near findings
J that relate to breach, is that right ?
6 MR CAVENDER. Indeed.
7 MR JUSTICE FRASER: Is that the best way of summarising it?
8 MR CAVENDER: It is, and we said that at the beginning. And
9 your Lordship said in judgment 2 you are not going to
10 make findings on breach, and I said good, obviously, but
11 also don't make findings of fact leading to those
12 questions of breach. Not obviously whether there is
13 a contract or not, you could - - if you took that too
14 far . But not in directly leading up to findings on
15 breach, or would do. Platforms of fact that would lead
16 to that.
17 MR JUSTICE FRASER: Understood.
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Page 63
11 MR CAVENDER: So in summary on important points of this
12 introduction in terms of scope, the court should not
13 have regard to post-contractual evidence, evidence of
14 breach, for two distinct reasons: firstly , to do so
15 would involve a basic error of law, and, secondly, would
16 involve a serious procedural irregularity . It would do
17 the second because the orders of the court setting out
18 the issues for trial and the issues on which evidence
19 were to be admitted is set out in the Common Issues.
20 The Statements of Case have been ordered to be limited
21 to those issues , see paragraph 8, and the witness
22 statements were limited to those issues , see
23 paragraph 10. That is the trial Post Office has
24 attended and involved itself in . It has not engaged in
25 wide-ranging evidence on breach, which the claimants
Page 64
1 have, and so not only would it be an error of law to
2 have regard to it , it would also be procedurally unfair
3 for that reason. Because in the absence of full
4 disclosure on matters such as the dispute , Horizon,
J accounting, procedures, deficits , training and Helpline ,
6 without full evidence and disclosure on all those
7 points , the court should not engage in inferential
8 findings or comments along the way. It shouldn't do so
9 as a matter of procedural fairness but also particularly
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10 given there are two other trials that have been loaded
11 in the system effectively on Horizon and on breach,
12 where on those very matters there will be full
13 disclosure , there will be full evidence and there will
14 be determinations.
15 The other point I mentioned I think earlier was
16 whether you should also be careful because of the nature
17 of the way it has been set up - - we had a humorous
18 debate about whether it was odd or not, but whether you
19 should make comments as well about "be careful to ”,
20 because, otherwise, an independent observer might think,
21 wrongly obviously, that the comments you make are
22 a route along the way to reaching a particular view or
23 a finding , which you would then have to find in judgment
24 two or three - - sorry , in trial two or three . So again
25 there is that sensitivity , which your Lordship no doubt
Page 65
1 will obviously have in mind.
58. Following the conclusion of the Common Issues Trial, the Defendant's Counsel
provided the Court with a document which summarised Post Office's proposed
approach to findings of fact. “°
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SECTION 3: SCOPE OF DISCLOSURE
2 February 2018 —- Case Management Conference
59.
60.
61.
62.
The second CMC was held on 2 February 2018, for the primary purpose of
resolving the scope of disclosure to be given by the parties. It was common
ground between the parties that “disclosure for the purpose of the Common
Issues trial should be designed to assist the parties and the Court in resolving the
Common Issues.’
Post Office’s position was therefore “Stage 2 disclosure should not extend
beyond that which can be expected to provide relevant evidence on those
issues. As noted above, the Common Issues are largely matters of
contractual construction, although certain of them may require a slightly
broader consideration of the nature of the legal relationship between the parties.
The parties must therefore keep in mind the fairly limited scope of factual
evidence that will be admissible at the trial of the Common Issues and the
effect that this has in terms of limiting the disclosure that is necessary and
proportionate. The Court will not, in resolving issues of contractual construction
(including whether terms are to be implied into the agreements 5), go beyond
admissible matrix of fact evidence.”*'
(emphasis added)
Post Office also raised its concerns that “the Claimants have not taken on board
the limited scope of evidence (and therefore disclosure) that will be admissible in
relation to the Common Issues.” and repeated its issue that the Claimants had
been unwilling to identify the facts on which they would rely for the purposes of
construing the agreements. The position remained that "The Claimants refuse
in that paragraph to limit themselves to the matrix of fact that they have identified
clearly in the pleading, which leaves Post Office in the position of not knowing
what facts the Claimants may seek to prove and rely on for the purposes of
construing the agreements."
Where the Claimants has identified specific paragraphs in the GPOC "many of
those paras plead facts that are not even arguably matrix of fact for the
construction of the contracts (or even, to the extent this is different, facts that
may be relied upon in determining the nature of the legal relationship between the
parties). See, for example, paras 14, 19, 22-27, 29-30, 32, 34-35 and 38-39 at
°° Post Office’s Skeleton Argument, page 4 to 5, paragraph 12 {C8.3/2/4-5}
5" Ibid
% Post Office’s Skeleton Argument, page 5, paragraph 13 {C8.3/2/5}
°3 Post Office's Skeleton Argument, page 5, paragraph 14 {C8.3/2/5}
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[CM/V1/B3]. Many of these paras do not relate to the content of the parties'
agreement or even to facts and matters that were known to the parties at the time
of contracting and which might in principle be admissible background for the
construction of the agreements; they relate instead to what in fact happened after
the contracts were entered into. Many of them are advanced in support of
allegations of breach, rather than duty."
63. The Claimants had justified their approach to disclosure on the basis of seeking
documents showing what actually happened and being documents which post-
dated the entering into of the contract. This disclosure would be inadmissible at
the Common Issues Trial.
64. As explained at paragraph 22 of POL skeleton: "Thirdly, insofar as any broader
factual enquiry may be justified by the inclusion of Common Issues 17 and 18,
such enquiry is limited to evidence going to the "true agreement"9 between the
parties in relation to the circumstances in which Post Office could lawfully
terminate the agreements: see paras 69-71 of the AmGPoC [CM/V1/A3/39]. It
cannot justify opening up the question of "what actually happened" in relation to
the provision of training, the conduct of audits, enquiries and investigations, the
operation of suspense accounts, etc."
65. Post Office raised specific issues with "the main burden of the disclosure sought
by the Claimants would be aimed at the investigation of post-contractual facts
that were known only to Post Office, e.g. Post Office's contemporaneous
knowledge of any supposed deficiencies in its training processes that may be
revealed by internal emails etc. Documents of this kind might ultimately be
relevant to liability issues, which are to be determined in the Lead Cases, but they
cannot provide material for the construction of the contracts in the Common
Issues tria1.10 The Common Issues trial is limited to questions of contractual
construction and the identification of the legal relationship between the parties."
(Para 23(a)).
66. At this CMC, Fraser J summarised the position:
MR. JUSTICE FRASER: Mr. de Garr Robinson and, indeed, Mr. Cavender are
adopting a conventional, he was and Mr. Cavender is adopting a conventional
approach as set out in the authorities, which Mr. Cavender has helpfully reminded
me of, such as Amold v Britton, et cetera, which is the extent to which factual
matters can or should be taken into account or are even admissible on the
construction of the contractual provisions.
“4 Post Office’s Skeleton Argument, pages 8 to 11, paragraphs 21 to 24 {C8.3/2/8 - 11}
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MR. GREEN: Indeed.
