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Witness Name: Lord Neuberger of Abbotsbury
Statement No.: WITN10650100
Dated: 10" May 2024
POST OFFICE HORIZON IT INQUIRY
FIRST WITNESS STATEMENT OF
LORD NEUBERGER OF ABBOTSBURY
I, LORD NEUBERGER OF ABBOTSBURY, will say as follows:
INTRODUCTION
1. This is my statement following a Rule 9 request by POL Horizon IT Inquiry (“the
Inquiry”) contained in a letter to me dated 9' February 2024. The structure of
this statement is framed by reference to the specific questions raised in Annex
1 to that Letter. The statement covers a period between around 10" March and
21% June 2019, and it deals with advice which I gave POL, discussions which I
had and views which I expressed to POL, POL’s solicitors, and/or POL’s
counsel in connection with the Bates litigation.
2. After searching my computer records, I realised that I had not retained many of
the emails which I sent and received in connection with the Bates litigation.
Accordingly, I asked the IT department at One Essex Court, the chambers from
which I practice (“the IT team”), to search for all those emails in the archives.
While the IT team seem to have retrieved most of the emails which I sent or
received in connection with the Bates litigation, it does appear that there are
some emails, and some attachments which have not been found.
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3. The emails which the IT team have retrieved and forwarded to me are in threads
consisting of a number of emails: I am sorry if production of emails in this form
does not conform to the Inquiry’s requirements, but that is the form in which
they have been sent, and are available, to me.
4. I should perhaps add that I had started to prepare this Statement before the IT
team had forwarded most of the emails which I had sent and received in
connection with this matter, and, on reading them, I realised how much I had
forgotten.
5. Unless I say otherwise, all dates mentioned in this witness statement are in
2019.
BACKGROUND
6. I was called to the Bar of England and Wales in 1975, became a QC in 1987,
and was appointed a High Court Judge in 1996. I was promoted to the Court of
Appeal in 2004, and was made a Law Lord in 2007. I became Master of the
Rolls in 2009, and was appointed President of the UK Supreme Court in 2012.
On retiring from that post in 2017, I started work at One Essex Court in the
Temple, as an arbitrator, mediator and legal expert.
7. Ona date which clearly must have been before 13" March, one of the clerks (I
am pretty sure that it was the senior clerk) at One Essex Court contacted me (I
think by telephone) and, while I do not recall his words, he told me that a QC in
chambers had just received a draft judgment, which in due course became the
“common issues” judgment, and which he said raised some points on which my
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view might be urgently wanted. I cannot recall whether he gave any further
details. I am pretty sure that I explained that I had some work commitments and
was due go on holiday on the 14" March, which would limit the time which I had
to do any work on the case, but that, if that was understood and accepted by
the solicitors and counsel involved, I would do what I could. I believe that I
suggested that if I was to proceed I should talk as soon as possible with the QC
involved.
8. I then talked to the QC concerned, David Cavender. I cannot recall the exact
date or the details of the conversation, but I am pretty sure that he explained:
(a) The nature of the Bates litigation,
(b) The basic procedure which the Judge, Fraser J (as he then was) (“the
Judge”), had ordered, namely a series of (I think three) almost back-to-
back trials each on different specified issues;
(c) Some of the procedural background;
(d) The issues arising from the draft judgment as he saw them, namely
a. the substantive findings as to the effect of a large number of
contractual provisions,
b. alleged unfairness on the part of the Judge, and
c. apossible application to the Judge to recuse himself from hearing
the subsequent trials (“the recusal application’).
9. I believe that Mr Cavender and I agreed that if I was to give a view, I should do
so very promptly, as the next trial was due shortly to take place and accordingly
any proposed recusal application, should be made as soon as reasonably
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possible, and that I explained that, in light of my holiday arrangements, my view
would anyway have to be given by the 14" March. I also think that I said that I
would need a Note from Mr Cavender which set out the relevant facts so far as
the recusal application was concerned.
10.In that conversation (or in a later conversation — if there was one), I recall that
Mr Cavender and I discussed the possibility of a different leading counsel
presenting any recusal application in court, which seemed to me to be a good
idea. I am not sure when I first knew that Lord Grabiner QC had been instructed
for that purpose, but it may well have been in an email after I had arrived in
South America.
1
.I am afraid that I cannot remember if I had any communications at that stage
with POL’s solicitors, Womble Bond Dickinson (“WBD”). At some point, they
must have instructed me, but I cannot recall how or when. They may well have
instructed me orally via my clerks to provide a view in writing. It is quite possible
that I talked to them, but I do not recall having done so. It may even be that they
had asked my clerk prior to his contacting me as described in paragraph 7
above.
12.1 am afraid that I cannot put precise dates on the events described in the
preceding five paragraphs (save the date I went on holiday as that is the only
relevant event recorded in my diary), but they all must have occurred between
(i) some time shortly after - presumably a day or two after - the draft common
issues judgment was circulated and (ii) 14" March, the date of my Observations
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(POL00025910) (“the Observations”), and the date when they were presumably
circulated.
OBSERVATIONS DATED 14 MARCH 2019
13.1 have been asked to consider (POL00023097) (Note on background to
possible recusal application) (“the Cavender Note”) and the Observations and
a series of related questions. I can confirm that the “Note on the background
to possible recusal application”, to which I referred in paragraph 1 of the
Observations, is the Cavender Note.
14.1 am asked to provide details of my discussion with Mr Cavender (referred to in
paragraph 1 of the Observations), all oral or written communication between
myself and POL’s legal representatives or agents in connection with the
instruction, and the information upon which I relied when preparing the
Observations
(a) I have already mentioned the conversation with Mr Cavender and have
said all that I can recall about it in paragraphs 8 to 10 above. As
mentioned, it is possible that I had other conversations with him prior to
producing the Observations, but, if I did, I do not recall them.
