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PAUL MARSHALL.
2-3 GRAY’S INN SQUARE
Gray's INN
LONDON
WCIR 5JH
Saturday,
Dear Minister Hollinrake,
Re: The Post Offi
‘The unfair treatment of convicted cl
and Compensation Arrangements
jaimants ~ time to tear up the OHC scheme?
Tam as surprised as you may be, that I am writing to you within the space of a week in connection
with the same matter. As you know, I represent some of the victims of the Post Office in their claims
for compensation.
I believe that my reason for my now writing to you, further to my letter of 23" March 2023, is a
matter of considerable public importance. I would not trouble you were it not. I believe that it is a
matter that may merit consideration by Parliament. It is surprising, given the fundamental importance of
the issue (and its obviousness, once it is explained), that it has not been raised before now.
I shall explain the issue briefly. Once it becomes apparent and is understood, it may well require
Parliament to determine how it is to be addressed. Parliament rightly determined that parties to the Post
Office GLO litigation must be properly and fairly compensated for their losses and the harm inflicted
upon them by the Post Office and its lawyers. For that purpose, the terms of the deed of settlement of
the GLO litigation of December 2019, the effects of which had become both a public scandal and an
embarrassment for the government as the Post Office’s owner, are treated as no bar to “further
compensation” (in Sir Wyn Williams's formulation) to be paid under the scheme recently announced
by DBT (the “GLO Scheme”). Further compensation is to be paid ex gratia, and not as of right
se strict legal right
settlement and Mr Justice Fraser’s judgment in Bates and ors. v Post Office Ltd (Horizon Issues) No.6
[2019] EWHC 3408).
re subject to the order of the court made in December 2019 following
(be
The issue arises, and has become apparent to me, as a result of two circumstances:
a) As I explained to you in my letter to you of 23" March 2023, it is both unfair and
unsatisfactory that those convicted of offences on prosecution by the Post Office, who
were parties to the GLO litigation and who have had their convictions quashed on
appeal (“convicted GLO claimants”), should be barred, by the terms of the 2019
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settlement deed that brought an end to the group litigation, from claiming damages
against the Post Office, under the scheme administered by Herbert Smith Freehills (the
“Overturned Historic Convictions” (OHC) scheme), for the Post Office’s obstruction
and interference with their rights of access to the court by deliberately withholding from
them information and material that would have enabled them to appeal their
convictions long before 2021.
As I have explained, for many affected, that obstruction/interference with legal rights
resulted in years of untold suffering and avoidable loss and harm that in law would
attract exemplary (punitive) damages. There is no similar bar to claims for
damages/compensation for those who were similarly affected, but who were either not a
party to the litigation at all and who have had their convictions quashed on appeal
(unrestricted damages), or else who were, for example like Mr Castleton, the subject of
civil rather than criminal proceedings. Mr Castleton is eligible for full compensation for
losses suffered by him under the DBT “GLO compensation scheme”. ‘The reason for
the bar asserted by the Post Office to claims by formerly convicted claimants, is that
under the terms of the 2019 settlement, the only residual claim left, to those who.
otherwise surrendered all their other civil claims for damages for fhil value under the
terms of the December 2019 settlement of the GLO litigation, is a claim for damages
for malicious prosecution - a narrow legal wrong and a difficult claim in law. Itis a claim
that the Post Office is zealous to confine within the four corners of the terms of the
2019 settlement deed.
(2) Thave recently had cause to advise a formerly convicted postmaster on their claim for
compensation. Their conviction has been quashed on appeal and they have made a
claim for malicious prosecution against the Post Office and the losses that they have
suffered as a result. The Post Office has adopted a (doubtful) formulation by the Court
of Appeal in Hamilton v Post Office Ltd [2021] EWCA Crim 577. The Post Office
contends that, although pragmatic
ally the Post Office (as prosecuting authority) did not
resist the appeal against conviction by the individual concerned, with the result that their
anot
conviction was quashed by order of the court, theirs (the Post Office asserts) was
case in which Horizon was ‘essential to their prosecution’. Accordingly, it is asserted by
the Post Office, any claim by them for malicious prosecution would likely fail. The
result is that the Post Office is willing to pay compensation in an exiguous amount that
bears no relation to the individual’s ruination, or to the destruction of their livelihood,
that resulted from their false conviction for an offence of dishonesty. It is an amount
that would represent for the Post Office little more than a nuisance payment.
