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For Hearing 8" December 2022
IN THE MATTER OF A PUBLIC INQUIRY
THE POST OFFICE HORIZON IT INQUIRY
(1) TRACY FELSTEAD
(2) SEEMA MISRA
(3) JANET SKINNER
(4) LEE CASTLETON
(5) NICHOLA ARCH
(6) VAY PAREKH
(7) SATHYAN SHU
SUMBMISSIONS ON COMPENSATION
Thursday 1° December 2022
DELAY.
2
UNSATISFACTORY FEATURES OF THE EXISTING COMPENSATION SCHEME THAT IS BEING ADMINISTERED BY
HERBERT SMITH FREEHILLS LLP FOR THE POST OFFICE...
ASYMMETRY IN AVAILABLE INFORMATION IN PREPARING CLAIMS FOR GENERAL DAMAGES ~ PRESERVED CLAIMS FOR MALICIOUS
PROSECUTION...
‘THE INTENTIONAL DENIAL OF INFORMATION/MATERIAL TO WHICH CONVICTED DEFENDANTS WERE ENTITLED IN LAW
THE SERIOUSLY SKEWED CARTWRIGHT KING LLP “SIFT REVIEW” OF 2013-2014 — PREVENTING APPEALS ...
THE HISTORICAL SHORTFALL SCHEME. THE CIRCUMSTANCES OF MR SATHYAN SHIJU.
DERISORY SUM OFFERED UNDER THE HSS SCHEME ......-ssesssessstecsscessseestsseeesnccssrecseecnueecnsecaneesecaecsensesanseaneesanees sseeeee LT
Post OFFICE REPAYMENT OF 68% OF THE ALLEGED “SHORTFALL” FOR WHICH MR SHU LOST HIS POST OFFICE BRANCH, HIS
BUSINESS AND HIS REPUTATION ...
REQUIRED INDEPENDENCE OF THE HSS SCHEME — APPEARANCE OF BIAS?...
A LEOPARD DOES NOT CHANGE ITS SPOTS— MR VIJAY PAREKH AND THE POST OFFICE’S FAILURE TO GIVE
RESTITUTION .....
FAILURE TO REPAY MONEY PAID OVER TO THE POST OFFICE — FAILURE TO GIVE RESTITUTION ...
MR CASTLETON’S EXPERIENCE — INTERIM PAYMENT BY BEIS.....
It is difficult to conceive of a more egregious abuse of prosecutorial power than,
in pursuit of a commercial objective, wrongfully to prosecute an innocent person
and cause them, on incomplete and misleading evidence, to be convicted and
imprisoned for a criminal offence that they did not commit. That thereafter they
be intentionally disabled from appealing their conviction by the further
withholding by their prosecutor of disclosable material, in pursuit of commercial
advantage, is to strain credulity.
Thes
submissions are made on behalf of Tracy Felstead, Janet Skinner, Seema
Misra, Lee Castleton and Nichola Arch, Core Participants in this Inquiry, and on
behalf of Vi
jay Parekh and Sathyan Shiju, both of whom have applied to the Inquiry
to be permitted to become Core Participants.
Delay
It has recently been explained that the BEIS compensation scheme, for those who
were claimants in the GLO litigation, is not likely to be fully established and operating
to accept claims before spring of 2023. It is understood that BETS has limited
capacity to establish and operate the scheme, albeit it is not envisaged as being li
to be an overly formal proc
The delay in establishing and operating the BEIS scheme stands in marked contrast
with the scheme for preserved claims for malicious prosecution, that is being operated
by Herbert Smith Freehills LLP on behalf of the Post Office (though as noted below,
that scheme is not without some difficulties). The Post Office/HSF scheme, that of
course is in the nature of a negotiation of the settlement of a legal claim, is actively
receiving claims and paying-out compensation, notably in connection with claims for
general damages.
It is unsatisfactory that the BEIS scheme is taking so long to establish. The Post
Office’s conduct is the subject of claims for “further compensation” from the
government (BETIS) that are as long-standing as other claims (e.g. those in the Post
Office scheme for preserved malicious prosecution claims). Mrs Nichola Arch, for
example, was prosecuted, but fortuitously acquitted of the charges against her, in
2002. The y
ars leading up to her prosecution, carrying with them the loss of her
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business, her good name (despite her acquittal) and her aspirations, and the trauma of
her prosecution, have devastated her life and destroyed her livelihood. She suffers
from long-term chronic depressive illness as a result of her experience. Under the
original 2019 settlement of the GLO litigation, she received £8,500 compensation.
She recently received somewhat less than £19,000 from BEIS by way of an interim
payment on account. That is wholly inadequate to her circumstances and experience,
distr
ing evidence of the extraordinary strain and stress of which she has given in this
Inquiry. That evidence included that she and he partner were driven to actively
contemplating jointly committing suicide, confronted as they were by Mrs Arch’s ruin
at the Post Office’s hands and her being ostracised, and vilified, like so many others,
in her community. She has now been waiting for 20 years to be properly
compensated. That in itself is the very antithesis of justice and is its denial, for which
the (government-owned) Post Office is responsible.
3} It is anomalous that the Post Office is processing claims through HSF, amply-
resourced (as in the GLO litigation) and without, as would appear, substantial
constraints, but BEIS, whose remit is similarly to distribute and pay over tax-payer
funds to claimants, is under-resourced for the task to which it is appointed, after all, by
government. When the question was raised recently as to why this should be so, no
answer was available. It is fair to observe that it is becoming increasingly clear in this
Inquiry that the government itself is also responsible, if indirectly, for the calamity that
from 1999 was visited upon postmasters and its employees by the Post Office - an
's “partner” in
institution that the government is less now enthusiastic to describe as
delivering services (through UKGI) than formerly it was.
Unsatisfactory features of the existing compensation scheme that is
being administered by Herbert Smith Freehills LLP for the Post Office.
6. Progress has undoubtedly been made in connection with preserved claims for
malicious prosecution under the Post Office scheme administered by Herbert Smith
Freehills. There has recently been an encouraging flurry of activity and
communication.
It is important for it to be borne in mind, given what follows, that the HSF
compensation scheme for preserved malicious prosecution claims, is adversarial in
cha
cter, regardless of how constructive, and by intention cooperative, the scheme is
for the Post Offi
presented (by the Post Office/government) as being. HSF
its solicitors and necessarily in the Post Office’s interests. It is bound to do so by
reason of its retainer.