(b) I do not recall talking to anyone else (other than clerks) about the case
prior to producing the Observations, but it is possible that I spoke to WBD
and it is also possible that I spoke to Mr Cavender’s junior counsel.
(c) Apart from the Cavender Note, the draft judgment, and a number of
authorities (mostly on recusal, but one or two on “relational contracts”), I
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do not now recall whether I looked at any other documents, but I may
have done so. Interpreting a document one has written is not always a
reliable exercise, but paragraph 1 of the Observations suggests that, at
least essentially, I based my conclusions on the two documents there
referred to, which in turn indicates that they were the documents which I
solely or mainly relied on, and there is nothing I can see in the
Observations to call that into question.
15.1 am directed to paragraph 14 of the Observations, where I state “I have not
had the opportunity of considering all transcripts”. I am asked to set out which
transcripts I had available and those I read in preparing the advice, and why I
considered it appropriate to advice on the application for recusal without
reviewing all of the transcripts:
(a) lam not sure whether the transcripts of the common issues trial were
available to me at that time, but I suspect that they were;
(b) I would therefore be speculating as to whether, and if so to what
extent, I knew what was in the transcripts beyond what was quoted from
them in the Cavender Note;
(c) I am reconstructing rather than recalling, but the circumstances
described in paragraph 9 above inevitably restricted the amount of
reading I could do, as often happens when a view is needed urgently;
(d) I clearly believed that I had read enough to form the view which I
expressed in the Observations in the terms in which I expressed it: if I
had felt otherwise, I would not have expressed myself as I did.
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16.1 am asked to set out details of any oral discussions or other written
communications between myself and other Counsel representing POL in the
Bates litigation prior to providing the Observations, and whether I had any oral
discussions with any representative of POL (also prior to preparing the
Observations. As already mentioned, prior to circulating the Observations, I do
not recall any conversations or other communications with counsel acting for
POL or with WBD, other than the conversation I have referred to with Mr
Cavender, but there could have been other conversations.
17.1 am asked to describe any further communications between POL’s legal
representatives or agents when I was initially approached to advice to the call
with the POL board of directors on 18'" March 2019. (“the March call”). As far
as I can recall I had no oral conversations about the case with counsel acting
for POL or with WBD before I went to South America on 14" March, and I do
not believe that I had any conversations on the telephone with counsel acting
for POL or with Wbefore I joined the March call from Argentina.
18.However, before the March 2019 call, I did have some email exchanges with
Lord Grabiner and with Mr Beezer of WBD (as well as Rob Smith, one of the
clerks at One Essex Court). These email exchanges are WITN10650101 to
WITN10650106”, and I would summarise their basic effect as follows:
(a) On 16" March (a Saturday) I received an email which included some
earlier emails which showed that on 15‘ March (i) the common issues
judgment had been handed down, and (ii) Lord Grabiner had been
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instructed, and that he was going to read the papers over the weekend;
I replied saying that I would be interested to know what Lord Grabiner
made of the judgment; WITN10650101.
(b) Later the same day, I received an email in which Lord Grabiner said, in
answer to the clerks telling him that WBD had asked for “2 calls on
Monday” one at 1.00 pm and the other with the POL board at 5.15 pm,
that he could make the former but not the latter; WITN10650102.
(c) On 17" March, I received an email from Lord Grabiner, who indicated
that he was reading the common issues judgment, and attached to that
email was an email exchange between Mr Beezer of WBD and the clerks
at One Essex Court raising, among other things, the possibility that, if
Lord Grabiner could not attend the 5.15 call, I could do so;
WITN10650103.
(d) Later the same day, I had an email exchange with Lord Grabiner, in
which I expressed the view that the Judge had gone wrong in his
analysis of the law in the common issues judgment; WITN10650104.
(e) On 18" March, I was told by the clerks that Lord Grabiner, Mr Cavender
and his junior Gideon Cohen (“the counsel team”) were meeting in
chambers with POL at 2.00, and WBD, and that I was due to talk on the
telephone with POL and Mr Cavender and Mr Cohen at 5.15. I asked to
be emailed following the former meeting if there was anything I should
know for the latter meeting; WITN10650105.
(f) Following the meeting at 2.00 pm on 18" March, Lord Grabiner emailed
me saying that he had advised POL that it had “strong grounds” for
making an application to the Judge to recuse himself (a “recusal
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application”), but that there were “board members who were nervous of
the publicity consequences’, that Mr Cavender and Mr Cohen might not
be attending the 5.15 meeting as the POL thought they would thereby
“get a more detached view” from me, and expressing the view that if the
recusal application was not made, POL would be “in an even worse
position than they are now”; WITN10650106;
(g) I replied to Lord Grabiner saying that, a “‘normal’ organisation faced with
this nightmare would make the application”, and that the risk was that, if
the Judge did not recuse himself “and the CA don’t remove him (which
is possible, though I think they ought) then we will have antagonised him
even further than we apparently have already”. I went on to say that while
“making the application has its risks”, it should be made as “we have a
good chance of removing him”. I also asked if he would be on the call as
I was anxious not to give advice which was inconsistent with that of Lord
Grabiner as he “would be presenting the case and [was] the ultimate
adviser”. WITN10650106;
(h) Lord Grabiner replied saying that he agreed with me and that “there's no
difference between us”; WITN10650106.