MR. JUSTICE FRASER: When this discussion/dispute arose at the last CMC,
you addressed me shortly on why there was the need for factual evidence at all
on the common issues, which you effectively said it is to put the contractual
relations in context. I am giving you a shorthand, but that is more or less what it
is. At that point Post Office were saying that they were very worried, because
until they saw your witness statements they did not know the scope to which you
were perhaps going outside the envelope with that admissibility to include an
enormous amount offactual matters which simply will not be relevant or will not
need to or, indeed, ought to be considered when I deal with common issues in
November.
MR. GREEN: Indeed.
MR. JUSTICE FRASER: That disagreement bubbles on is now is leaking into the
disclosure field. Is that it in a nutshell?
MR. GREEN: Yes. Your Lordship appreciates orthodoxy I would also claim for
myself.
MR. JUSTICE FRASER: Yes, Mr. Cavender has an associated sort of
concern/point about the extent to which whatever facts you are going to be
relying on are identified in advance within the framework of your pleading-type
point, but that is really the battleground. Is that right, Mr. Cavender?
MR. CAVENDER: My Lord, yes, that summarises it.55
67.
68.
Mr Cavender summarised that the issue with the disclosure sought by the
Claimants was that it "The next big picture point is, my learned friend seems to
not understand the difference between factual matrix and evidence of that, even
in a broad sense, and evidence of breach. If you go through, as I will in a
moment, schedule 2, part 2, very much of the schedule is identifying where Post
Office is allegedly not following its polices in breach of them. That can not begin,
in my submission, to be admissible on the question of the duties under the
contract. It shows whether or not they have been breached. You do not go and
look at how badly, how often a party has breached a contract in order to
determine its terms. It is fundamental and obvious."
Mr Fraser summarised the position as being "At the moment, as I understand
your position, it is that the documents currently crafted in the indicative table is far
58 Page 5, Section F to Page 6, Section C {C8.3/3/5}
% Page 20, Section C, {C8.3/3/20}
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too wide and does not go to common issues."”
69. Overall, the outcome of the matters discussed at this CMC were summarised in
Post Office's skeleton for the strike out application as consisting of: *
69.1 "Post Office contended that many of the matters on which Cs apparently
intended to rely for the purposes of construction could not be admissible
because they were not known, believed or anticipated by the parties at the
time of contracting:
“Many of these paras [in the AGPOC] do not relate to the content of the
parties’ agreement or even to facts and matters that were known to the
parties at the time of contracting and which might in principle be
admissible background for the construction of the agreements; they
relate instead to what in fact happened after the contracts were entered
into. Many of them are advanced in support of allegations of breach,
rather than duty.” (original emphasis)"
69.2 "The Court gave a clear indication that the Common Issues trial would not
involve the determination of any issues as to whether and to what extent
Horizon “threw up errors”."
69.3 "Cs argued that the Court should nonetheless not “be deprived of the
eloquence of a measure of generic reality as to what was going on”, but
they did not appear to object to the basic point that Horizon Issues were to
await the Horizon Issues trial and so could not be the subject of evidence in
the Common Issues trial.
69.4 ‘It is worth noting that, if Post Office had anticipated that the Common
Issues trial would involve an investigation of issues as to alleged breaches,
it would have argued for a very different disclosure regime. However, the
hearing proceeded on the opposite basis, as did the restored hearing on 22
February 2018."
22 Feb 18 CMC
70. A subsequent CMC was held on 22 February 2019 to [x]. As summarised in the
Cs supplemental note "One particular point of contention is the Defendant's
insistence that certain categories of documents should not be disclosed because
57 Page 22, Section C, {C8.3/3/22}
8 C8.10/2/5
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they relate either (a) to breach issues, or (b) to the subjective intention and/or
knowledge of the Defendant." °° Post Office has set out its objections to the
Claimants disclosure request in WBD's letter of 13 Feb 18 which enclosed a
document setting out comments upon the categories of document forming the
subject of the Model C Request.
71. Post Office's position was explained in its Skelton argument for the CMC: "should
be limited to documents that may provide admissible evidence for the resolution
of the Common Issues, principally matrix of fact evidence. It relied on the well-
established orthodoxy as to admissibility of evidence for the purposes of
contractual construction.
The Cs sought much broader disclosure, to be given in accordance with Model D, arguing
that the disclosure should cover not only the terms of the parties' agreement but also
what in fact happened in the course of their relationship. Cs invited the Court to order
broad generic disclosure that would bring a "measure of generic reality as to what was
going on"
Further, "Post Office made clear at the last hearing that this disclosure would likely
extend well beyond those documents that would be admissible for the purposes of
contractual construction but that it had sought to reach a pragmatic compromise in light
of Cs' extremely broad requests and the current absence of any proper pleading as to
matrix of fact. The Cs will receive very large quantities of documentation, which will fully
cover any matters which could even arguably constitute part of the factual matrix (and
some matters which could only have, at best, forensic relevance and which will be
inadmissible at the Common Issues Trial).""
72. Post Office disclosed [KXXIxxx] documents under Stage 2 disclosure, which was
documents for the purpose of the CIT. As explained in the POL's skeleton for the
CMC on 22 Feb:
"Under its Schedule 2 proposals, Post Office would anticipate disclosing, in
addition to the documents relating to the Lead Claimants under Schedule 1,
around 100,000 — 200,000 documents. This is an extraordinary amount of
disclosure to be provided for the purposes of determining the nature and content
of the parties' contractual relationship (being principally matters of contractual
construction), taking into account the following:
S° Para 22 {C8.4/1/5}
© Para 6(a) to 6(b) {C8.4/2/2-3}
®' Para 16, {C8.4/2/2}
AC_154878848_1 59
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a. For almost all of the issues, any evidence as to what in fact occurred after the
agreement was entered into (or, where relevant, varied) will be inadmissible: see,
for example, Arnold v Britton [2015] A.C. 1619 at [21] per Lord Neuberger. Post
Office anticipates that much of the evidence that the Cs may wish to lead will be
inadmissible and liable to strike-out.
b. It is true that there are Common Issues that go beyond matters of contractual
construction. But they are very limited in scope: see Common Issues 17 and 18,
relating to the "true agreement" between the parties as to the circumstances in
which Post Office could lawfully terminate the agreements. The Court in
November will not be concerned with the facts as to what happened in terms of
training, the operation of the Helpline, the discovery and investigation of shortfalls,
the operation of Post Office's financial systems and client accounting, etc.
c. The Common Issues trial is a trial of Lead Claims. In the unlikely event that any
broader disclosure might shed light on the construction of the Lead Claimants' contractual
relationships with Post Office, such disclosure is to be provided in any event under
Schedule 1."
73. The dispute between the parites at this CMC was summarised in POL's skeleton
as:
"(a) The proper scope of factual matrix disclosure should not be in doubt (and if
there was any doubt, it ought to have been removed by the discussion at the last
hearing). Matters which occurred after the entry into, or (where relevant) variation
of, the relevant contracts cannot be relevant to their proper construction.
Similarly, no material which was only within the purview of one party to a contract
can be relevant to its interpretation. The purpose of the Common Issues Trial is to
establish, in the context of the upcoming Lead Claimants' trial, the meaning of the
relevant contracts. The disputed requests have no relevance to that exercise; as
opposed to, for example, the subsequent exercise of determining whether there
was breach of the obligations as determined in the Common Issues Trial.