Those circumstances, considered together, have caused me to reflect upon an issue that I do not
believe anyone has previously considered or raised. (If it has, I will no doubt be corrected.)
The question is as follows:
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Why is a convicted GLO claimant, who has had their conviction quashed
on appeal, constrained in their ‘compensation’ and confined, under the
‘OHC scheme’, to the terms of the 2019 settlement deed, that restricts and
limits their claim solely to damages for malicious prosecution, once their
conviction is quashed, and bars all other heads of loss for harm inflicted
upon them (such as for breach of contract/breach of tust/abuse of process)
nil value in 2019 under the settlement
(because these were surrendered for4
deed), when a GLO claimant, who was not convicted, but who did receive
compensation under the terms of the 2019 settlement deed, is now not
y restricted and limited but is able to claim compensation under the
DBT ‘GLO scheme’ for the full difference’ between the compensation paid
under the terms of the 2019 settlement deed and the actual harm that they
ions towards them, that
suffered as the consequence of the Post Office’s act
is to say, across the whole range of claims that are otherwise formally, as a
matter of strict law, subject to the 2019 settlement deed - but which is treated
under the DBT GLO scheme as not binding for the purposes of paying ex
gratia “further compensation’
The obvious point (or perhaps not obvious - because no one has raised it before now (except
obliquely, by me in written submissions to Sir Wyn Williams in the Inquiry) is that a convicted
postmaster whose conviction has been quashed and who receives compensation under the OHC
scheme will then be to all intents and purposes in the same position as the position a not-convicted GLO
claimant was in, who had received payment under the terms of the settlement of the litigation in 2019 -
vi
inadequate compensation compared with the loss and injury in fact sustained by them, in exchange
for surrender (resolution/settlement) of all their legal claims.
In short, why should convicted claimants not be entitled to claim, in the DBT GLO scheme, the
difference between whatever compensation they may recover under OHC scheme (if any), for malicious
prosecution, and the losses that they actually suffered? ‘That is to say, in just the same way that non-
convicted GLO claimants are able to claim these under the DBT GLO scheme that was last week
announced?
If, for the sake of argument/hypothetically, a formerly convicted GLO claimant's preserved right
to claim malicious prosecution is considered to be so weak as to be not worth pursuing, it would mean
that such a formerly falsely convicted GLO claimant:
(a) Has received no compensation under the 2019 settlement deed (convicted GLO
claimants are expressly excluded from the settlement sum that settled the claims in
the litigation (other than malicious prosecution claims)).
(b) Would recover no compensation (damages) under the OHC scheme (an ex
hypothesi weak case on malicious prosecution not being pursued).
1 Publicly stated to be intended to put the person back in the position, so far as financial compensation can,
that they would have been but for the Post Office’s actions towards them.
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(c) Is ineligible (as things stand) for compensation under the DBT GLO
compensation scheme - this, despite them having surrendered all their claims in
2019 for nothing - other than one considered ultimately not worth pursuing (Le.
(b) above).
They would thus therefore be wholly uncompensated for the wrong done/harm inflicted upon them by
the Post Office - a sort of Catch-22/‘falling between the stools’. The issue is plainly only marginally
affected by a bad/wholly inadequate settlement of a malicious prosecution claim (which is what
prompted me to think further about the issue). (A further problem here is that such inadequate
settlements will likely be hedged around by heavy confidentiality terms demanded by the Post Office.)
I believe that there is no principled answer that is available as to why a formerly convicted GLO
im under the DBT GLO scheme. It might be said that the OHC
are “full a
claimant should not be able to ¢
scheme results in settlements tha ind final” as between a claimant and the Post Office. But that
should be no bar to “further compensation”, any more than the 2019 settlement deed is binding for
GLO claimants. The point is that the DBT scheme is ex gratia and informed by principles of £
not of right.
