Notes for recusal application
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Subject Scope of relevant/ admissible material Improper Attempted justifications, if any
matter findings
Training The only way the training in fact received The Judge made No specific attempted justifications.
could be relevant to the implication of this findings on the
term, or to any other Common Issue, is as adequacy of the Judge did stress, in oral argument, that PO
factual matrix, insofar as the training was
provided before entry into the relevant
contracts.
The findings which the judge made on
contested issues regarding the factual matrix
are listed at Judgment, para 569. He does not
include in the factual matrix any findings on
the quality of training received. He does
record (at Point 70 of the Factual Matrix) that
on “the evidence of the six Lead Claimants,
even when further training was specifically
requested it was not provided, and in some
cases the SPM was told there was no
entitlement to it, even though it was
specifically requested’. It is not clear, though,
what role this part of the factual matrix plays
in any subsequent findings.
training received
by the LCs at
Judgment, paras
193, 297, 346,
352, 437, 955.
had led some evidence on training. That was
not surprising, in circumstances where there
was some (very limited) potential relevance
(as possible factual matrix).
Led to this exchange:
Page 32
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
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So the adequacy of the training which the 6
LCs in fact received was not relevant to the
Common Issues Trial (“CIT”).
The adequacy of training will however be
relevant to future breach trials, as follows.
The Cs allege (at para 64.1 of the Amended
Generic Particulars of Claim (“AGPoC”))
that there was an implied term that PO was
obliged to provide “adequate training and
support”.
Part of the function of the CIT was to decide
whether this term should be implied. He
decided it should be: Judgment, paras 750
(where he tweaked the wording from the Cs’
pleading slightly, perhaps by accident);
1122(2).
Additionally, the Cs allege (at para 63A of the
AGPOC) that when PO supplied training
regarding Horizon or the Helpline in the
course of its business, there was a term
implied (by statute) that Post Office would do
so with reasonable care and skill.
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 MRJUSTICE FRASER: Quite a lot of your evidence
was high
22 level in some areas, and I’ m not criticising , I’m
23 observing, but you did lead evidence on training .
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
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The Judge found that (a) there was no need
for this term because of his finding as to the
more general implied term requiring training
(para 771), (b) no term should be implied
pursuant to statute, and (c) that the provision
of materials as part of the training process fell
within the more general term re training
which he had already implied (para 781).
The AGPOC alleges, at para 92, that PO
breached its duties by providing inadequate
training.
So the adequacy of training will be an issue at
future breach trials.
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
II 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
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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
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.
Helpline It is difficult to see how the quality of the The Judge made The Judge’s position appears to be that all of
service in fact provided by the Helpline could I findings on how this evidence is relevant to answer Common
be relevant to the implication of any term, or I the Helpline in fact I Issue 13: see Judgment, paras 54, 55, and para
to any other Common Issue. operated, 569 Factual Matrix Point 32.
including whether
The only legitimate relevance could be to it was of an Common Issue 13 is “Did Subpostmasters
determine whether provision of the Helpline I adequate quality as I bear the burden of proving that any Branch
was part of the general provision of Horizon. I experienced by Trading Statement account they signed and/or
these LCs, at paras I returned to the Post Office was incorrect?”
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That came through in the judge’s analysis as
follows.
As noted above, the Cs allege, at para 63A of
the AGPOC, that when PO supplied the
Helpline to SPMs in the course of its
business, there was a term implied (by
statute) that Post Office would do so with
reasonable care and skill.
The Judge found (at para 777) that this term
should not be implied by statute.
However, he also found, at para 778, that “the
Helpline is an integral part of Horizon”, and
that provision of the Helpline therefore fell
within the scope of the term which he had
implied at para 749: “To provide a system
which was reasonably fit for purpose,
including any or adequate error repellency.”
(He also found, in the alternative, that a term
should be independently implied that the
Helpline should “be operated with reasonable
care and skill” (paras 779-780).)
248, 249, 303,
357, 556, 558.