(b) In their letter of 19 February, the Cs suggest that disclosure going beyond the factual
matrix is required. They observe that one issue in the Common Issues trial will be as to
the ‘burden of proof’, i.e. whether, under the relevant contracts, the Post Office is entitled,
in the absence of evidence to the contrary, to treat any shortfall as being the
responsibility of the relevant Subpostmaster. The Cs note that Post Office's pleading on
this point makes reference to background facts such as the Post Office's difficulty in
knowing what explains any given loss.. They argue that this justifies wide-ranging
disclosure on related matters. That is wrong. The only matters relevant to the proper
© Para 17, {C8.4/2/2}
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construction of the contract (as to burden of proof or anything else) are matters which
were publicly known or ‘crossed the line' between the parties — including what both
parties knew about the difficulties for Post Office in determining the cause of a shortfall.
But if some internal Memorandum at Post Office lamented how difficult it was to
determine the cause of a shortfall, that would not be a reason for construing the contracts
in the way that Post Office submits they should be construed, i.e. with ‘burden of proof’
on Subpostmasters. The converse is equally true — some internal Memorandum
privately lauding the ease of investigating shortfalls would not assist the Cs' case on
construction."*°
74. Post Office went on to bring the specific requests to the Court's attention:
(a) Requests c and d cover documents that could only shed light on Post Office's
Subjective views as to the construction of a contractual provision. Such evidence
would be inadmissible and is irrelevant.
(b) Request e relates to discussions between Post Office and Fujitsu as to bugs,
errors or defects in Horizon. It is entirely irrelevant to the construction of the
parties' agreements.
(c) Request f is extremely broad (covering all "instructions", irrespective of the
class of document in which such instructions might be provided) and relates in
any event to accounting operations in practice, rather than shedding any light on
the construction of the agreements. Similar comments apply to request 37.
(d) Request i proceeds on a fundamental misunderstanding of Post Office's case on the
burden of proof: see paragraph 19(b) above."**
75. Post Office's approach to disclosure was to " scope the disclosure by reference to
the evidence that might plausibly be admissible and useful in the resolution of the
Common Issues. It has focussed on disclosure that might plausibly bring to light
documents that could assist in identifying facts known to the parties at the time of
agreeing the contractual documents (and variations to those documents) and that
might assist in construing the express terms of the agreements and/or
determining whether or not an alleged implied term is necessary. In doing so,
Post Office has already gone beyond what is admissible evidence at the Common
Issues trial and has volunteered disclosure of other classes of documents where
they can be narrowly defined.”**
° Para 19 {C8.4/2/7}
° Para 20 {C8.4/2/7}
® Para 21 {C8.4/2/8}
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76. The Claimants submitted a responsive to note to Post Office's skeleton which
stated " The Defendant's Skeleton Argument (particularly at §25, on Horizon
Issues; and, more generally, at §19 to §21) requires two points to be made
against two documents already disclosed by the Defendant: (1) the factual
assertions in §251 are unsupported in evidence and do not sit well with the
revelations on the face of the appended documents; and (2) the effect of the
Defendant's selective approach to the factual matrix is apparent from those
documents.” In relation to point (2) the Claimants gave an example that "
whether facts ‘only within the purview of one party can be relevant' [§19(a)] and
whether the facts which Post Office has expressly pleaded to be ‘important’ to
construing the contract [GDef §76] can now be finessed as only ‘background’
[§19(b)] and disregarded in construing the contract."*”
77. At the CMC on 22 Feb 18:
"MR. GREEN: The second broad area of disagreement goes back to some
submissions your Lordship heard about the orthodoxy and relevance of factual
matrix matters. May I make this point, that there remains a difference in principle
about the relevance of Post Office knowledge.
MR. JUSTICE FRASER: That I am aware of from reading the documents for
today but it surprises me, given what I said last time.
MR. GREEN: My Lord, may I say this. There are two points which we respectfully
say are inescapable. (1) if the court is going to be asked, what was knowledge
common to both parties, not just communicated by one to the other necessarily,
but common to both parties, let us take for example
MR. JUSTICE FRASER: Hang on, finish the submission, knowledge common to
both parties is a concept I can grasp without an example.
MR. GREEN: That does require the court to examine what each party knew, we
Say, in particular, the Post Office. The example my learned friend gives, I can go
back to paragraph 19 for this one, paragraph 19(b) on page 7, it is the bottom of
paragraph 19(b), just below the top hole punch, well, perhaps the criticism
immediately above the top hole punch is half way across the page: "The Cs note
that Post Office’s pleading on this point makes reference to background facts" I
will come back to that phrase "such as the Post Office’s difficulty in knowing what
explains any given loss. They argue that this justifies wide-ranging disclosure on
related matters. That is wrong. The only matters relevant to the proper
© C8.4/3/1
® Ibid
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construction of the contract (as to burden of proof or anything else) are matters
which were publicly known or ‘crossed the line’ between the parties — including
what both parties knew about the difficulties for Post Office in determining the
cause of a shortfall."
This is his specific example. He says then: "But if some internal Memorandum at
Post Office lamented how difficult it was to determine the cause of a shortfall, that
would not be a reason for construing the contracts in the way that Post Office
submits they should be construed, i.e. with ‘burden of proof’ on Subpostmasters."
Pausing there, my Lord, simpliciter that is true but if it were one of two necessary
parts to common factual facts known to both parties then it would assist. So, if
both parties knew that it was difficult and they could not do it then that is, on my
learned friend's orthodox test, an essential component of what he is trying to say.
That is why, when he then goes on to say a converse example is completely
wrong because he says at the bottom: "The converse is equally true — some
internal Memorandum privately lauding the ease of investigating shortfalls would
not assist the Cs’ case on construction." If your Lordship is going to be asked to
take into account in construing a contract, a common fact known to both sides,
that it was very difficult for the Post Office to know what causes shortfalls, when
in fact the Post Office knew exactly how it could do that and the Post Office did
not share that factual knowledge, that would be wrong.
MR. JUSTICE FRASER: Mr. Green, by definition it is not common knowledge.
MR. GREEN: Precisely.
MR. JUSTICE FRASER: This is, with respect, rather off the point for this reason.
! thought I made this crystal clear last time but I appear not to have done so I am
going to repeat myself, so far as resolving the Common Issues which are, and I
have reminded myself what they are, purely points of construction.
MR. GREEN: Indeed.
MR. JUSTICE FRASER: On the authorities the only factual matrix which is
relevant to construe the meaning of those contracts in law is common knowledge.
That is without doubt orthodox and the correct way of doing it.
MR. GREEN: No doubt about it.
MR. JUSTICE FRASER: That does not mean, and I think the expression I used in
the transcript two weeks go, but the expression I used perhaps over dramatically
was a smoking gun, that does not mean that smoking gun-type documents are
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not disclosable because I have the ability to order documents of that nature,
whether they are going to be relevant to the point of construction or not. I also
thought I made it clear that they had to be narrowly focused requests and the
existing requests were far too wide.
MR. GREEN: Indeed.
MR. JUSTICE FRASER: I have your point about the orthodox factual matrix. Mr.
Cavender, to be fair to him, explained this very clearly on the last occasion. We
did not go into the authorities but I thought I made it clear that his approach on
construction was indeed correct.
MR. GREEN: Well, my Lord, yes ----
MR. JUSTICE FRASER: We are not arguing the point now for decision.