Asymmetry in available information in preparing claims for general damages —
preserved claims for malicious prosecution
8.
10.
Progress has been undoubtedly been made. A particularly important development
has been an ENE undertaken by Lord Dyson, the former judge, who has provided
(subject to provisos below) a useful written evaluation expressing his opinion on heads
of loss for general damages. There are two problems that ari
t, the ENE undertaken by Dyson was upon joint instructions from Hudgells
Solicitors and the Post Office, and is the evaluation of sample representative claims
provided by Hudgells. While no doubt expedient, it has had an unfortunate
consequence. Dyson’s report has been made available to claimants for compensation
iRestricted!
This h:
important consequences, self-evidently, in creating an asymmetry/disparity in
available information between classes of claimants. That is ex facie unfair and there is
no answer to it. Restricted
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12.
addressed and either justified or resolved.
The writer observed in an email to HSF, dated 30 September 2022:
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Restricted
HSF have explained that, while the Post Office is willing to disclose more of Dyson’s
analysis, Hudgells Solicitors is not.
The consequence is asymmetry/disparity in information available between classes of
claimants, viz those represented by Hudgells, who have received the (valuable) benefit
of an ENE from a former judge, and those who have not. That is unfair. Itis not
known how this can be justified and it adds friction in advancing claims that already
have had almost every conceivable obstacle placed in their path. (It is presumed that
the Post Office, rather than Hudgells’ clients, paid for the ENE.)
15.
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There was even an oral hearing on the ENE between Hudgells Solicitors’ clients and
the Post Office, that took place on 18 July 2022. Only Hudgells’ clients and the Post
Office were represented on that hearing. That might be thought unsatisfactory, where
the overriding requirement is that compensation paid be administered indifferently.
‘There appears to be a preferential class. That is both unfair and objectionable.
The intentional denial of information/material to which convicted defendants were
entitled in law
16.
19.
: Restricted
not developed, but it is nonethel
outline/is schematic.
It is trite that the gist of the tort in malicious prosecution is the impropriety of the
motive. The injury compensated by recognition given in law to the tort, when
established, is that caused by the proceedings - hence, for example, the head of loss
for deprivation of liberty - though this is not a necessary ingredient of the tort. The
gist of the tort is malice, not damage (and it is not nece:
ry, for example, for the
‘prosecution’ (civil (Willers v Joyce [2016] UKSC 43) or criminal,) to be successful).
But there is another important right to which the tort of malicious prosecution gives.
no effect in damages, and that is a right guaranteed by the state, the violation of which
is a salient, it might be said the defining feature of the Post Office scandal. Shortly
stated, it is this - a convicted defendant has a right, recognised and guaranteed by
statute, to the hearing of an appeal within a reasonable time. That is part of the
Article 6(1) right under the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR). Importantly, violation of the right to a hearing
within a reasonable time is “irretrievable”: per Lord Rodger AG Refer
2001 [2003] UKHL 68 at [151].
ence No 2 of
The reason why the guarantee of a hearing within a reasonable time appears in Article
6(1) is because prejudice is presumed to arise if the guarantee is violated. In Stégmiiller
y Austria I EHRR 155, 191, para 5 the court said that the aim of article 6(1) is to protect
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all parties to proceedings against excessive procedural delays, and that in criminal
proceedings especially it is designed “to avoid that a person charged should remain too
long in a_state_of uncertainty about his fate”: Dyer [78] Lord Hope. Underlining
supplied. The Inquiry is invited to accept that continuing uncertainty causes stress and
anxiety.
20. The relevant period of time period begins when the person is charged and ends at
acquittal or conviction, even if this decision is reached on appeal: Wembhoff vy Germany
(A/7) [1976] 6 WLUK 71 and Eckle v Federal Republic of Germany [1982] 5 EHRR
Watson [2004] 1 AC 379 [76], [90].
1, applied D:
21. It almost does not require stating that the 19 years for Tracy Felstead’s appeal against
her conviction to be heard and the 14 years for Janet Skinner’s appeal against
conviction to be heard was an inordinate and unreasonable time. Their Article 6 rights
were incontestably violated by the delay. No one can suggest otherwise.
Where the delay to the hearing of an appeal is unreasonable, it is for the state to come
forward with explanations: Dyer [52] per Lord Bingham, [76] per Lord Hope. The
Court of Appeal was singularly uninterested in this important circumstance - and
requirement - in its judgment in Hamilton v Post Office Ltd [2021] EWHC 577. No
formal explanation has ever been provided. That might be thought unsatisfactory
given the effluxion of time, in many instances, between a person having been charged
and the April 2021 appeals. (In Tracy Felstead’s case, 20 years.)
Throughout the period of the subsistence of their convictions, Tracy Felstead’s and
Janet Skinner’s lives (and, of course, the lives of others with similar experience) were
blighted by their convictions, that affected every aspect of their lives in ways that
plainly went beyond pecuniary loss (though inevitably including this). The burden for
Tracy Felstead of waking up every day for almost 20 years as a convicted thief, having
been wrongfully convicted on incomplete and misleading evidence from the Post
Office and imprisoned for an offence she did not commit, is plainly almost
unimaginable and is unbearable to contemplate. It might be salutary for the many
lawyers in these proceedings perhaps to reflect on that. That it was the result of the
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intentional concealment by the Post Office and those who advised it of known flaws in
the Horizon system, is grotesque.
24. The Post Office acted intentionally in a way calculated to deprive defendants of their
right to appeal. More particularly, it did so with the same improper motive that lay
behind the original prosecution, namely the commercial imperative to protect
Horizon.
25. It is of course right that the UK has not provided a remedy in damages for breach of
the Article 6 right simpliciter, unlike, say, the Federal Republic of Germany. But that
is not a reason why the law should not recognise and provide relief for the deliberate
violation and denial by a prosecuting authority of the substantive right to an appeal
within a reasonable time, where the violation is for an improper purpose. It would be
wholly consistent with principle and authority for the law to do so.
26. For present purposes, it may be taken as a working hypothesis that the shame and
trauma of remaining a person convicted of a criminal offence, of which one is
innocent, is distinct and separate from the injury caused by the prosecution itself,
where the means and material for appealing that conviction were at all material times
in the possession of the prosecuting authority but intentionally withheld/suppressed by
it.