18 MARCH 2019 CALL WITH THE BOARD OF DIRECTORS
19.1 remember the March call, as I was telephoning in from Argentina where I was
on holiday and found it hard to get through. However, I cannot pretend to
remember much of what was said in that call. I have considered the Note of the
March call (POL00021562) (“the March Note”), and have no reason for thinking
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that the March Note in Items 3 and 4 is significantly inaccurate, although there
are three aspects which I should comment on. Apart from those aspects, I
suspect that I may have expressed myself slightly differently the way in which
some of my remarks were reported.
20.As just mentioned, I should say something about three passages in the March
Note (POL00021562). Two of those passages are in Item 4.1.3. First, it is noted
that I said that I “did not yet know Lord Grabiner’s view of the case”. From his
email earlier that day, I knew that he thought that a recusal application had good
prospects and should be made, and I am sure I would not have said that I did
not know that. Secondly, I am noted as saying that I had not seen “the evidence
from the other side”: I suspect that I said I had not seen the evidence and
arguments on which the Claimants would be relying. Thirdly, the point which I
think I was making in Item 4.3 of the March Note (POL00021562) was that
unfairness was not really a free-standing ground of appeal, but it was relevant
to the argument both on the common issues and the recusal, as, if POL was
right in contending that the Judge’s adverse findings as to the evidence of some
of POL’s witnesses were irrelevant to the common issues, and therefore
unnecessary, that was unfair, and the point could be said to bolster the recusal
application.
21.1 do not recall any question raised or point made by the other people attending
the March call over and above those recorded in the March Note
(POL00021562).
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22.1 am asked if a passage in the March Note POL00021562 (starting “we had a
good prospect ...” and ending “...the evidence from the other side”) accurately
reflected my view and why I considered the application to have such merit. I
cannot positively confirm that the passages quoted precisely reflected what I
advised, but they are consistent with the general thrust of my recollection of the
advice which I gave. In an email (part of WITN10650106 ) sent to the counsel
team very shortly after the March call (namely at 18:36), I said that I had told
the POL Board “that I thought that they would win on recusal, but couldn't
guarantee it, and that, if we were to run recusal we had to grasp the nettle”. I
also mentioned that I had explained that unfairness “was not a free-standing
point”. I said further that “the only reason not to go ahead is fear of the judge
getting more anti- if we lose and fear of bad publicity”, and added that I thought
that “the Judge is a lost cause and if he isn’t he may react better if we stand up
to him” and that “bad publicity [is] seldom a convincing reason”.
23.1 do not recall having had the opportunity to consider any material ahead of the
March call other than that which I had considered when preparing the
Observations, so I am pretty confident that my views expressed on the March
call would have been based on what I knew and had read when I prepared the
Observations.
24.My independent recollection of what was said in the March call is very slight. I
do not recall any views being expressed by anyone else while I was on the
March call. If there had been any unusual concerns expressed, or if there had
been any expressed divergence of views between members of the board, there
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is a reasonable chance that I might have recalled it, and I have no such
recollection. I had no reason to doubt that the POL board members were
genuinely concerned about the issues which they are recorded as having raised
in paragraphs 4.1 to 4.8 of the March Note (POL00021562). I wrote in my 18:36
email that day (in WITN10650106 ) that the questions which I was asked on the
March call “were mostly well-judged and all understandable, but they are very
concerned about the risks, which, bearing in mind they are a public body which
has just had a very nasty, and I think unfair, shock, is scarcely surprising”.
25.On 20" March (while I was still in Argentina) I was informed by email that POL
had decided to make the recusal application - email exchanges
WITN10650107 and WITN10650108. Subsequently, on the evening of 22"¢
March, I received an email from Lord Grabiner telling me that the hearing of the
application had been fixed, attaching his speaking note for the hearing of the
recusal application, and asking if I had any comments on it. I replied later that
evening, making a few suggestions in an email which Lord Grabiner
acknowledged a few minutes later - email exchanges WITN10650109.
Following those email exchanges, I am practically certain that I had no further
involvement in the preparation for the recusal application.
INVOLVEMENT FOLLOWING 18 MARCH 2019 MEETING
26.1 returned from South America at the end of March, and, to the best of my
knowledge, the next time I heard anything substantive about the Bates litigation
was when I was informed in an email on 9" April by Lord Grabiner that the
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Judge had given judgment that day rejecting the recusal application (“the
recusal judgment”) - email exchanges WITN10650110 - and Lord Grabiner and
I had further brief exchange about the recusal judgment, WITN10650111.
27.Meanwhile on 8'/9" April, WBD instructed me to consider the question of an
appeal against the common issues judgment (“the common issues appeal”),
and in particular to “review the judgment and draft grounds of appeal’, to
discuss with Mr Cavender the grounds of appeal, how best to avoid the sort of
criticism POL had received from the Judge, and to “attend a Post Office Board
meeting to advise” on those matters; WITN10650112.