MR. GREEN: No, we are not argue the point now for decision; that is quite right. I
just wanted to highlight specifically the question, I mean, this is the precise
example that my learned friend relies on.
MR. JUSTICE FRASER: But it does not matter.
MR. GREEN: As to which a lot of our requests go.
MR. JUSTICE FRASER: Mr. Green, it does not matter for this reason. You might
have a good case for an order for disclosure of certain documents anyway,
whether they go to Common Issues or not.
MR. GREEN: Of course.
MR. JUSTICE FRASER: But that does not at this point and it might be when we
go through the tendentious task of looking at your requests, that some of them
are disclosable anyway, whether they are going to Common Issues or not.
MR. GREEN: Indeed.
MR. JUSTICE FRASER: I might choose to order them.
MR. GREEN: Indeed.
MR. JUSTICE FRASER: However, on the last occasion as I understand it, as I recall it
and as I remind myself of it, I made myself clear that Model C was being ordered and
further requests would have to be narrowly focused."
°8 Pages 7 to 10 transcript {C8.4/4/7-10}
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Claim No:
My Canverde for Post Office explained in response POL's position:
"MR. CAVENDER: This is disclosure in relation to the Common Issues of
construction, that is what this schedule is about, nothing else.
MR. JUSTICE FRASER: Understood.
MR. CAVENDER: This idea that, is it for the Common Issues or is it for
something else, I have deep concerns about.
MR. JUSTICE FRASER: The reason I asked that question, Mr. Cavender, and 1
want to be completely clear with you because it might help, is it seemed to me
that some of these could not possibly be said to go to the Common Issues trial,
which is why I wanted Mr. Green to tell me if he was seeking in this schedule for
Common Issues or for some other purpose. That demarcation seems to me
sometimes to be blurred."
MR. CAVENDER: My Lord, it does, but surely the focus must be here relentlessly
on the Common Issues. If he wants to put another request in for some or reason,
let us see it.
MR. JUSTICE FRASER: I understand that.
79.
Mr Cavender continued
"My Lord, this is a theme, it will be my last general submission I make, unless the
court grips this case now on disclosure the next stage is witness statements in
August.
MR. JUSTICE FRASER: Mr. Cavender, the court fully intends to grip the case.
MR. CAVENDER: I am obliged.
MR. JUSTICE FRASER: I would like to think it has been gripped anyway.
MR. CAVENDER: My Lord, yes, but my learned friend keeps coming back with more and
more wide requests. Your Lordship has made yourself absolutely clear on the last
occasion, but he seems not to understand the meaning of "no", and saying "yes" or "may
be" in my submission is not going to be helpful to him or the management of this case.
Otherwise, you are going to get witness statements that deal with the whole story, we will
apply to strike them out largely and the whole November trial and process will be infected
by all these documents, we have already got."”°
€8.4/4/16
” €8.4/4/18
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80. At the CMC the Court went through each of the disputed disclosure requests: for
example:
"MR. CAVENDER: My Lord, no, it is obviously dealing with, how on earth can you deal
with shortfalls and discrepancies, i.e. the accounting function with the Bank of Ireland or
with Camelot, have anything at all to do with the issues of construction you are tasked to
deal with. It is unbelievable that this request is being made really."”"
"MR. CAVENDER: There is no basis and none has been suggested for why documents
as to procedures applied between Post Office and the Bank of Ireland or Camelot or
anyone else for dealing with the accounting function. Discrepancies and shortfalls will
bear upon how you construe the obligations in the contract. The dichotomy we make in
our comment if you look under request a in the second part, the request also relates to
the financial reconciliation process and other operational activities undertaken by Post
Office, that is the bright line. Is this operational Post Office stuff after the event, not
known by either party? Answer, yes, it is. My Lord, that is why I say that items 1 and 2
are more than sufficient for the court to have the background to determine the products
and services issue in the left-hand column."
"MR. JUSTICE FRASER: How do the documents that you are seeking in
Request a go, please, to the proper construction of section 12, clause 12 of the
SPMC(?) and part 2, paragraph 4.1 of the MTC(?)"
"MR. GREEN: The answer is in three parts.
MR. JUSTICE FRASER: Give me the three parts.
MR. GREEN: The first part is that the Common Issues relates to a contractual
term between the parties about the burden of proof. That is point 1.
MR. JUSTICE FRASER: It is construction of the contractual term.
MR. GREEN: Yes, construction. It relates to construction of a contractual term of
the contract between the parties, point 1. Point 2, the defendant advances as its
case in particular the point at 76.4 to 6 and contends that those are important
aspects of the factual matrix against which the contract should be construed.
That is the defendant's case. Those items at 4 to 6 are the following. The Post
Office's inability to monitor at first hand the transaction undertaken in branches.
Number 5, Post Office unable to monitor at first-hand the customer use of
property, leave that aside for the moment. Particularly, number 6, Post Office
relies on the accurate reporting by Subpostmasters of accounts, transactions of
™ C8.4/4/17
” C8.4/4/18
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cash (unclear) branch. Should Subpostmasters not accurately report these things
it would be impossible or alternatively excessively difficult to determine if a
shortfall has occurred, when it occurred or why it occurred.
We do not believe that is factually true and that is supported by questions we
have asked our expert. On the basis of that one of the things that the court will
need to do is to look at whether there is any truth in that if that is the defendant's
case. If they want to abandon their case, and say, "yes, we admit we knew
perfectly well, we had lots of access to the background documents, we have
served a notice to admit which may clarify some of those points, they have not
answered it yet but an answer will hopefully come", that is a different situation.
At the moment, my Lord, I am dealing, I am facing a pleading which expressly
advances that point as a point relevant to construction. These documents, the
absence of those documents will deprive the court of the opportunity to construe,
not only deal with the points the defendant takes in the defence which are
pleaded points but also the general point that the court should try and give the
contract commercially sensible meaning. Unless you have the backward facing
part of that on the specific issue we are only asking, my learned friend says it is
all terribly big and difficult, that there is not some standard form in relation to how
you deal generally with transaction discrepancies and reconciliations seems to
me to be wholly unrealistic. It probably will not be identical across 100 people but
the arguments conceal the fact that when you look at what we are asking for we
are specifically asking for generic documents which are the procedures between
Post Offices and clients, specifically in relation to discrepancies, shortfalls and
losses. Nothing else. We do not want a huge disclosure of things.
The idea that there is not some common template for what should happen in
relation to discrepancy, shortfalls and losses seems to us to be absurd. In fact
when you look at it, it is narrow. Second, it specifically goes to their pleading.
Thirdly, paragraph 85 repeats the fact that they are going to rely on those points
in relation to construction of the contracts. Fourthly, paragraph 93 goes to
considerable detail of the fact that other matters that they will rely on, which are
now of course disavowed so that the defendant can try to avoid potentially
damaging documents, are all hugely burdensome disclosure. One or the other,
we do not know which?
MR. JUSTICE FRASER: Is there anything you would like to add?
MR. GREEN: That is the submission.
AC_154878848_1 67
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MR. JUSTICE FRASER: Right, I am not going to order this category. It is too wide and in
my judgment it will be disproportionate at this stage. You are, however, permitted, after
you have your first draft of your expert's report, to make a more narrowly focused
request. It is to be more narrowly focused than this."”°
81.