27. Ttis perhaps unsurprising that this combination of features and circumstances is not
considered in the books or in the authorities. So far as is known, the Post Office’s
conduct was unprecedented, qua its status as a prosecuting authority. It may well be
that it will not arise again and may thus remain sui generis. Rarely will a prosecuting
authority have a direct commercial interest in inhibiting and frustrating the prospect of
a successful appeal by a convicted defendant. The Post Office had such an interest
and actively pursued it. That interest was its commercial interest and purpose of
protecting Horizon against effective challenge and its known unreliability from being
exposed.
28. The commercial risk to the Post Office, both in its prosecutions and in any successful
appeal, was that, if Horizon itself and bugs in it was identified as the cause of
unexplained “shortfalls”, its entire business model was at risk, for it would be/become
apparent that the Post Office was unable to distinguish between system error/bugs and
fraud. That in fact was the reality and the truth of the position as the Post Office knew
it to be, or should be taken to have known it to be, from 2013 at the latest and almost
certainly long before that. It was an issue of existential importance - impliedly
recognised by leading counsel for the Post Office at the outset of the Common Issues
trial before Fraser J in 2019.
The seriously skewed Cartwright King LLP “sift review” of 2013-2014 — preventing
appeals
29.
30.
31.
Part of the Post Office’s scheme to protect against successful appeals against criminal
convictions, secured by the Post Office on its ‘Horizon’ prosecutions, was the flawed
and seriously skewed Cartwright King LLP “sift review” of 2013-2014.
The Inquiry will in due course require to consider the circumstances of the
extraordinary “review” by the solicitors firm Cartwright King LLP of hundreds of Post
Office prosecutions that took as its start date I January 2010. The review was first
revealed by the Post Office on 30 November 2020, shortly after the first Court of
Appeal directions hearing on the first tranche of 42 appeals referred by the CCRC.
That review, it was then explained, was prompted by the July 2018 (first) “Clarke
Advice”.
The CCRC appear to have been unaware of the Cartwright King sift review. There
appears to be no reference to the firm or the review by the CCRC in its 2020
“Statement of Reasons” (s. 9 reference). The fact of the review might be thought to
have been a relevant consideration for the CCRC - though its fact would have
revealed its occasion, viz the July 2013 “Clarke Advice” (and the cat, as it were, would
have been out of the bag).
Though stated to have been an independent review, Cartwright King had frequently
acted as prosecuting agents for the Post Office in its prosecutions. The review it
conducted was, accordingly, not independent. (It is understood that Second Sight had
been insisting, from about 2013, upon a properly independent review of Post Office
prosecutions. That did not, obviously, happen.)
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It is now known (revealed in 2022 by the Post Office in response to a FOI request)
that the terms of the Cartwright King review from 2018 were provided to Cartwright
King by Mr Brian Altman Q.C., the Post Office’s lead counsel on the appeals referred
by the CCRC in 2021. Mr Altman had considered the July 2013 Clarke Advice, and
advised the Post Office both as to its reasoning and conclusions. Further, he had
provided advice, under a “General Review” of October 20138, in connection with the
Post Office’s disclosure obligations owed to convicted defendants. Convicted
defendants did not receive disclosure of material to which by law they were entitled.
Mr Simon Clarke of Cartwright King reviewed Mrs Misra’s prosecution, as part of the
Cartwright King sift review in January 2014. His review was both remarkable and
a. In his written opinion he noted that the review was unusual in that, in
undertaking it, he was not provided with the prosecution file, only the
transcripts of the trial. Mr Clarke observed this to be an unusual
circumstance. Accordingly, he did not have sight of, for example, Mr
Jenkins’s witness statements in which Mr Jenkins, among other things, stated
that remote access was not possible without Horizon branch operator
knowledge. Shortly beforehand, Second Sight in 2013 had provided its
Interim Report stating that there was a clear conflict of evidence on the issue
of ‘remote access’ - a facility that the Post Office went to strenuous lengths.
and great expense (per Fraser J), until just before the Horizon Issues trial in
2019, to falsely deny.
b. Mr Clarke would have read that Mrs Misra’s trial was the first trial in which
Mr Jenkins had given live oral evidence. That is because Mr Jenkins said so.
Mrs Misra’s trial was accordingly of particular importance - especially set
against Mr Clarke’s July 2013 Advice and his evaluation of Mr Jenkins as a
prosecution witness. It appears that, in all other cases in which Mr Jenkins
that
gave evidence, his evidence was unchallenged, presumably on the basi:
there was no basis for doing so.
d.
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Although Mr Clarke had concluded, in July 2013, that Mr Jenkins was a
wholly unreliable witness who had put the Post Office in breach of its duty to
the court as prosecutor, in every one of the 5 cases that he had then
reviewed, and, further, he had advised that Mr Jenkins was a witness the Post
Office should not use again, Mr Clarke, for reasons that remain opaque, did
not consider that those circumstances might have any bearing on the
reliability/truthfulness of evidence given by Mr Jenkins at Mrs Misr
otherwise engage with the possible safety of her conviction. Mr Cl:
not address the question (or seemingly turn his mind to) why Mr Jenkins
gave serially incomplete evidence of his knowledge of Horizon bugs, in
particular, given Mr Jenkins was an “architect” of Horizon and employed by
Fujitsu, and thus was not (was anything but) an independent expert witness.
He concentrated heavily on the limited questions that he had been instructed
to consider: disclosure of the Second Sight Interim report and the Helen
Rose report.
The principal questions that Mr Clarke was required to consider under the
review he was required to undertake of Mrs Misra’s prosecution was whether
(1) the Second Sight Interim Report of 2013 and (2) the ‘Helen Rose report’
of 2013 should be disclosed to Mrs Misra. (Those issues are peculiar - and
arguably simply wrong for their purpose, given the Post Office’s and Mr
Jenkins’s knowledge of Horizon bugs and his known unreliability as a
witness.) Mr Clarke concluded and advised the Post Office that those reports
should not be disclosed to Mrs Misra. The Second Sight Interim Report
raised, inter alia, the issue of the fundamentally important Receipts and
Payments mismatch bug, the most important of the bugs considered by Mr
Justice Fraser in 2019. (The known effects of the Receipts and Payments
mismatch bug as recorded in the September memorandum undermined and
contradicted the way the prosecution case was put at Mrs Misra’s trial. The
memorandum was not disclosed either in 2010 nor in the Cartwright King
2014 review.)