A Branch Trading Statement is what the
Subpostmaster submits at the end of each
trading period to show his trading figures. It is
generated through Horizon. If he disagrees
with any apparent shortfall appearing in the
statement, he needs to register that dispute
with the Helpline. The procedure which is
supposed to be followed is agreed: see
Appendix 3 to the Judgment.
The Judge says that, to answer Common Issue
13, he needed to know how the Helpline
operated in practice. This is part of his more
general contention that how Horizon operated
in fact (within which he included the
operation of the Helpline) was part of the
factual matrix: Judgment, para 55.
But that is wrong. At most, the structure of
how registering a dispute was supposed to
work could be relevant matrix. How the
Helpline in fact interacted with individual
LCs could not be.
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But making those findings only required
analysis of what the Helpline was at a very
high level — it did not require going in to the
detail of the quality of service experienced by
particular LCs.
The service in fact provided by the Helpline
is, however, relevant to the Cs’ allegations of
breach.
They say that PO breached its obligations by
(a) generally providing poor quality support
through the Helpline (AGPOC, para 30 taken
with para 93) and (b) telling Cs, including
through the Helpline, that there were no
problems with Horizon (AGPOC, para 103).
Post
Office’s
knowledge
of problems
with
Horizon
It is an important part of Cs’ case on breach
that PO knew of problems with Horizon, and
made misrepresentations in that regard:
AGPOC, para 115. Denied in Defence and
Counterclaim, para 156.
It is difficult to see how Post Office’s alleged
knowledge could be relevant to any Common
Issue. At para 569, Factual Matrix Point 61
the Judge said that “The Post Office has on
The Judge made
findings as to Post
Office’s
knowledge at
paras 348, 541,
543.
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occasion detected that Horizon generated
errors caused the appearance of shortfalls
and errors which the Claimants themselves
had not been able to identify as the cause of
those apparent shortfalls.” It is not clear
though why that would be relevant factual
matrix. In any event, the findings made in the
Judgment (see next column) go beyond this.
Causes of What caused particular Cs’ shortfalls will The Judge makes __I As above, the Judge’s position is that all this
shortfalls obviously be the heart of future breach trials, I comments/ material is relevant to answering Common
and is also at the heart of the current findings which go_I Issue 13, because it informs his analysis of the
ongoing trial, which focuses on whether to the cause of the I status of a Branch Trading Statement:
and to what extent problems with Horizon I LCs’ shortfalls (in I Judgment, para 55.
existed). particular,
accepting But it is very difficult to see how individual
The Cs will say that their apparent shortfalls I Claimant evidence I experiences could, or should, affect that
were in fact generated by Horizon. PO will that the shortfalls I analysis. This just seems to be a lot of post-
say that is extremely unlikely. See AGPOC appeared contractual evidence, none of which can
para 24.2; Defence and Counterclaim, paras I inexplicable, that I legitimately be part of the factual matrix.
16 and 55. they took all
possible measures
Notably, the Judge accepts, at para 569, to work out what
Factual Matrix Point 41, that it “is a matter could have caused
for the Horizon Issues trial whether it would _I them, etc) at paras
be right to infer or presume that a shortfall 170, 172, 219,
and loss was caused instead by a bug or error I 302, 309, 311.
in Horizon.”
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He also accepts, at para 569, Factual Matrix
Point 79: “Whether losses in branches arise
in the ordinary course of things without fault
or error on the part of Subpostmasters or
their assistants can only be determined after
the Horizon Issues trial. This is dependent
upon the answers to the Horizon Issues, as
the Horizon system is used by SPMs in “the
ordinary course of things”’.”
So effectively, he accepts that the cause of
particular shortfalls was not within the scope
of the CIT.
Oddly, he goes on to include in the Factual
Matrix, at Point 60, that “There is no evidence
available to demonstrate that any SPM has,
to date, ever been able to establish to the Post
Office’s satisfaction that an alleged shortfall
was the result of a Horizon bug or error.”
(emphasis in original) It is difficult to see
how this could be relevant matrix.
This links also to
more general
findings he made
on what Horizon
did and did not
allow the Cs to do,
as part of the list
of Factual Matrix
Points at para 569.
See Points 34, 50-
51, and 54-57. See
also para 824.