Another request which was considered was [x]:
"All we are interested in is the sort of overarching documents like the ones we
accompanied with the responsive note. We do not know what they are called so
we have asked for minutes of management meetings to discuss variation of
Postmasters contracts nationally. In so far as the variations that were being
contemplated concerned or impacted on the operation of Horizon branch
accounts and/or discrepancies, shortfalls that may arise therein, we specifically
look at disclosure relating to variation of contracts which is driven by
considerations relating to the generation of these discrepancies or shortfalls. It is
a specific focus.
My Lord, I am not going to repeat the submissions I have made on the first one,
but your Lordship will understand why the submissions are made. I did not go into
the detail at paragraph 93, I am going to now. Your Lordship may remember from
the last hearing that 93(b)(ii) says that it would be unjust for the Post Office to be
required to prove allegations relating to the matter that fall particularly within the
knowledge of the Subpostmasters. So 93.1(b) has three parts to it.
MR. JUSTICE FRASER: Yes.
MR. GREEN: And specifically relates to the legal burden ----
MR. JUSTICE FRASER: Understood.
MR. GREEN: Specifically relates to that liability for alleged losses, burden of
proof point in the Common Issues. This is their specific pleading on it. They say
that the truth lies peculiarly within the knowledge of Subpostmasters and it is
unjust for the Post Office to be required to prove matters that fall peculiarly within
their knowledge and subject to fiduciary obligation. Ignore the third one. It is those
two in (b) which they have specifically put in issue. The idea that the court in
resolving the Common Issues is going to be looking at only one side of the fence
that happens to favour them and for us to be precluded from investigating specific
matters which are obviously relevant to their pleading, we respectfully say would
be completely unfair. I understand your Lordship's concerns about staging this
and proportionality. Your Lordship is not going to have any complaint from me if
C8/4/21 - 22
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some sort of nuanced approach or iterative approach or cautious approach is
taken but it is right that your Lordship knows why we are asking this. Your
Lordship could have got the impression that we had gone away and gone, "oh,
we will just ask it anyway". That is not what happened. We went back to the
pleadings. We said, "well, hold on a second, how is the court going to be fairly
appraised of both sides?" This is something that goes through everything,
including when we get to Horizon discretions. Experts are only invited on their
case to look at how it works from the Subpostmasters' side and not see how it
works from the Post Office side. The idea that the court should do this with one
eye closed, we say, is a wrong approach fundamentally. That is why we are
asking for it. We are specifically concerned with references to contractual
variations which speak to the knowledge the Post Office has in relation to how
these matters were arising. If it needs to be more focused, my Lord, or we need
to revisit it after we have had some initial disclosure I am sure we are prepared to
do that. I make it absolutely clear, I do not want to put an undue burden on them.
MR. JUSTICE FRASER: Understood.
MR. GREEN: But I also put my duty to over 500 claimants to try and make sure
that the court sees both sides of the fence, so that is my submission on it.
MR. JUSTICE FRASER: Mr. Cavender?
MR. CAVENDER: My Lord, I don't understand this request. How possibly can
minutes of management meetings, i.e. the Post Office view of the operation of its
contract, be relevant to the construction of it at an earlier stage? Also, with the
managers and what they say and what they do not say. I cannot imagine any
commercial case where you have a contract where the judge would have any
truck with information at all. This is a whole species of information, minutes of
management meetings, standard advice et cetera, how on earth is that going to
be relevant to construction of the contract that has, by definition, been reached?
On basic principles it is inadmissible. Then when you look at the type of people,
what does it matter one manager says at a meeting about contractual terms? He
might be right, wrong or indifferent. It will not inform the construction of that term.
We make the point in our comments as well. In so far as there were, if you like,
legal-type discussions, then the certainty of a lawyer being there for the Post
Office is almost certain in which case such document would be privileged in any
event.
Bear in mind, my Lord, one has to in each case, what we are giving. Look in the
left-hand column, we are giving suite of contractual documents, suite or product
of service specific contracts we have added in, contractual variations, written
AC_154878848_1 69
Claim No:
policies and process, standard and template documents. We are giving all of the
potentially relevant but very, very broadly relevant material. Is the court being to
be helped by minutes of meetings after the event about operation of that contact?
No, it is not.
MR. JUSTICE FRASER: Right. I do not consider these three categories, may I
just check, I am trying to do it cross referenced against the numbers, Mr. Green,
in your column and Mr. Cavender's letters. Is 9 Request b, 10 Request c and 11
Request d?
MR. GREEN: Indeed.
MR. JUSTICE FRASER: I do not consider these items to be relevant to the Common
Issues trial. Even if they were it seems to me, this is no criticism of you Mr. Green
because you do not know what they are called, but the term management meetings or
the term within a very large organisation such as Post Office management is simply too
vague. However, I appreciate that you have simple difficulty because you do not
necessarily have the exact descriptor."”*
82.
Mr Fraser also considered documents which relate to Horizon:
"MR. GREEN: Is our number 20. This is a request to which great objection is
taken, although the objection is the one that is repeat the seriatim in a number of
cases, but this is the category into which the documents that we attached to our
responsive note would have fallen. I do not have to give your Lordship a
theoretical example of what the court would be deprived of seeing. It is
specifically focused on minutes between Post Office and Fujitsu and specifically
focused on those meetings where known or suspected bugs, error or defects
were considered or discussed, specifically to provide the sort of background
context that is equally provided by the documents which we attached to our
responsive note. So, a pretty vivid illustration of what we will not be getting if that
is not provided. Your Lordship has my point on that. I have your Lordship's
observations about what I may be able to say in due course about ----
MR. JUSTICE FRASER: They are Horizon expert issues really, though, are they
not?
MR. GREEN: They fall, I would say, possibly more into that category but because
of the way that the case has been pleaded, one is always anxious as your
Lordship will remember, from being here looking towards the bench, when parties
are entitled to pursue the case they have actually pleaded and there are sort of
™ C8.4/4/26
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forensic points one can take about the extent to which they might be able to do
that and one can hold up the transcript later, but that is their pleaded case. That
is why I am anxious my Lord, I can being open about the anxiety because your
Lordship is absolutely right they more naturally fall into the Horizon disclosure but,
of course, they could be ordered in that disclosure anyway.
MR. JUSTICE FRASER: They do fall into the Horizon disclosure, subject to one
point of narrowing which is that you have to have a date range.
MR. GREEN: Yes, I think it has been implicit from the generation of the generic
disclosure.
MR. JUSTICE FRASER: That might be right, but, so far as admissibility on Common
Issues it seems to me, although on its face a potentially relevant category, it needs to be
narrowed by reference to date range and it is a Horizon Issue; it is not a Common Issues
category."”°
83.
Mr Fraser was also required to consider the topic of common knowledge:
"MR. JUSTICE FRASER: I know. On Common Issues, unless you were meeting
that pleading with, it is not peculiarly within Post Office's knowledge, it is also
within our knowledge, then it cannot be common knowledge.
MR. GREEN: No, there is a difference, they are contending that the fact that
something, well, say the parties go into contract and they both know that a
nuclear reactor takes a long time to build, there is a twenty-year lead time on
being a nuclear reactor, they know that for example. Or, they know that it is very
difficult to get reliable geological surveys in a particular area of the Antarctic, that
is a fact which you do not need to know what the information of the geological
survey in the Antarctic is but you can have a fact that is about the state of
knowledge of the particular parties or the difficulty of doing something. That is
how they are putting their case. They are saying that the parties knew a fact
which was that other information lay peculiarly within the knowledge of the
Subpostmasters.