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e. In advising on the non-disclosure of the Second Sight Report and the Helen
Rose report, Mr Clarke in 2014 expressly relied upon the advice as to the
Post Office’s disclosure obligations that had been given by Mr Brian Altman
Q.C. in his October 2013 “General Review”.
35. As noted, the supervisory role of Mr Altman Q.C. in connection with the Cartwright
King sift review was very recently revealed by disclosure of the advice given by Mr
Jonathan Swift Q.C. (as he then was) to Tim Parker, chair of the Post Office in 2016.
That advice was not shared by Mr Parker with the Post Office board, on advice, it
seems, from the Post Office’s General Counsel as a result of a failure to understand
the law of legal privilege.
36. It is unexceptionable that failing to ask the right questions will typically not elicit
purposeful answers of utility.
37. The Cartwright King review, by failing to address the correct questions, unsurprisingly
seems not to have given rise to a single appeal, successful or otherwise. That will not
have been a disappointing outcome of the review for the Post Office.
38. Itis submitted that the outcome was intentional and engineered by the framework for
review provided to Cartwright King. Otherwise, it is almost impossible to understa
how Mr Clarke can have arrived at the conclusion that his and the Post Offi
knowledge of Mr Jenkins as a witness, and his knowledge of bugs in Horizon and their
effects, had no possible bearing on the safety of Mrs Misra’s conviction - that being, it
is submitted, the dominant purpose of any review of a prosecution by a prosecuting
authority. It is almost bizarre, when the occasion for the Cartwright King review was
the July 2013 Clarke Advice.
39. The contrast between the complete failure of the Cartwright King 2013-2014 review,
of hundreds of Post Office criminal prosecutions, to generate a single appeal
(regardless of suce
:) with the extraordinary outcome of the Court of Appeal hearing
in March 2021 (98% of the appeals were successful) is so striking that it is difficult to
avoid the inference that the Cartwright King review of prosecutions was intended to
13
40.
Al.
42.
43,
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fail to throw up - ie. to preclude - an appeal. The wrong issues were self-evidently
considered under the review.
In 2020 the Post Office by its counsel accepted that the Clarke Advice of July 2013
was disclosed (November 2020) pursuant to the duty of disclosure at common law
identified by the Supreme Court as explained by Lord Hughes in R (on the
application of Nunn) v Chief Constable of Suffolk [205] AC 225, [2014] UKSC 37. It
follows that material in the advice was material disclosable to convicted defendants as
of right, not subject to conditions that the Post Office qua prosecutor might choose to
impose in giving its disclosure.
Though perhaps for argument, it is submitted that the injury and harm caused by a
prosecutor for an improper purpose intentionally denying to a convicted defendant
disclosable material reasonably necessary to challenge the safety of a conviction, that
results in the violation of the guaranteed Article 6 right to hearing of an appeal within
a reasonable time, is a separate wrong from the wrong done by malicious prosecution.
That much may perhaps be obvious.
It may be said that the damage, occasioned by a conviction subsisting when properly it
could have been appealed, but for the wrong, overlaps with damage caused by
e. But both conceptually and
wrongful prosecution. That may indeed be the c:
causatively the damage is different. After 2013 Mrs Misra’s life and that of her family
was blighted by the Post Office withholding inter alia information in the 2013 Clarke
Advice. Any reasonable lawyer properly directing themselves as to the law would have
recognised the possible implications for the safety of Mrs Misra’s conviction of
material in the Clarke Advice. Mr Altman Q.C. rightly conceded in March 2021 that
her prosecution represented the high point of Post Office prosecutions. Subsequent to
its receipt of the October 2013 “General Review”, the Post Office largely ceased
prosecuting for Horizon shortfalls from 2014, as explained by Mrs Paul Vennells in
June 2020 to Mr Darren Jones M.P. as Chair of the BEIS Select Committee.
It is submitted that damages for the malicious violation of the Article 6 right to an
appeal within a reasonable time is an intentional tort for which damages should be
recoverable.
44,
45.
46.
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Further, it is a head of claim that properly should support aggravated (subject to the
requirement that other damages are insufficient to compensate) and, in particular,
exemplary damages, independent of those heads being available in respect of
malicious prosecution. As noted, it is a singular circumstance because prosecuting
authorities rarely have direct commercial interests in the outcome of an appeal.
Similarly there is an obvious interest in the court marking the abuse of state power
inherent in the denial by a prosecuting authority of a convicted person’s right to
appeal. Doing so exhibits a mendacity and abuse of power of a high order.
The Post Office’s wilful obstruction of scrutiny, and its campaign to prevent its abuse
of power being revealed, is a profoundly aggravating circumstance, because of the
extraordinary and inordinate delay thereby caused - such that the Post Office almost
“got away with it’.
Those who were acquitted, but destroyed, financially, reputationally, mentally and
physically in the process, could not begin to see any prospect of redress until former
postmasters such as Seema Misra and Janet Skinner were brought together by the
industry and effort of Alan Bates to launch the GLO litigation. It must have seemed a
remote and unwelcome contingency for the Post Office and those advising it, given
the procedural hurdles that the civil law places in the path of those wishing to bring
group claims. The Post Office, it will be recalled, opposed the bringing of a group
claim. Chief Master Fontaine permitted a GLO in the face of the Post Office’s.
objections.
The Historical Shortfall scheme. The circumstances of Mr Sathyan
Shiju
47.
The circumstances of Mr Sathyan Shiju are troubling, both in absolute terms and also
because of what they reveal about problems with the HSS scheme established by the
Post Office pursuant to the terms of the 2019 settlement of the GLO litigation. The
HS
cheme is for those Post Office victims: (1) not convicted of offences and (2) not
having been party to the GLO litigation.
48.
49.
50.
52.
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For the wider implication, it is necessary to outline Mr Shiju’s circumstances. Mr
Shiju, from 2001, was postmaster of a branch post office at 54 The Broadway,
Tolworth, Surbiton, Surrey KT6 7HR. He had another business, a grocery store, very
close by. He was in his own view successful, comfortably-off, and owned two cars. He
was entrepreneurial and owned two properties in Croydon.