28. There was some further email traffic involving the counsel team between 9"
and 12" April which are exchanges WITN10650113 to WITN10650116. The
effect of these emails, in summary terms, is as follows:
(a) On 9" April, Lord Grabiner wrote criticising the Judge’s finding of waiver
in the recusal judgment, and I replied more fully with “some disjointed
and very preliminary thoughts, referring to “two bad decisions” of the
Judge, namely “not to shut out irrelevant evidence” and “not to control
himself to making only necessary findings” and suggesting “we can
probably only complain about the second”. I described the recusal
judgment as “a bit of a curate’s egg”, with “some silly points” ( “e.g. the
waiver argument and the point that he made some findings in favour of
the PO”), but adding that “some of his points have force — especially our
cross-examining and/or making submissions on some of the points we
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now complain about”. I concluded by saying that “My feeling is that he
has an arguable defence on some of the findings we complain about,
but not on others”, but how many findings that applied to and “how good
his defence is on the ones where he has a defence, I have not had the
time to study properly or to think about” - WITN10650113;
(b) On 10" April, I was copied into an exchange between Lord Grabiner and
Mr Parsons of WBD, in which Lord Grabiner confirmed that he thought
that POL had a “strong case” on recusal and that it had “no real
alternative choice but to pursue appeals to the Court of Appeal against
both the recusal and the common issues judgments”. He added that he
could “not give a guarantee of success in the Court of Appeal” and that
he thought that “Lord Neuberger’s view on prospects should also be
sought by the clients”; WITN10650114;
(c) I was also copied in to emails between the counsel team and Mr Parsons
on 10* and 14 April -WITN10650115;
(d) On 11" April, I had brief email exchanges with Mr Cavender, in which
we agreed to have a meeting the following day at 11.00 am, he referred
to a 2-hour meeting which he had with the POL Board “trying to hold their
hands and explain the appeal strategy”, and I wrote that “their
nervousness about possible outcomes in court is unsurprising in the
circumstances”; WITN10650116.
29.On 12" April, Coulson LJ in the Court of Appeal, made an order recording, as I
understand it, that the Notice of Appeal against the recusal judgment had been
issued that day, and giving certain directions.
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30.I have no doubt that Lord Grabiner and I discussed the potential appeal against
the Judge's rejection of the recusal application (the “recusal appeal”) and
common issues appeal from time to time, but I have no recollection of any
specific meetings or specific telephone discussions. It is clear from emails
passing between Mr Parsons and Lord Grabiner (which I was copied in on),
marked POL000023208, and from the emails in WITN10650117 that Lord
Grabiner and I discussed the case on 12" April and again on 14‘ April.
However, as just stated, I am afraid that I cannot recall those discussions, and
therefore cannot say what we actually said or agreed, or who else, if anyone,
took part. Having said that, I have no reason to doubt the accuracy of what is
revealed in Lord Grabiner's emails of 12" April at 17:50 and 14" April at 11.19
(each of which was said to follow on from discussions with the counsel team
and me and are included in WITN10650117) and my email of 14" April at 11.56
(which is in WITN10650118) and which I had put past Lord Grabiner in draft
form a few minutes before it was sent at 11.51 in WITN10650117.
3
In his email of 12% April at 17:50 (part of WITN10650117), Lord Grabiner
recommended writing to the Court of Appeal saying that an appeal against the
common issues judgment was being prepared, and suggesting that both
prospective appeal applications should be considered together, that the
preparation of the relevant documentation was “extremely urgent’, and
expressing concerns about the possible communications
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32.In his email of 14" April at 11.19 (also part of WITN10650117), Lord Grabiner
recorded that the drafting of the documents supporting the bringing of the
common issues appeal should be undertaken “as quickly as possible”, that
specific instructions were needed to pursue the recusal appeal, which should
not be split from the common issues appeal, if both appeals were to be pursued.
33.In my email of 14" April at 11.56 (WITN10650118), I said that the common
issues judgment gave rise to issues which were legally significant, which I
understood to be commercially important to POL, and on which “I believe, ...
the Judge has gone badly wrong in a number of ways”. I also said that “an
appeal on the recusal aspect raises what I appreciate is a particularly sensitive
issue”. I went on to say that “the two aspects are, at least potentially, connected”
and so “permission to appeal should in my view be given on both aspects”,
although POL could, if they wanted, appeal on only one aspect. I also said that
“it would be quite remarkable” if POL did not get permission to pursue the
common issues appeal, but it would be “less surprising, but in my view wrong,
if permission to appeal on the recusal aspect was refused”.
34.1 do not recall my discussion with Lord Grabiner on Sunday 14" April, and so I
cannot give any details about it. It does appear that there was such a
conversation as it was referred to by Lord Grabiner, in his email that day at
11.19 in WITN10650117.
35.. There were further email exchanges on 14" April —- WITN10650119. The
exchanges began at 13:18 on 15 April with Mr Parsons explaining to the
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counsel team and me that POL was considering whether to appeal the common
issues judgment, and asking Mr Cavender, Mr Cohen and Mr Owain Draper
(who was also on the counsel team) when “the Skeleton Argument for the main
appeal”, by which I assume he meant the common issues appeal, would be
ready. Mr Draper replied at 13:59, making it clear that the drafting was well
under way.
36.Mr Parsons then wrote at 19:53 reiterating that POL still had to decide whether
to appeal the common issues judgment, and asking for two draft letters to the
Court of Appeal be prepared to cover the possibilities of POL (i) having decided
to appeal and (ii) not yet having decided whether to appeal, the common issues
judgment.
37.Lord Grabiner then emailed at 21:00 saying that, in his view, it was “incumbent
on the client to appeal the common issues judgment’ as it “contains a number
of flawed errors of law” (as well as “reveal[ing] the apparent bias”), and if the
Court of Appeal agreed with that, there would be “a good prospect of that
conclusion reinforcing, in the eyes of the Court of Appeal, Post Office’s bias
arguments”. He also said that it should be decided “as soon as possible”
whether the common issues judgment was to be appealed, and that if it was
the Court of Appeal should be asked to consider the two applications for
permission to appeal together.
38.In the final email in the 14‘ April WITN10650119 thread at 22:58, I said that
Lord Grabiner and I were “of much the same opinion”, and that “on the common
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issues, I think the PO has a strong, and in many aspects a very strong, case
that the Judge went wrong in significant respects”, and that “on the recusal
issue, I remain of the view that the Judge should have recused himself on
grounds of apparent bias”. I then explained that, if POL wanted to have the two
applications for permission to appeal heard together, it “should write to that
effect promptly” and that such a letter “would carry significantly more weight if
it was clear that we were seeking to appeal on the common issues”.