MR. JUSTICE FRASER: I know.
MR. GREEN: And that is capable of being a fact itself, they advance that case ---
MR. JUSTICE FRASER: Mr. Green, if that is part of their case and let us put
analogies about nuclear reactors and geological information to one side, if that is
5 C8.4/4/27
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their case this information is peculiarly within the knowledge of the branch
Postmasters.
MR. GREEN: Yes.
MR. JUSTICE FRASER: Your case is, "no, it is not", although a finding will have
to be made as to whether that is a common fact, will it not? Is it part of the factual
matrix against which the contract falls to be construed or is it not?
MR. GREEN: Yes, but the problem is that when we actually get to November we
look back at the hearing, your Lordship is going to be asked to determine whether
it was a fact common to both parties.
MR. JUSTICE FRASER: Yes.
MR. GREEN: That information about transactions lay peculiarly within the
knowledge of Subpostmasters.
MR. JUSTICE FRASER: Yes, if that is in issue I will have to make a finding on it.
MR. GREEN: Yes, but your Lordship at the moment, on my learned friend's
approach, is going to be deprived of any evidence, so are we, of any evidence
that shows you whether or not Post Office believe that themselves. All you are
going to have is the Post Office sitting on their hands silently, "oh, yes, we
thought it was peculiarly within the knowledge of the Subpostmasters. That was
our belief and that was known to us, was it known to you as well?" And it was, it
was a common fact, then your Lordship must construe the contract on that basis.
If we can show on the basis of the evidence which we are asking for, that they did
not think that at all, then deprives them of the chance of establishing common fact
that they seek to pray in aid. That is why
MR. JUSTICE FRASER: Pausing there. Which one are we looking at? Is it f?
MR. GREEN: Well, I was dealing with ----
MR. JUSTICE FRASER: No, no, it is worth actually looking at that submission in
the light of the request that is currently being sought.
MR. GREEN: Yes.
MR. JUSTICE FRASER: How does a written instruction to a trainee about the
availability of transactional information to Postmasters advance that particular
point you have just explained?
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Claim No:
MR. GREEN: Those documents are highly likely to shed light on what knowledge
the Post Office had of the information and the relative availability of such
information as between Post Office and the Subpostmasters. It is specifically
what is unpinning the issue your Lordship will have to decide on that fact.
MR. JUSTICE FRASER: Is there anything further you want to say about number
25?
MR. GREEN: No.
MR. JUSTICE FRASER: Is there anything want to say further about number 26?
MR. GREEN: Let me check. Those submissions apply to both.
MR. JUSTICE FRASER: But is there anything you want to add?
MR. GREEN: No.
MR. JUSTICE FRASER: I am not going to order 25. It seems to me that a far
more narrowly focused request within the framework of 26 could potentially be
relevant, subject to hearing what Mr. Cavender has to say, which I imagine he will
do now, and I am not going to draft a request for you. At the moment it is
defective, with respect, because it is far too widely crafted. Mr. Cavender, it
seems to me on the basis of, for example, however one might put it, a potential
dramatic change ----
MR. CAVENDER: Is your Lordship looking at g because my numbering does not
seem to be the same?
MR. JUSTICE FRASER: Yes.
MR. CAVENDER: Yes, so internal/externally produced management information
reports, briefing papers, dealing with volume, nature of transaction, corrections
since 1999. What that goes to, as we say, appears to be where things have not
gone right, so it is a breach potentially? We have done something other than that
which we should have done ----
MR. JUSTICE FRASER: I think actually when I say there is a kernel within the
chaff of g some high level summary information about the number and value of
the transaction or corrections on an annual basis could be said potentially to be
relevant. I have come to that conclusion separately but then looking in your
column g, purely coincidentally it seems great minds might think alike, you say in
the first three lines of your second paragraph that the Post Office is open to
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considering whether the information sought could be provided through another
means and you then talk about raw transaction.
MR. CAVENDER: Indeed.
MR. JUSTICE FRASER: It seems to me that on the basis of the issues between
the parties on transactional corrections, the claimants are entitled to some
documents or a document which identifies at a high level the number and as a
result of them on an annual basis.
MR. CAVENDER: As we said in our comment, we can try and do that. I think I
am being told that there is not, if you like, a report.
MR. JUSTICE FRASER: No, no, it may be there will not be.
MR. CAVENDER: There is not.
MR. JUSTICE FRASER: It may be there will not be because often systems have
to be asked to present information in a particular way and they just do.
MR. CAVENDER: Or they do or they cannot or they do it in some other way.
MR. JUSTICE FRASER: I am not going to order it now, but what I am going to
Say is this Request g has to be more narrowly focused, it is to be tightly defined
by reference simply to that high level information and it certainly is not going to be
"internally and externally produced management information, reports of briefing
papers" containing information and data because that is just far too widely
worded. If it is more narrowly focused in the specific way I have identified and
Post Office takes a pragmatic view to it, it ought not to be controversial.
MR. CAVENDER: My Lord, yes.
MR. JUSTICE FRASER: Right. There is going to be no order about it. It may be that it
ends up going more to Horizon than Common Issues, but at the moment I consider it is
peripherally relevant on Common Issues even as they are currently understood to be."”®
84.
Horizon Issues Disclosure
MR. JUSTICE FRASER: Your number 27, h.
MR. GREEN: Yes, h which is the ability remotely to detect the counsel's shortfalls
and so forth. Obviously this overlaps with Horizon which we completely accept for
the avoidance of any doubt.
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MR. JUSTICE FRASER: It might be said to be a complete subset of Horizon
rather than an overlap. An overlap suggests it is partly in Common Issues and it is
partly Horizon. It is really a different way of putting the same information, is it not,
that is sought in Request e?
MR. GREEN: I have made your Lordship aware of the anxiety on the pleadings of
express pleas that the contractual terms should be construed by reference to the
follow things set out in 76, that assertion is repeated in 85 and then 93. Your
Lordship has the point.
Your Lordship has assisted me by saying that I can go back to the transcript on
this. I have explained to the court that I have residual anxiety where what we are
talking about is Post Office, the burden of proof is probably one of the biggest
things in the entire trial, possibly. On that specific matter they contend that ----
MR. JUSTICE FRASER: This is the same point that you have explained?
MR. GREEN: It is. Your Lordship will understand the anxiety of an advocate
faced with an express and repeated pleading. In their defence there has been no
application to amend since I drew the court's attention to these paragraphs last
time we were here.
MR. JUSTICE FRASER: These are Horizon Issues though.
MR. GREEN: My Lord, with respect they are not. As I showed your Lordship in
relation to the burden of proof, I am sorry to repeat it but it is not correct to say
they are Horizon Issues. In the defence 93.1(b) specifically deals with the burden
of proof. (b) is about and only about the burden of proof. The burden of proof is
Common Issues 8 and 9.
MR. JUSTICE FRASER: Common Issues 8 and 9 I know you used the short term
"burden of proof "but it is actually about the proper construction of those two
provisions of the two contracts.
MR. GREEN: Which are mainly the burden of proof. Those are the clauses that
say the Subpostmasters are responsible where it is their fault.