Following a branch audit in 2006, Mr Shiju was told that there was a Horizon shortfall
of £20,287.66. Mr Shiju sa
that he was told that he had to repay the money
immediately. He was interviewed under caution at length by post office investigators in
Croydon. He says that he was told that, in the absence of immediate repayment by
him of the alleged shortfall, he would be prosecuted and would be imprisoned. In a
state of panic and distress he wrote a cheque the same day for £15,000. He had no
funds to pay but raised funds from his family and friends. He has explained that he
wrote a further cheque for the balance of £5,287.66 on 23 June 2006.
Mr Shiju says he was immediately suspended by the Post Office from his branch and
was subsequently dismissed as postmaster. His contract with the Post Office was
summarily terminated in early September 2006.
Not long after payment to the Post Office was made by him, Mr Shiju says that he was
repaid by the Post Office the sum of £13,910.40. It was explained that the Post Office
had found some of the money that was said to be missing in the alleged shortfall. Mr
Shiju says that he had a meeting with his area manager, Ms Elaine Ridge, and another
lady whom he only remembers as ‘Angela’. They told him that, despite what had
happened, he would not be reinstated at his branch.
The loss of his Post Office business and the allegations made against Mr Shiju have
had a devas
ating and long-term impact upon Mr Shiju and his family. He says that in
his locality and community his reputation was utterly destroyed. His retail business
collapsed as did his grocery store. He lost the whole of investment (some £60,000) in
his Post Office business. Unable to maintain mortgage payments, Mr Shiju’s
properties were re-possessed. He says that he became acutely depressed and suicidal.
He attempted to kill himself. His wife and daughter removed him for his safety to his
family in India, where he was cared for.
16
56.
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Mr Shiju says that his wife’s extended family believed that he must have been taking
money - because it was the Post Office that suspended him, a reputable national
institution. Mr Shiju has had no contact with his wife’s side of the family since
returning to the UK from India in 2015. The family relationship has been wholly
sundered by his experience. When his daughter was married, his wife’s family did not
attend the wedding. The impact of this upon him and upon his family is profound
and distressing.
Mr Shiju’s daughter was an exemplary student at her school. She was in the lower
sixth having achieved a large number of A* GCSEs. She was expecting to go to
university. She withdrew from education in the UK to support and care for her father
in India. She never returned to full-time education with the consequent curtailment of
her educational aspirations and professional ambitions.
In July 2020, upon his application, Mr Shiju was accepted into the HSS compensation
scheme.
In October 2020 Mr Shiju received £10,000 from the Post Office by way of interim
payment.
The HSS scheme on several occasions wrote to Mr Shiju assuring him that, if further
information about his claim for compensation was necessarv/required for his claim to
be processed, he would be asked for it.
Derisory sum offered under the HSS scheme
58.
59.
In February 2022 Mr Shiju was offered a sum slightly in excess of £2,000 in full and
final settlement of all his claims under the HSS compensation scheme. He rejected
the offer.
The offer was been explained to have been made on the basis that Mr Shiju had
provided insufficient evidence of his losses. That explanation is at odds, if not a
statement of the obvious, with the statement from the scheme that if more evidence
was necessary in processing his claim he would be asked for it.
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60. Mr Shiju was fortunate in having engaged the interest and support of his constituency
Member of Parliament, Wes Streeting M.P..
61. Towards the end of May 2022, Mr Shiju attended a “Good Faith Meeting” with the
Post Office and its solicitors, Herbert Smith Freehills. Mr Streeting’s office manager
attended in his place. The meeting was chaired by a barrister employed by HSF.
62. In September 2022 Mr Shiju came to see the writer in conference, accompanied by
his daughter. It is the first time that he had consulted a lawyer about his
circumstances.
On the information and instructions provided by Mr Shiju, his claims are extensive,
substantial and complex. (They are likely to be incapable of being evaluated without
expert accounting, valuation and medical assistance.) The same is apparent from even
the most cursc
'y acquaintance with Mr Shiju and his circumstances, as he recounts
these. The disparity between what is apparent from his outline of his circumstances,
and the derisory offer made a year and-a-half after his acceptance into the HSS
scheme, should be a matter of concern.
Post Office repayment of 68% of the alleged “shortfall” for which Mr Shiju lost his Post
Office branch, his business and his reputation
64, Of likely interest to this Inquiry is the fact that, of the original alleged £20,287.66
shortfall - that triggered Mr Shiju’s suspension from his Post Office branch, and
caused the collapse of his business, the loss of his reputation in his community, the
destruction of his family relationships, his consequent attempted suicide and his
subsequent mental illness - .£13,910.40 was said to have been “found” by the Post
Office quite soon after his suspension. Short of being a quantity of cash (not
suggested) the inescapable inference is that the original alleged shortfall was found to
have been wrong. Itwas wrong by 68.6%.
65. There are plainly important questions raised as to what the Post Office did with that
information and what it suggested about apparent Horizon “shortfalls” and the degree
of confidence/assurance that the Post Office could place upon “shortfalls” identified
66.
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on branch “audits”- that typically provided the platform for long hostile interrogation
and threats by the Post Office and its investigators against postmasters.
ision of BA!
In that regard, Detica Net Reveal, a consulting di ystems, was later in
October 2013, after a lengthy and exhaustive review of Post Office systems (that it is
unclear was disclosed in the GLO litigation - though there is passing reference to the
expense of Detica in the Horizon Issues judgment) concluded that the Post Office had
the greatest difficulty in reconciling data from disparate sources. Detica expressed its
estimation “not fit for
view that Post Office systems (note - not Horizon) were in its
purpose” in modern retail environment. Had that report been disclosed in the GLO.
litigation it is extraordinary that the claimants’ diligent and able lawyers overlooked the
contents of what was a substantial (and expensive) report - that must have been
considered at board level within the Post Office. It will be seen that the Detica report
was more or less contemporaneous with the Post Office’s change in its prosecution
strategy from 2014.
Required independence of the HSS scheme — Appearance of Bias?
67.
68.
69.
Perhaps more importantly, the exiguous nature of the offer made to Mr Shiju in the
HSS scheme raises a serious question over the independence, and the perceived
independence, of Herbert Smith Freehills in its role in overseeing the HSS scheme.
It is submitted that, subject only to the issue as to whether it has any evaluative role in
the a ment of compensation in which it exe tion, HSF is unable to
es a dis
ion capable of being exercised by
escape the appearance of bias. (If there is no dis
HSF, it is unlikely the issue can arise.)