39. It looks likely that there was a discussion on 15" April as it is referred to in the
emails in WITN10650119, but I am afraid that I cannot recall whether I was
party to it. In his email on 14" April at 19:53, Mr Parsons referred to “pencil[ling]
in a call at 5pm tomorrow for 30 minutes”, and in my 22:58 email I wrote “If you
want to include me in the 5 pm telephone call that would be fine with me”, and
there was no apparent response. While that does not mean that I did not attend
such a meeting or discussion, unlike discussions between members of
chambers which were often not diarised, such a telephone call or meeting
would normally have been recorded in my diary (as was the case for the
calls/meetings on 12, 23'4 and 24" April 2019, although not for the March call,
which conceivably could be because I was on holiday) and it was not.
40.1 also note that as part of an email thread, in answer to an email attaching “the
Respondents’ Brief Statement of Objections” to the application for permission
to appeal the recusal judgment, I wrote on 15 April at 5.00 pm that POL should
“get going pdq to have the two PTAs heard together’ as otherwise the
application for permission to appeal the recusal judgment would be determined
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on its own — WITN10650120. (For completeness, I should mention that, on 45th
April, the counsel team and I also received from Mr Parsons an email attaching
a note from criminal leading counsel “on the effect of the common issues
judgment on past prosecutions”. I am not sure whether this is relevant or
disclosable, so I say no more about it. It played no part in my thinking, as far as
I can recollect).
4
-On 15% and 16" April, there were (i) emails between WBD, the counsel team
and me confirming the view that, as soon as possible, POL should decide
whether to pursue the common issues appeal and then to write to the Court of
Appeal, followed by (ii) emails between members of the counsel team and me
about writing to the Court of Appeal, and commenting on POL’s delay in
deciding whether to seek to appeal the common issues judgment;
WITN10650121.
42.In addition, Mr Draper wrote a draft letter to the Court of Appeal, which I
approved — WITN10650122.
43. It is clear from emails at WITN10650123 that I had considered the draft grounds
of appeal against the common issues judgment and produced a new draft which
had been considered and amended by at least some members of the counsel
team by 16" April, and that I was considering that amended version by 17%
April. It is also apparent from an email from Mr Draper in that thread that I had
written a Note about the grounds of appeal against the common issues
judgment. I have tried to track the Note down - so far without success.
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However, I have found a copy of what appears to be a near-final draft of the
Note attached to an email I sent to myself - WITN10650144.
44.1 also note that I appear to have been included in an email thread between
members of the counsel team and Mr Parsons about a draft letter to the Court
of Appeal - WITN10650124.
45.Between 18" and 22"¢ April, I had email exchanges with members of the
counsel team, initially about the draft grounds of appeal, and then about the
draft skeleton argument, in relation to a possible common issues appeal. These
emails are WITN10650125, and they do not include the draft grounds of appeal
or draft skeleton argument (which were attached in some cases). I doubt that
those drafts would be of interest to the Inquiry, but, if I am wrong about that,
and the Inquiry wishes to see all or any of the iterations of those documents I
will do my best to have them tracked down. So far at least, I think that only
some of them have been found by the IT team, but I could ask them to have a
further search if the Inquiry so wishes. I should add that it is apparent from the
emails in WITN10650125 that I had oral discussions with members of the
counsel team about the grounds of appeal and the skeleton argument, but I
cannot recall those discussions.
46.Meanwhile, on 18" and 19" April, Mr Parsons informed the counsel team and
me about changes in the POL’s solicitor team and about Employment Tribunal
proceedings which might interrelate with the Bates litigation - WITN10650126.
Page 20 of 33
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WITN10650100
47.1 have considered POL00006513, POL00006514 and POL00006515, in so far
as they refer to advice given by Mr Cavender in an email to WBD on 21* April.
That email was copied to me, and I agreed with it in an email the following day
(see WITN10650128 described in paragraph 49 below). Independently of these
various emails, I only very dimly recall this advice, but, on reading the emails,
the point being made appears fairly clear to me. The point arose in connection
with POL’s proposed challenge to the Judge’s finding in the common issues
judgment that it was appropriate to imply a specific term into certain provisions
of the contracts between POL and the sub-postmasters and sub-
postmistresses (“the contracts”). The point being made by Mr Cavender, and
agreed to by me (and apparently by Lord Grabiner) was that, rather than
conceding that some specific term had to be implied into each of those
provisions, POL should argue that, once one appreciated that there was a duty
on the parties to the contracts to cooperate and that the principle in Stirling v
Maitland applied, there were no need to imply anything further. This could be
described as a presentational issue: rather than saying that it was appropriate
to imply a term, POL should say that, once one appreciated that the general
cooperation/Stirling principles applied, there were no gaps that needed to be
filled by any implied term, let alone a specifically tailored implied term.
48. There were two email exchanges ahead of the telephone conference at 11.00
on 23° April. In the first of those exchanges, WITN10650127, on 22" April, Mr
Cavender told me that there was to be (i) a conference at 11.00 am on 237
April with POL “Legal team”, WBD “and probably Herbert Smith”, and (ii) a
meeting at 8.30 am on 24" April with POL Board in Moorgate.
Page 21 of 33
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WITN10650100
49.In the second exchange of emails ahead of the 23% April meeting,
WITN10650128, there was discussion about the projected common issues
appeal, and the discussion covered the point discussed in paragraph 47 above.