MR. JUSTICE FRASER: I know that. Let us just look at the first of your subsets
of 7(a). Let us for a moment consider that Post Office and Fujitsu have between
them come up with a system where there is no ability whatsoever to detect
shortfalls.
MR. GREEN: I know, but that is their case.
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MR. JUSTICE FRASER: I know it is, but you have already got two documents.
MR. GREEN: I know.
MR. JUSTICE FRASER: Let us say that is their case and I am not making any
findings I am just exploring it in argument. How will a note or memorandum on
your 27(a) or h(a) assist with me coming up with the proper construction in law of
section 12 clause 12?
MR. GREEN: The answer to that is that I win on the argument that they deploy at
93(b). That is a pleaded issue, it goes directly to the Common Issues identified
and I win on it. We quite like winning on these issues ----
MR. JUSTICE FRASER: Whether you win on it is not in any way, I imagine, going
to depend on whether there is a note or a memorandum appearing where this
topic is discussed.
MR. GREEN: Hold on a second. My Lord, let us look at what we are talking
about. h says written policy or process documents, guidance notes and
memoranda relating to, well, this is at a general level. We have not asked in
relation to individual cases.
MR. JUSTICE FRASER: I know it is at a general level, I think that is part of the
issue under Model C.
MR. GREEN: The construction of the disclosure process that the parties originally
agreed was, we do the individual claimants and then there is also a generic level
of disclosure Which helps to give the context to those individual sets facts so they
are not in isolation. If we look at (i), which is the one which your Lordship asked
me about, it is relating specifically to the ability of Post Office/Fujitsu remotely to
detect the occurrence of shortfalls, branch discrepancies.
When we look back at 93.1(b) they say this is because the truth of the matter lies
peculiarly within the knowledge of the Subpostmasters. Let us assume the note
that we are asking for says, "The truth of the matter lies peculiarly within the
knowledge of Post Office because this was a Horizon problem, as we have seen
already in one of the documents attached to the responsive note". If it says that
we win on a pleaded assertion which they have repeatedly said is relevant to the
construction of the contract and a clause of the contract which your Lordship has
identified for determination in November as a Common Issue. That is why we say
we would like those documents, please.
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Claim No:
! simply cannot see how my learned friend can suggest for one second that that cannot
be relevant. It is obviously relevant. There is extreme concern on our side that it is not
just the burden of producing the documents that is a disincentive. That often happens in
litigation, people are suspicious. I am not making any criticisms. I am just saying that we
have not chosen to put that in issue, the defendant has. For the defendant to sort of
finesse it in the skeleton saying, well, we mentioned some matters of background and
then make submissions that I have the wrong end of the stick when all I am doing is
reading out to the court the express terms of their own pleading, we respectfully say it is
not really a well-founded position for the defendant to adopt."””
84.1. Mr Green continued:
"MR. GREEN: It was originally (a), it became (i) in the table. The ability of Post
Office 27(a), the ability of Post Office remotely to detect, it is absolutely directly
relevant. The ability to conduct transactions remotely, also I accept that is
adjacent to the first point and I accept that it also obviously falls into Horizon.
MR. JUSTICE FRASER: Which ones do you accept is Horizon?
MR. GREEN. 27(b).
MR. JUSTICE FRASER: Is Horizon?
MR. GREEN: Falls into Horizon but we respectfully say would inform the court's
approach to the pleading that they actually advanced and the extent to which they
actually authorise things to be changed and how the court is supposed to resolve
their contention that the causes of shortfalls were matters that lay peculiarly
within the knowledge of the Postmasters, without having sight of documents
which might show they were actually doing them manually, is bizarre. Let alone
the plea that it would be unjust for Post Office to prove things that fall peculiarly in
the Postmaster's knowledge. It just seems extraordinary.
Even more extraordinary in light of the specific documents which your Lordship obviously
did not have at the last hearing but do show this is not a fanciful fishing expedition. This
is having seen specifically what they have in fact done which we only know about
because Second Sight chanced upon it. That is the thinking that is matching what we
specifically know, there is a proper foundation for it, matching that to specific pleas made
that the defendant has chosen to make about specific terms in the contract which are
specifically in the Common Issues. Your Lordship has my submission."°
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85.
86.
Claim No:
Fraser limited disclosure: "WR. JUSTICE FRASER: I agree with you about that
and I am not going to order it in the way it is framed, but rather than spring it on
you like a rabbit out of a hat, let me be quite clear, written policy and process
documents fall into a different category to guidance notes or memoranda. There
cannot be any possibility of my ordering guidance notes or memoranda as a
narrowly focused request but it seems to me written policy and process
documents relating to those at (i), those at (ii) and those at (vii) are going to be
really either for the Common Issues or as Horizon Issues. If written policies and
process documents are a sufficiently high level of document created at a high
management level in the Post Office, that would be a narrowly defined request if
it had a date range, which I do not believe it does."”°
And order disclosure which concerned the Horizon Issues Trial: "MR.
CAVENDER: (Counsel takes instructions) My Lord, there are two things I want to
say. This is clearly Horizon related, obviously this is the meat and drink of
Horizon, that is the first point. MR. JUSTICE FRASER: Yes.""°
MR. CAVENDER: In terms of you want some definite vision for the purposes of
Common Issues you have got it. The idea of going into the detail of, again,
discrepancies, that we do under h, in my submission is unnecessary. Also you
are going into this idea of shortfalls again. You are going into the accounting part.
This is Fujitsu plus sorry, it is Horizon plus. It goes beyond the Horizon Issues and
is objectionable for that reason too.
In order to find a shortfall, as I said, you need to process the Horizon data, go into
the Post Office systems, compare it with other data it is getting from its 100 third
party contractors, analyse it and decide whether there is a shortfall and why. For
all those reasons, the idea that this is relevant material to construe a contract ----
MR. JUSTICE FRASER: I think you accepted, as sensibly you have to, they are
prima facie Horizon-based issues.
MR. CAVENDER: Indeed.
MR. JUSTICE FRASER: I do not think there can be any objection in principle to
requests that deal with shortfalls because when we come to some of the later
ones the term shortfalls is either suggested or used in request that is agreed.
MR. CAVENDER: There is potential my Lord, this is the point. The question is,
will assist Horizon potentially, is there a defect or something wrong with it?
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MR. JUSTICE FRASER: I understand.
MR. CAVENDER: As opposed to saying this is a shortfall because that is an
accounting matter. You can say this system, there is a problem with it, there is an
issue, there is a bug or whatever, which, as we saw in the examples, potentially
could cause a shortfall.
MR. JUSTICE FRASER: Is it the lack of the word potential that you think is
necessary when shortfalls are referred to?
MR. CAVENDER: My Lord, yes.
MR. JUSTICE FRASER: All right.
MR. CAVENDER: Unless you are going to decide breach which is another
question ----
MR. JUSTICE FRASER: No, I understand that. Thank you very much, is there
anything you would like to add in?
MR. CAVENDER: No, my Lord.
MR. JUSTICE FRASER: I am making it clear that I am going to order parts of this
request, notwithstanding that they seem to me fundamentally to be Horizon Issues but I
have changed the wording. I am going to read it out as Request h all right. Written policy
and process documents is fine, guidance notes or memoranda has to be deleted, relating
to and then I am going to order category (i) -- but it needs to say potential shortfalls, not
shortfalls -- (ii) and (vii). That order is made without in any way accepting that any of the
contents of these documents are going to be relevant to construction of the contract but it
seems to me they are documents which would be sensible and proportionate to order
now."°!