The foregoing circumstance engages with an issue of legal principle. In the HSS
compensation scheme, the manifest fundamental requirement is that the scheme be
administered, where there is any discretion to be exercised in making a decision, in a
way that is demonstrably independent and even-handed. The reason for this is that
independence and even-handedness are necessary to command the confidence of
participants in/applicants to the HSS scheme, and therefore public confidence.
19
72.
73.
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The test for apparent bias is that set out in Porter v. Magill [2002] 2 AC 357 at 494,
{102]-[103], which incorporates the approved modification to the R vy. Gough [1993]
AC 646 test adumbrated by Lord Phillips in In re Medicaments and Related Clas
of Goods (No. 2) [2001] 1 WLR 700. The question is whether a f
eS
fair-minded and
informed observer, having considered the facts, would conclude that there was real
possibility that the decision-making body was biased.
The question whether a fair-minded and informed observer would conclude that
there was a real possibility that the decision-making body was biased cannot be
answered without looking at the facts. The question whether a decision-making body
was biased, because it had pre-determined the issue (i.e. fettered its discretion), is
essentially a question of law to which there can only be one correct answer. To
answer the question incorrectly is an error of law, open to correction by an appellate
court: Gillies v. Secretary of State for Work & Pensions (Scotland) [2006] UKHL 2 at
(6}-171.
The fair-minded and informed observer is to be assumed to have access to all the facts
that are capable of being known by members of the public generally, bearing in mind
that itis the appe pillies v. § ry_of
State for Work & Pensions (Scotland) [2006] UKHL 2 at [17].
ace that these facts give rise to that matter:
The fair-minded and informed observer would of course know that Herbert Smith
Freehills:
a. Acted for the Post Office in its unsuccessful attempt to appeal the Common
Issues judgment of Mr Justice Fraser Bates and ors v Post Office Ltd No. 3
Common Issues) [2019] EWHC 606 QB (refused by Coulson LJ).
b. Acted for the Post Office in the settlement of the GLO litigation in
December 2019.
c Acted for the Post Office in successfully resisting an application for judicial
review of the HSS scheme: Sidhpura, R on the Application of v Post Office
Ltd (2021) EWHC 8665 Admin.
74,
75.
76.
77.
78.
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d. Now acts for the Post Office in (adversarial) settlement of the preserved
malicious prosecution claims.
e. Acts
in this Inquiry for Post Office witnesses.
Itis submitted that relevant facts, in the present circumstances, are the history and
nature of the legal proceedings in which the Post Office has engaged in defending
claims against it over time and the role of Herbert Smith Freehills in representing the
Post Office in defending those claims, seeking to appeal judgments against the Post
Office, and its vigour in settling the GLO claims, and thereafter in representing
employees and officers and former employees and officers of the Post Office who
may be vulnerable to criticism.
It is still not entirely clear when HSF was first instructed on behalf of the Post Office
in connection with the Bates GLO litigation. It is not known whether HSF performed
a ‘shadowing’ role prior to their formal engagement. This merits clarification. It is
not known, for example, whether HSF had any role in the recusal application made to
Fraser J: Bates and ors. v Post Office Ltd [2019] EWHC 871 QB. (Itis not thereby
suggested that it had - but HSF’s role for the Post Office increased over 2019.)
The requirement for observable independence, and the way independence may be
affected, is thus informed by and/or takes its measure from the foregoing
circumstances and, in particular, the vigour and robustness with which HSF
represented and now represents its client’s continuing interests and those of its
officers, former officers and employees and former employees.
It might be thought a curiosity, if not more than that, that HSF purports to exercise
scheme while
and independent oversight role in connection with the Hs
simultaneously performing a partisan and adversarial role in connection with the Post
Office preserved malicious prosecution claims and their settlement.
Mr Kevin Hollinrake M.P., formerly Chair of the APPG on Fair Business Banking,
now Minister Hollinrake M.P. of BEIS, On 22 June 2020 wrote to Mr Paul Scully
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M.P., then Minister for Small Business, Consumer and Labour Markets and Minister
for London. Mr Hollinrake wrote:
“The solicitors that the PO has brought in to deal with historic cases are
Herbert Smith Freehills, the same firm who were involved in the cover
up of the fraud at Lloyds HBOS and who also went on to advise on the
establishment and operation of the subsequent Lloyds Bank Customer
Review, the damning FCA commissioned review of which described it
as “discriminatory”, “flawed” and “an unacceptable denial of
responsibility”. The Post Office must review this decision and replace
them with a firm not connected to the previous legal action.”
79. On 13 July 2020 Paul Scully M.P., replied:
“Finally, with regards to Herbert Smith Freehills being brought in to
work on the Historical Shortfalls Scheme, it is for the Post Office to
decide on its legal advisors. POL decided to change its advisors to
Herbert Smith Freehills in the latter stages of the litigation and this has
resulted in the settlement, good progress on resolving outstanding
claimant issues and the successful launch of the Historical Shortfalls
Scheme.” (Underlining mine.)
80. Mr Scully’s response does not address the issue of (a) whether HSF is able to exercise
any discretion in connection with the administration of the HSS scheme and (b) if so
the requirement for observable independence. The points were square
y raised by Mr
Hollinrake M.P..
81. On 7 July 2020 Mr Hollinrake M.P. further expressed his profound misgivings about
the independence of HSS scheme in an email to Mr Darren Jones M.P., then as now,
Chair of the BETIS
lect Committee:
”... The Historic Shortfall compensation scheme, both in inception and
intended operation, shows all the signs of being a seriously flawed
scheme, if anything, even more unsatisfactory than the Lloyds Bank
Customer Review (Griggs Review) scheme set up to compensate the
victims of the Lloyds Bank/HBOS Reading fraud. Following three years
of objection and outcry from the APPG, SME Alliance and victims, this
22
scheme is now having to be completely rebuilt and restarted by Sir
David Foskett following the Cranston Review. As I said in my previous
email, Herbert Smith Freehills acted on behalf of Lloyds during their
years of denials of fraud and the discrediting of whistleblower, Sally
Masterton, and were involved in elements of the establishment and
operations of the Griggs Review.