In the last of those emails, I wrote to Mr Parsons about the two projected
appeals. I said that “while the recusal application and appeal are unusual (but
not by any means very unusual) and could be characterised as aggressive
(although I should make it clear that I remain of the view that it is justified)”. I
also said that “there would be absolutely nothing aggressive or unusual in the
Post Office appealing against the Judge’s conclusions on those common issues
in respect of which he found for the claimants”. I then expanded on this in a little
detail, which included saying that “I have been around too long to view the
outcome of any litigation as guaranteed, but I would be surprised if the Judge’s
conclusions against the PO on the common issues were generally upheld”.
50. It is clear that there was a discussion with Mr Parsons (and Mr Watts of Herbert
Smith) at 11.00 am on 23" April, and it appears clear from subsequent emails
that it was attended by Lord Grabiner, Mr Cavender, and me, and maybe also
by Mr Cohen. However, I am afraid that I cannot recall the discussion.
51.In addition to the communications already referred to, there were four email
exchanges on 23% April following the 11.00 am meeting that day. First,
WITN10650129 in which Mr Cavender thanked Lord Grabiner and me for our
“help and support” at the 11.00 am meeting and attached some notes of what
he intended to say at the meeting next day. Secondly, WITN10650130, in which
Page 22 of 33
WITN10650100
WITN10650100
Mr Parsons informed Mr Cavender and me who would be attending the 24"
April meeting. Thirdly, WITN10650131 an email from Mr Parsons sending Lord
Grabiner, Mr Cavender and me the board papers for that meeting. And fourthly,
WITN10650132 an email from Mr Parsons to Mr Cavender and me (and Lord
Grabiner) saying that Mr Watts would be “opposing hearing the two appeals
together” and attaching email exchanges between Mr Parsons and Mr Watts
52.So far as what I was asked is concerned, there is nothing I can add to what is
disclosed by the emails covering that period.
53.The matters which WBD and POL appeared to me to be important when
considering whether to appeal the common issues judgment and the recusal
application refusal were, as revealed by the email traffic, (i) the prospects of
success, (ii) reputational issues, and (iii) on the common issues, the relationship
with Employment Tribunal proceedings.
24 APRIL 2019 MEETING OF THE SUBPOSTMASTER LITIGATION
SUBCOMITTEE
54.POL00006755, which are minutes (“the April Minutes”) of a meeting on 24"
April (“the April meeting”). I recall attending a meeting with Mr Cavender at
POL’s offices near Moorgate, and I have no doubt that that was the 24" April
meeting. However, I cannot recall much about what was said. I have no reason
for thinking that the April Minutes are significantly inaccurate.
55.1 am asked to consider if the April Minutes are inaccurate or incomplete, and to
provide a full account of the discussions that took place at the April meeting
Page 23 of 33
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WITN10650100
and the advice I gave, and to describe the questions I was asked by my
instructing solicitor or lay client. I may have expressed myself slightly differently
from the way in which some of my remarks were reported, but, as just indicated,
the substance of the April Minutes appears to me to be likely to be accurate.
56.As I have little recollection of what transpired at the 24'" April meeting, I am
afraid that I cannot give any further information about what was said at that
meeting. However, if there had been any expressed divergence of views
between members of the board or legal representatives, there is a reasonable
chance that I would have recalled it, and I have no such recollection.
OTHER INVOLVEMENT
57.On 26" April, Mr Parsons instructed Lord Grabiner and me to consider “the
appeal documents” in relation to the projected common issues appeal —
WITN10650133 . On 30" April Lord Grabiner and I each gave instructions as
to where we should receive the relevant documents — WITN10650134.
58.On 8" May, I sent the draft grounds of appeal as edited by me to Lord Grabiner
— WITN10650135. If the Inquiry wishes to see this document, it is available. On
the same day, Lord Grabiner sent an email commenting on the draft skeleton
argument (and that email included a pithy summary in the third paragraph of
the point discussed in paragraph 47 above), and I followed it up with an email
on the same day discussing one or two detailed points about the draft skeleton
argument to support the projected common issues appeal — WITN10650136.
Page 24 of 33
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59.On 11" May, Coulson LJ refused permission to pursue the recusal appeal. As
a result, Mr Foat of the POL legal department emailed Herbert Smith and WBD
seeking advice on various matters including “further consideration of our
approach to the substantive appeal”, and whether Coulson LJ’s reasons for
refusing permission to appeal should “cause us to reconsider our approach”.
This email was copied to the counsel team and me by Mr Parsons who referred
a Note of which I presume that the Inquiry has a copy. I wrote to Lord Grabiner
expressing disappointment and disagreement with the refusal of permission to
appeal the recusal judgment, and discussing the implications for the application
for permission to pursue the common issues appeal — WITN10650137.
60.Mr Parsons’s email attaching Mr Foat’s email led to further email exchanges
on 11% and 12! May at WITN10650138. In the first of those emails, Lord
Grabiner responded to Mr Parsons expressing disappointment at the refusal of
permission, and confirming that he was unpersuaded by it.
6
.I followed up Lord Grabiner’s email by saying, among other things, that
“setbacks in litigation come in two categories: (i) those which should make you
realise that you are on the wrong track, and (ii) those which should stiffen your
resolve”, I said that “on the main interpretation issues, I remain firmly of the view
that we are a category (ii) case”, explaining that my reasons were in the grounds
of appeal and skeleton argument on the projected common issues appeal. But,
I said, “when it comes to the recusal appeal, we are in a more nuanced area of
judgment’ where there is “a greater risk of this being a category (i) case”. I then
Page 25 of 33
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WITN10650100
said that, having let “it stew overnight’, “I remain of the opinion that Fraser J
should have been recused despite the fact that Coulson LJ and Fraser J
disagree”. I then turned to deal with what amendments POL should make to the
grounds of appeal and skeleton argument, and any approach to the Court of
Appeal in relation to the projected common issues appeal, as a result of the
refusal of permission to appeal the recusal judgment.