86.1 And limited request (j):
"MR. GREEN: I am grateful. In relation to j, j is number 29.
MR. JUSTICE FRASER: Yes, we have not dealt with j yet.
MR. GREEN: We have not dealt with j. You will see in my learned friend's table
he says a narrower formulation of this request can be found at 25, 26 and 27.
Although these documents may still be inadmissible the defendant is prepared to
disclose them as part of stage 2 disclosure because they are narrowly defined.
He is talking about 25, 26 and 27.
®' C8.4/4/40
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Claim No:
If your Lordship goes on his table, over the page to 25, 26 and 27 I am afraid it is
the one side of the fence point again. He says a narrower formulation because
what he is offering to disclose at 25, 26 and 27 is only what Post Office said to
Postmasters, not the internal documents relating to their approach. It is
completely one sided, my Lord. It is a short point.
MR. JUSTICE FRASER: Yes. Mr. Cavender?
MR. CAVENDER: My Lord, this is lifted, I can give you the reference, Model D.
This has literally been lifted and you can tell why, because it is so wide it has no
relevance at all to the construction of the contract. Why the minutes of a meeting
as to breach, that is what this is about, and difficulties with operating the contract
is operational, why because a contract may or may not be difficult to operate by
Post Office and its knowledge of that, affect the construction of that contract at an
earlier stage? It is totally irrelevant. There is no case on rectification. There is no
case here on variation by conduct. It is a straightforward issue of construction.
The idea of over the twenty-odd year period, slightly less, all minutes of meetings,
memoranda relating et cetera, I keep pinching myself, we are talking about Model
C request of narrow classes of documents, is what the things says. This is a
million miles from that.
MR. JUSTICE FRASER: Yes.
MR. CAVENDER: My Lord, you know, you talked about proportionality earlier and
the costs et cetera, this is the classic example where this stuff would not be
helpful and would be enormously difficult to find, to calculate, to then review and
disclose for no purpose at this stage.
MR. JUSTICE FRASER: I agree, save for one narrowing of it. Minutes of meetings, you
are not going to have; memoranda you are not going to have; reports you are not going
to have but, and I am taking this from an agreed category earlier up the list, reports to
Post Office's board of directors between (date range) relating to Post Office network wide
approach et cetera. That is a specific narrow category of document. Mr. Cavender has a
degree of law behind him when he talks about admissibility of the construction of the
contract. It is, however, a highly relevant category of document and I am going to order it
now. It is only reports to the Post Office board."°”
87. Disclosure in relation to the helpline was not ordered: "MR. JUSTICE FRASER:
You do not need to. This relates to paragraph 61 of the defence which does not
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Claim No:
arise in the Common Issues at all so I am not going to give disclosure of
category."
Fraser J continued:
"MR. JUSTICE FRASER: Not that I need to explain in any great detail because
we have spent two hours on disclosure, the instructions that I have given to the
Postmaster in terms of dealing with and disputing a shortfall within category m
because that comes from the training. What in fact then happened, if any of the
claimants phone the help line, goes to breach, does it not?
MR. GREEN: My Lord, we are not asking for what happened, we are just asking -
MR. JUSTICE FRASER: Okay, how those calls ----
MR. GREEN: ---- what should have happened.
MR. JUSTICE FRASER: Either what happened or what should have happened is
not relevant to construing the Common Issues.
MR. GREEN: It is probably me, my Lord.
MR. JUSTICE FRASER: I think it is you.
MR. GREEN: But it may not be so I am going to make the submission and you
can tell me if it is me. If we order category n, category n is network wide
instructions to Post Office trainers and how to train a Postmaster to deal with a
shortfall. So that is what they are told, generally this is what you should do. Then
the corollary of that ----
MR. JUSTICE FRASER: Why do you think that is relevant to Common Issues?
MR. GREEN: Your Lordship has just ordered it.
MR. JUSTICE FRASER: (a) because I have ordered it and (b) because it is
common knowledge because the Post Office know what the trainers are
supposed to do and because, in theory, that is what the Subpostmasters or
branch post officers are told. So, it is common knowledge. It is therefore directly
relevant to construing the contract.
MR. GREEN. That is the second half of 46.
MR. JUSTICE FRASER: No, incorrect. That is what actually happens in fact if
there is a shortfall. It goes to breach.
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MR. GREEN: My Lord, the existence for an apparent shortfall is not anything to
did with breach necessarily. My learned friend seeks to conflate before your
Lordship two different points with respect and that was his submission to your
Lordship which led to this. If I have it wrong I apologise.
MR. JUSTICE FRASER: Right, Mr. Green, you can argue for as long as you like. This
arises from paragraph 61 of the defence which does not arise at all on the Common
Issues, I have now said that three times, please do not waste any more time about it. I
am not ordering it."**
89. In summary, the outcomes from the CMC Hearing were set out in Post Office's
Skeleton argument for the strike-out application as being: ®°
89.1 "The Court refused a number of disclosure requests from Cs that were, in
essence, aimed at proof of post-contractual facts. For the purposes of the
Common Issues trial, the Court refrained from ordering any disclosure as to
the causes of shortfalls, problems with Horizon or any other fact-specific
issues as to post-contractual events.
89.2 The Court made clear that many of the matters that Cs wanted to
investigate through disclosure were properly matters for the Horizon Trial.
89.3 Cs’ disclosure requests were founded on Post Office’s pleaded case in
paras 76 and 93 of its GDXC. However, Post Office explained that its pleas
in those paras were not intended to encompass any post-contractual facts
but were conventional averments as to the background to the agreements,
including notably the shared anticipation that Subpostmasters (whether
themselves or by assistants) would actually be present in the branch, would
have possession of Post Office’s cash and stock and would have conduct
of the transactions effected in their branches. Post Office’s explained that
its factual case was limited to matters that were known or anticipated by
the parties at the time of contracting"
SECTION 4: COMMON ISSUES TRIAL JUDGMENT
90.
issue with, which should cover:
90.1 Witnesses - Criticisms of POL's witnesses which is going to have an
4 C8.4/4/47 - 48
5 C8.10/2/6
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90.2
90.3 PGQC XX - Examples where he has not stopped PGQC with out of scope
90.4 Disclosure - Examples where narrow disclosure and then made findings
STATEMENT OF TRUTH
I believe that the facts stated in this witness statement are true.
Signed:
Date:
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Filed on behalf of the: Defendant
Witness:
Statement No.: First
Date Made: 16 March 2019
Claim Nos: HQ16X01238, HQ17X02637 &
HQ17X04248
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF
ENGLAND AND WALES
BETWEEN:
POST OFFICE LIMITED
Defendant
AND
ALAN BATES AND OTHERS
Claimant
[X] WITNESS STATEMENT OF [X]
WOMBLE
BOND
DICKINSON
Womble Bond Dickinson (UK) LLP
‘Oceana House
39-49 Commercial Road
Southampton
S015 1GA
Faxi_,
DX: 38517 Southampion 3
(Our Ref: AP6/ALP1/364065.1369
Solicitors for the Defendant