There is no reason why formerly convicted claimants should not be able to claim in the DBT.
GLO scheme the difference between the damages (if any) that they receive from the Post Office under
the ‘OHC scheme’ (which is not a compensation scheme but, rather, is litigation for the payment of
damages in law (not resolved in 2019) for malicious prosecution (for those who were parties to the GLO.
litigation) and the loss that they actually suffered as the consequence of their wrongful conviction. This
all their other claims under
of f
would be in recognition that they, like not-convicted GLO claimants, gave up
the (unsatisfactory) 2019 settlement. Indeed, once raised, it is obvious, ss, that the}
mi
should be able to claim that difference.
That the “OHC scheme’ is treated as somehow the ‘end of the line’ for convicted GLO claimants
is wrong in principle, because it fails to recognise that convicted claimants, like not-convicted claimants,
gave up all their legal claims (save for malicious prosecution) under the (unsatisfactory) 2019 settlement.
It results in formerly convicted GLO claimants having rights to compensation for the injury inflicted
upon them by the Post Office cut-down and limited, compared with not-convicted GLO claimants, in a
way that is self-evidently unfair.
The public would be astonished to know that falsely convicted postmasters, whose lives have been
devastated, and in many cases in truth ruined, by the Post Office, in the most extensive miscarriage of
justice in English legal history, are in a worse position than those whom it did not prosecute. Once the
disparity in treatment, and the unfairness, is exposed, the maintenance of the existing arrangements
becomes untenable and also seriously objectionable. It is the consequence, I believe, of failing to
identify that the result of the ‘OHC scheme’, is to put convicted claimants in the same position as non-
convicted claimants were in under the settlement reached in the GLO litigation in December 2019.
‘That was the point of departure for the government recognising that the terms of settlement were
manifestly unfair for GLO claimants, as compared with those who benefitted from the litigation, but who
heme (HSS). Payment
laimant to the position that their non-
were not parties to it, and who are eligible to claim under the Historic Shortfall
of damages for malicious prosecution simply brings a convicted
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convicted fellow claimants were in in 2019 - viz they will be inadequately compensated for the losses
they suffered and the harm inflicted upon them by the Post Office.
he issue then becomes, as it is for others, what is the true loss suffered by them and the
appropriate compensation that must be paid, in fairness, in recognition of the difference between what
they suffered and what they receive/have received in settlement of their legal claims? That applies with
as much force to convicted claimants as to those who were not convicted, but who also suffered harm at
the hands of the Post Office (.e. those now eligible to claim in the DBT GLO scheme).
The problem, in part, I apprehend, is the result of insufficient regard being had to one group of
GLO claimants (those previously falsely prosecuted and convicted) being treated as restricted to their
strict residual legal rights (a limited head of claim in law) as the measure of their ‘compensation’
(damages in law), but the other group (those not-convicted) being compensated by a measure
determined and informed by principles of fairness. (There are further reasons - e.g. failure to recognise
that whilst it was seen that not-convicted GLO claimants settled their claims for a sum that was plainly
inadequate to their loss, convicted GLO claimants, under the terms of settlement gave up all their claims
nil.)
(save, contingently, for malicious prosecution) fo!
There is no principled basis for such disparity in treatment.
Tam confident that you will recognise the importance of the issue that I have raised. How it is to
be addressed, once raised, is a matter for you and, I apprehend, for Parliament. I am conscious that
addressing it may impact upon the timeline for payment of compensation under the statutory
arrangements and the voting by Parliament of public money for the payment of compensation.
Tam copying this letter, for information, to Sir Wyn Williams, to Lord Arbuthnot and to:
Professor Richard Moorhead.
Yours faithfully,
Kevin Hollinrake Esq., M.P.
Minister of State for Enterprise,
Markets and Small Bus
Department for Business and Trade
1 Victoria Street
London
SW1H 0OET
ness
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Sir Wyn Williams, Chair, Post Office Horizon IT Inquiry
The Rt. Hon. The Lord Arbuthnot of
Professor Richard Moorhead, University
Rob Brightwell, Deputy Director, Business Resilience, Department for Business and Trade