62.On 24" May, an application was made by POL to the Judge for permission to
pursue the common issues appeal, and the Judge refused permission. This led
to a discussion in email exchanges WITN10650139 and WITN10650140 as to
how POL should deal with the application which it would now make to the Court
of Appeal for such permission, especially given that that application was likely
to come before Coulson LJ. This was not considered further by the counsel
team, as POL decided to instruct fresh leading counsel, Helen Davies QC, in
place of Mr Cavender (and, I presumed and presume, Lord Grabiner and me).
63.On 19" June, it appears that Lord Grabiner spoke to Ms Davies, and sent an
email to me to which I replied: WITN10650141. I followed up that reply the
following day: WITN10650142. On 21% June, Lord Grabiner wrote to Ms
Davies, copying me in, and she responded, whereupon I replied to her —
WITN10650143.
64.As far as I can recollect, I never had any involvement in “issues relating to bugs,
errors and defects in Horizon’.
GENERAL
Page 26 of 33
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WITN10650100
65.As to my impression of POL representatives when I spoke to them, I have
nothing to add to what I have said in paragraphs 24, 53 and 56.
66.1 advised POL on the questions of (i) applying to the Judge to recuse himself
(‘the recusal application”), (ii) appealing his refusal to do so (‘the recusal
appeal”), and (iii) appealing the Judge’s common issues decision (“the common
issues appeal’).
67. It is difficult to take an objective view of a case where one has advised and the
court's subsequent view has markedly differed from one’s own. However, I have
done my best to reconsider as objectively as I can the issues on which I was
asked to advise in March and April 2019.
68.So far as the recusal aspect is concerned, I can see the reasons for my advice
on the recusal application in the Observations and the March Note
(POL00021562). However, my recollection of any detailed points or arguments
which I considered and discussed on the recusal appeal is very slight and so I
have considered the points and arguments afresh, in the light of the relevant
judgments, and the emails and other documents discussed above.
69. My views on my advice in relation to the recusal application and appeal are:
a. Given what is recorded in the March Note (POL00021562), I probably
should have been clearer about the extent of my reading at the March
meeting as WBD were not represented, although POL’s general counsel
was present and I assume that she would have read the Observations;
Page 27 of 33
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WITN10650100
b. Subject to what I say in (a) above, I am comfortable with the advice I gave
in March 2019 in relation to the recusal application;
c. Following the Judge’s rejection of the recusal application, I am comfortable
with what I advised in relation to an appeal against that refusal in April 2019,
in that, viewing the issue now by reference to the facts as they appeared in
April 2019, I am of the view that the Judge should have been recused.
70.My recollection of what I regard as the main arguments of principle raised on
the common issues appeal is significantly better (although I had forgotten most
of the detailed points). Reconsidering the point now by reference to the position
as it was in April and May 2019, I am, as I was then, firmly of the view that
permission should have been given to appeal the common issues judgment,
and I would expect the appeal to have succeeded to a significant extent.
71.\n order to form the views expressed in paragraph 69b and c and in the second
sentence of paragraph 70 above, I have reconsidered the issues in relation to
the recusal application/appeal and in relation to the common issues appeal,
and in that connection I compiled some notes to record my thinking. If the
Inquiry wishes to see those notes, I would of course be happy to provide them.
72. Like anyone who has heard and read about it, I have been deeply shocked by
the POL’s mistreatment over many years of many hundreds of innocent
postmasters and postmistresses. I am sure that it is impossible for anyone who
has not gone through it, to appreciate the full life-ruining horror of what they
have suffered at the hands of POL. And it is particularly shocking for someone
Page 28 of 33
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WITN10650100
who has worked in the law for many decades to see what so many innocent
people have suffered through miscarriages of justice
73.Given that I advised POL in an action brought against it by many of those
innocent and infamously treated postmasters and postmistresses, in addition
to feeling outrage at the history and great sympathy for the hundreds of victims
I feel uneasy when I think, read or talk about the Horizon scandal.
74.However, the topics on which I advised POL were not connected, at least in
any direct way, with the appalling history of mistreatment of so many
postmasters and postmistresses. I was asked to advise on two legal issues,
one procedural, namely whether the Judge should be recused, and one
substantive, the effect of the contracts. Although as matters turned out my
advice did not accord with the view taken by the courts, I was called on to advise
in accordance with my opinions at the time, and that is what I did.
Statement of Truth
I believe the contents of this statement to be true
Signed:
Lord Neuberger of Abbotsbury
Dated: 10 May 2024
Page 29 of 33
WITN10650100
WITN10650100
Index to First Witness Statement of LORD NEUBERGER OF ABBOTSBURY
INo
URN
Document description
(Control number
1.
IPOL00025910
[Bates and Others v Post Office -
(Observations on Recusal Application
IPOL-0022389
IPOL00023097
INote on background to possible recusal
application
IPOL-0019576
ITN10650101
[Email from Anthony Grabiner to David
(Cavender, Gideon Cohen, Rob Smith and
IDavid Neuberger (CC'd), RE: Post
\Office=Preliminary thoughts.