The “Historic Shortfall” compensation scheme was established and will
be operated by the Post Office with the assistance of Herbert Smith
Freehills LLP in the wake of the settlement of the Bates litigation in
which the trial judge, Sir Peter Fraser, concluded that the Post Office’s
Horizon system had been unreliable since its introduction twenty years
ago. It was liable to cause the kind of shortfalls at branch terminals
experienced by some 550 claimant sub-postmasters and sub-
postmistresses and former sub-postmasters and sub-postmistresses -
as alleged by them in that group litigation. Further, the judge concluded
that witnesses for the Post Office set out to mislead him in their
evidence. In other cases (i.e. not the case he was immediately called
upon to decide), he concluded that important evidence given by
witnesses from Fujitsu in support of the Post Office’s claim/prosecution
was so misleading as to merit his referring them to the Director of
Public Prosecutions for possible criminal investigation.
.. [omitted text]
There are a number of aspects of the Historic Shortfall Scheme that
appear to make it unsatisfactory and give every indication of the
scheme failing in its purpose:
1. It lacks independence and doesn’t pretend to independence. An
elementary aspect of natural justice is that claims be determined in a
way that is disinterested — otherwise the complaint is that, if not
independent, the person acts ‘as a judge in their own cause’. This
usually requires that the person making the determination be not only
independent in fact but, importantly, that they be seen to be
independent. These requirements do not begin to be satisfied under
the Historic Shortfall scheme. I can see no sensible basis for it being
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82.
suggested otherwise. Without more, this makes the scheme being
flawed and in hindsight will also be judged to be flawed. I welcome Nick
Read, Group Chief Executive Officer, statement that “We are resolving
past events fairly where we got things wrong”, but this has all the
hallmarks of the promises made at the start of the Griggs Review. Even
if awards are fair, allowing any entity to preside as ‘judge, jury and
executioner’ over its own crimes will never be ultimately considered to
be such by many of those whose cases are considered by the process.
The fact that Herbert Smith Freehills LLP defended the Post Office in
the legal action and will now assist and advise on the compensation
scheme will only add to the inevitable future ‘cries of foul’. ...”.
Under the terms of the 2019 settlement deed, claimants in the GLO litigation were
precluded from continuing to use Freeths LLP as their solicitors.
A leopard does not change its spots — Mr Vijay Parekh and the Post
Office’s failure to give restitution
83.
84.
86.
87.
Mr Parekh was the postmaster of a branch post office at 78 High Road, Willesden,
London, NW10 2PX. At the time of his prosecution by the Post Office, Mr Parekh
had been a postmaster for four years, since 2006.
Mr Parekh had his conviction quashed by the Court of Appeal in 2021 but, unusually
for that tranche of appellants, he had not been a claimant in the GLO litigation. His
then trustee in bankruptcy would not permit him to join - albeit he was originally
named in the claim form. (Mr Parekh’s claims are not, accordingly, a preserved
malicious prosecution claim (i.e. ‘final compensation’) but are at large.)
Mr Parekh was in his own view successful and comfortably-off. His post office was a
substantial post office, to his recollection it had 7 Horizon terminals. He employed
a number of staff.
Following a Post Office ‘branch audit’ on 30 April 2009, he was interviewed in
connection with an alleged Horizon shortfall of £74,880. On that day he was
suspended from his post office business and excluded from his post office branch.
He was never to return.
In 2010, the Post Office prosecuted Mr Parekh for the alleged theft of £74,880. That
was shortly after the Post Office/Fujitsu meeting and memorandum concerning the
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24
88.
89.
90.
91.
Receipts and Payments mismatch bug,' the most important of the bugs considered by
Fraser J. in his Horizon Issues judgment: Bates and ors. v Post Office Ltd (Horizon
Issues) No 6. [2019] EWHC 3408 QB paragraph [427] ff and especially [428]. The
Receipts and Payments mismatch bug was the bug that was discussed at length
between the Post Office and Fujitsu, together with its known consequences, in
September 2010. That was immediately before the successful but wrongful Post
Office prosecution of Seema Misra for thefi, to which she had pleaded not guilty,
but of which she was convicted in October 2010.
There was no evidence to support the Horizon data relied upon by the Post Office
at Mr Parekh’s prosecution and there was no investigation by the Post Office into the
explanations given by Mr Parekh at his interview. “[T]here was no investigation [by
the Post Office] .... into the root cause of the shortfalls”, per the Court of Appeal,
Hamilton and Ors. v Post Office Ltd [2021] EWCA Crim 577, paragraph [264].
On 8 November 2010, at He
guilty to theft. The legal advice to plead guilty to a serious offence of dishonesty, an
ow Crown Court, upon advice, Mr Parekh pleaded
offence Mr Parekh knew he had not committed, and his subsequent imprisonment,
eff
considered himself to be, and was regarded by others, as a pillar of his local
tively broke Mr Parekh, who was President of a Gujurati community. He
community. On 10 January 2011 Mr Parekh was sentenced to 18 months’
imprisonment. Mr Parekh appealed his sentence. The appeal was (inevitably)
dismissed (201100665 A6).
It will have been well known by all concerned at the time of Mr Parekh’s prosecution
that the reliability of Horizon had been put in issue in Mrs Misra’s case, but, to use
Mr Jarnail Singh’s (the Post Office’s senior supervising lawyer's) expression, the
prosecution “destroyed” her defence.
Mr Parekh’s conviction was quashed by the Court of Appeal on 23 April 2021, the
court holding that he had not received a fair trial, for non-disclosure by the Post
Office (first category abuse of process), and that the Post Office had engaged in
conduct likely to undermine the criminal justice system and/or public confidence in
it, such that Mr Parekh’s prosecution was an affront to the conscience of the court
(second category abuse of process). The court said that at the time of his prosecution
“... Any
had questions about Horizon at the front of its consideration” and commented that
asonable prosecutor, concerned with the interests of justice, would have
Receipts and payments mismatching was a known problem with “Legacy Horizon” long before 2010
see the ‘Callendar Square’ Bug etc..
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a's
the “[Post Office] appears to have learned nothing from any aspect of Mrs Mis:
case”: Hamilton v Post Office Ltd [2021] EWCA Crim 577, paragraph [265]. (The
Post Office and
Jarnail Singh) challenges to the integrity and asserted reliability of Horizon by
s advisers had, on the contrary, learned that it could “destroy”
withholding disclosure.)