These points are
all squarely within
the current
(Horizon) trial.
Post
Office’s
investigation
Cs allege, at AGPOC para 64.7, that there
was an implied term obliging Post Office to
“make reasonable enquiry, undertake
The Judge made
findings/
observations on
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of apparent
shortfalls
reasonable analysis and even-handed
investigation, and give fair consideration to
the facts and information available as to the
possible causes of the appearance of alleged
or apparent shortfalls (and the cause
thereof)”. They also allege related or
associated obligations at paras 64.4 and 64.5.
And they allege, at para 64.6, an implied term
obliging PO to “disclose possible causes of
apparent or alleged shortfalls (and the cause
thereof) to Claimants candidly, fully and
frankly”.
The Judge agreed that all of these terms
should be implied: Judgment, paras 746,
1122(2).
It follows that it will have to be determined,
at future breach trials, to what extent, if any,
PO breached those obligations, by failing to
investigate adequately and/or failing to
disclose what it knew to the Cs as they were
investigating the apparent shortfalls. As to
breach allegations, see AGPOC paras 94, 96
and 98.
the quality of Post
Office’s
investigations at
paras 115, 165,
208, 557.
The Judge also
made findings
about Post Office
not assisting LCs’
own investigations
by disclosing
things that PO
knew at paras
217(2) and 223.
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As far as relevance to the CIT goes, the
Judge, as noted above, found as part of the
matrix (para 569, Factual Matrix Point 61)
that PO sometimes knew that errors were
caused by Horizon. But even if that was
relevant matrix, it still does not extend to (a)
disclosure of what PO knew, or (b) the quality
of PO’s own investigations of shortfalls.
Neither is suggested to be part of the matrix.
Whether
suspensions/
terminations
were lawful
Cs alleged, at AGPOC 64.13, an implied term
that they could not be suspended (a)
arbitrarily, irrationally or capriciously, (b)
without reasonable and/or proper cause, and
(c) in circumstances where PO was itself in
material breach of duty.
Similarly, Cs alleged an implied term that
their contracts could not be terminated (a)
arbitrarily, irrationally or capriciously, (b)
without reasonable and/or proper cause, and
(c) in circumstances where PO was itself in
material breach of duty.
The Judge implied these terms, with the
qualification that he limited part (c) to
“circumstances where the Defendant was
itselfin material breach of duty in respect of
The Judge made
findings/
observations on
the reasonableness
of PO’s behaviour
in suspending/
terminating these
LCs at Judgment,
paras 20, 263-264,
402-403, 479-480,
514-515, 723(2).
10
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the matters which the Defendant considered
gave it the right to suspend” or terminate:
Judgment, paras 747, 748.
How PO in fact acted on particular occasions
when it suspended/ terminated cannot be
relevant to whether a term of this kind should
be implied.
Cs then allege that PO breached its
obligations in the circumstances/ manner in
which it suspended/ terminated the Cs:
AGPOC, para 99. This includes, for example,
the allegation that PO suspended/ terminated
“without investigating and/or giving
reasonable consideration to the
circumstances giving rise to” losses.
Obviously that question will have to be
determined at future breach trials.
Harassment I Cs allege that PO committed this tort. The The Judge made The Judge did include in the factual matrix
harassment is said to consist of actions findings on PO (para 569, Factual Matrix Points 35 and 40)
including demanding payment of shortfalls demanding findings that PO pursued debts from the Cs
(AGPOC, para 119). payment at without regard to whether they were disputed.
Judgment, paras
It is difficult to see how this could be relevant I 222, 327, 462, He justified this, in part (i.e. referring to Point
to the CIT. 35, but not Point 40) by saying that it was
11
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516, 517, 723(1),
723(4).
relevant to Common Issue 13 whether a
disputed Branch Trading Statement was still
treated as binding by PO. But how PO
behaved in fact cannot be relevant to the
objective legal analysis of the Branch Trading
Statement’s status. If PO wrongly relied on a
Branch Trading Statement in one
circumstance, that cannot affect what its legal
status, as a matter of contract and/or agency
law, is.
12
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