Failure to repay money paid over to the Post Office — failure to give restitution
92. Between his conviction and sentence in January 2011, Mr Parekh with his family
raised the money that he was falsely alleged to have stolen, and repaid it to the Post
Office in the hope (vain as it turned out) that doing so might avert a custodial
sentence. The Court of Appeal refer to this at Hamilton and Ors. v Post Office Ltd
paragraph [262].
93. The Inquiry is likely to be concerned that since the date of Mr Parekh’s conviction
being quashed on 23 April 2021 and the end of September 2022, the Post Office
made no attempt of any kind either to investigate sums paid over by Mr Parekh at the
time of his conviction, still less has it taken any steps, that properly it ought to have
taken, to repay those monies.
94, On 5 October 2022 the Post Offic
not the Post Office had any intention of repaying the £74,880.75 paid over by Mr
solicitors were asked to confirm (1) whether or
Parekh in 2010 and (2) why no attempt had been made in the 17 months since Mr
Parekh’s conviction had been quashed to repay the money.
95. At the time of writing, the Post Office is yet to make any substantive proposal for the
repayment of the £74,880 paid over by Mr Parekh in 2010.
96. That is profoundly unsatisfactory. It is unlikely that Mr Parekh is alone in his
experience.
97. The Post Office was first asked about sums paid over to it, in respect of which there
existed a duty to repay, entirely outside the settlement of the GLO litigation and its
settlement, by Ms Flora Page of Counsel in February 2022. That was during the
course of this Inquiry and the question was raised in connection with sums paid over
by/property taken from Ms Page’s clients in this Inquiry pursuant to confiscation
orders wrongly obtained by the Post Office. It appears that no thought or
Today (1° December 2022) after these submissions were finalised and were about to be filed, the
Post Office has offered to repay the entire sum with interest.
26
98.
99.
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consideration of any kind had been given by the Post Office before then to such sums.
and the duty to repay these, once convictions had been quashed. The Court of
Appeal, for reasons that are unclear, made no consequential directions or orders in
connection with confis.
ation orders that had been made by the courts where
convictions had been secured the Post Office. (In fairness to the Court of Appeal it is
not clear that any such consequential orders or directions were sought on behalf of the
appellants.) Giving the lie to the Post Office being a reformed institution
The importance of Mr Parekh’s experience and the Post Office’s unwillingness to
repay (give restitution of) sums it has unlawfully received, is that it gives the lie to the
proposition that the Post Office is now a different institution, determined to turn its
back on its past conduct and to behave differently. It appears that it will hang on to
(keep) money that it has unlawfully obtained, unless actively pursued for its
repayment.
It is accepted that for the Post Office £74,880.75 would not represent even a rounding error
in its accounts, but for most ordinary people it is a substantial sum of money. Further, it was
an amount for the alleged loss of which the Post Office was willing to see innocent people
imprisoned for substantial periods and to lose their livelihoods, their health and homes.
Mr Castleton’s experience — Interim payment by BEIS
100.
101.
102.
Mr Castleton remains an undischarged bankrupt. His bankruptcy was precipitated by
the costs order of £321,000 made against him in the High Court by Judge Richard
Havery Q.C. in January 2007 on the Post Office succeeding in its civil claim for
£26,000. In 2021, Mr Castleton was about to obtain the annulment of his bankruptcy.
His trustee (of Moore) had paid over to him the modest balance standing to his
account in the estate, him having no creditors. Steps towards annulment were
suspended and a joint trustee (of Grant Thornton) was appointed.
Following announcement that the government would compensate claimants in the
GLO litigation, Mr Castleton became eligible for payment of an interim award.
From August 2022 there were discussions about how an interim payment would be
dealt with by the joint trustee.
103.
104.
105.
106.
107.
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Both Freeths LLP - who were appointed to administer payment of interim payments
to those eligible, and who were retained by Mr Castleton for this purpose (there being
no other way of obtaining an interim payment from BEIS), and, separately, BETS
sought confirmation that an interim payment would be paid over to Mr Castleton.
The joint trustee (of Moore and Grant Thornton) was unwilling to provide that
confirmation.
There followed extensive discussions, in which Freeths expressed the view that,
despite being appointed on Mr Castleton’s behalf as his solicitors for the purpose of
administering the interim compensation amounts payable, they could not actively
engage with the trustee because they had not been put in funds (by BEIS) to do so.
BETIS was unable to make headway with the trustee. BETS were not willing to make
any payment over to Mr Castleton and were similarly unwilling to pay the sum over to
the trustee, in the absence of clarification as to how the sum would be dealt with on
behalf of the estate.
It was common ground:
a. That Mr Castleton’s estate had no outstanding creditors; and
b. That he was entitled as of right, his debts having been discharged, to seek
annulment of his bankruptcy.
Despite the sum being in law an ex gratia payment (and therefore not recoverable at
the suit of the estate) it was not accepted that the sum be paid either directly to Mr
Castleton or, without deduction, to him if first paid over to the trustee. A form of
disclaimer on behalf of Mr Castleton was proposed and submitted to the trustee (and
to Freeths and to BEIS for their comment). The trustee demurred and responded by
proposing Mr Castleton should seek annulment of his bankruptcy - a process that will
likely take months to finalise.
Mr Castleton was left without payment of the interim sum to which BEIS agreed he
was in principle entitled.
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108. In the face of the apparent log-jam, the trustee was advised in a letter, dated 15
November 2022, that the issue would be raised on Mr Castleton’s behalf in this
Inquiry at the compensation hearing fixed for 8 December 2022.
109. On 23 November 2022 the trustee confirmed the sum in interim compensation from
BEIS could be paid over to Mr Castleton by BEIS directly and without any deduction.
On 30 November 2022 interim compensation was received by Mr Castleton. Itis the
first significant amount he has received from the Post Office in connection with the
wrongful (malicious) civil claim brought against him in 2006.
110. Mr Castleton has been waiting for more than 16 years to receive compensation for the
grievous harm inflicted by the Post Office upon him and his family by the Post Office
and Fujitsu.
lL. What emerges from this short, and necessarily simplified, summary, is that the
Inquiry’s close interest in the payment of compensation is having a salutary effect.
112. The Chair in the issue of
respectfully invited to maintain inter
compensation, that is of overwhelming importance to those afflicted by the Post
Office’s actions. That interest to date has had an animating and energising effect.
PAUL MARSHALL
2-3 Gray’s Inn Square
Gray’s Inn
London