ITN10650101
ITN10650102
Email exchange from Anthony Grabiner to}
IRob Smith, David Cavender, Gideon
(Cohen and David Neuberger
ITN10650102
ITN10650103
Email from David Neuberger to Tom
\Beezer, Anthony Grabiner, Rob Smith,
(Gideon Cohen and David Cavender. RE:
IURGENT [WBDUK-AC.FID26896945)
ITN10650103
ITN10650104
Email from David Neuberger to Anthony
(Grabiner and Tom Beezer, RE: DEN 4
IRe: URGENT [WBDUK-
AC.FID26896945]
ITN10650104
ITN10650105
Email from Anthony Grabiner to David
INeuberger, DEN 5 RE: Post Office-
Preliminary thoughts.
ITN10650105
TTN10650106
Email from David Neuberger to Anthony
(Grabiner, Rob Smith, David Cavender
land Gideon Cohen DEN 6 RE: Post
\Office- preliminary thoughts.
ITN10650106
IPOL00021562
Post Office Ltd Board Minutes of
18/03/2019
IPOLO000095
10)
TTN10650107
Email from David Neuberger to Rob
Smith, Anthony Grabiner, Gideon Cohen
land David Cavender, DEN 7 VRE: PO.
ITN10650107
11]
TITN10650108
Email from Anthony Grabiner to David
Neuberger, DEN 8 RE: Book
ITN10650108
12)
ITN10650109
Email from Anthony Grabiner to David
Neuberger, DEN 9 RE: Speaking note-
IPO (1). docx.
ITN10650109
13]
TTN10650110
Email chain from Antony Grabiner to
IDavid Neuberger RE: DEN 10 Re: Post
(Office. Concerning Fraser J Judgement ofI
Bates v Post Office number 4
ITN10650110
14]
ITN10650111
Email chain from David Neuberger to
Anthony Grabiner re: DEN 11 RE: Post
(Office - concerning Fraser J refusing
ITN10650111
ermission to appeal
Page 30 of 33
WITN10650100
WITN10650100
URN
[Document description
(Control number
15)
ITN10650112
Email from David Neuberger to Rob
Smith, DEN 12 RE: Lord Neuberger
ladvice.
ITN10650112
16)
ITN10650113
Email between David Neuberger and
Anthony Grabiner, DEN 13 RE: Post
Office.
ITN10650113
17]
ITN10650114
Email from Anthony Grabiner to Andrew
Parsons followed by an email from Jane
jacLeod to Andre Parsons, DEN 14 RE:
IRecusal judgement [WBDUK-
AC.FID26896945]
ITN10650114
18)
ITN10650115
Email from Andrew Parsons to Gideon
(Cohen, Tom Beezer, Amy Prime, Anthon
\Grabiner, David Neuberger, Owain
Draper and David Cavender. DEN 15 RE:
Scope of recusal appeal
ITN10650115
19]
TTN10650116
Email from David Neuberger to David
(Cavender, DEN 16 RE: PO.
ITN10650116
20)
IPOL080023208
IMacleod ccing Rodric Williams, Amy
Prime and Tom Beezer re: Appeal - Next
steps and call on Monday.
Email chain from Andrew Parsons to JanelPOL-0019687
21)
ITN10650117
Email from David Neuberger to Anthony
\Grabiner: RE: A1/2019/0855 POST
OFFICE LIMITED V BATES AND
(OTHERS
ITN10650117
22]
ITN10650118
Email from Andrew Parsons to Anthony
\Grainer: DEN 18 Re: A1/2019/0855
IPOST OFFICE LIMITED V BATES AND
(OTHERS [WBDUK-AC.FID26896945]
ITN10650118
23]
ITN10650119
Email between David Neuberger to
Andrew Parsons: EN 19 RE:
\1/2019/0855 POST OFFICE LIMITED V
IBATES AND OTHERS
ITN10650119
24)
ITN10650120
Email from David Neuberger to Gideon
(Cohen and Anthony Grabiner: DEN 20
IRE: 2019 0855 Bates v Post Office
ITN10650120
25)
ITN10650121
Email from Anthony Grabiner to David
INeuberger: DEN 21 Re: Recusal - Cs
(Objections [WBDUK-AC.FID26896945]
ITN10650121
26)
ITN10650122
Email from David Neuberger to Owain
Draper, DEN 22 RE: Revised letter for the
ITN10650122
ICA.
Page 31 of 33
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WITN10650100
URN
[Document description
(Control number
27]
ITN10650123
Email from David Neuberger to Gideon
(Cohen: DEN 23 RE: Common Issues
Appeal Draft Grounds Importance:
Normal
ITN10650123
28]
ITN10650124
Email from Andrew Parsons to David
(Cavender and Owen Draper: DEN 24 RE:
Revised Letter for the CA.
ITN10650124
29]
ITN10650125
Email from David Neuberger to Owain
Draper, David Cavender, Anthony
(Grabiner and Gideon Cohen.
ITN10650125
30]
ITN10650126
Email chain from David Neuberger to
Andrew Parsons, David Cavender, CC
\Tom Beezer and others re: DEN 26 RE:
Post Office Group Litigation - concerning
urther support
ITN10650126
3
ae
JPOL00006513
Email from Andrew Parsons to Jane
jacLeod c.c. Amy Prime, Ben Foat:
Subject 'Catch Up'
IPOL-0017818
32!)
IPOL00006514
(Common Issues List- NTC and SPMC
IPOL-0017819
33]
IPOL00006515
(Group Litigation Timetable
IPOL-0017820
34!
ITN10650128
Email from Andrew Parsons to David
\Cavender.
ITN10650128
35]
ITN10650127
Email chain from David Neuberger to
David Cavender, Owain Draper, CC.
Anthony Grabiner and others re: DEN 27
IRE: Post Office - partial draft skeleton -
concerning letter for the CA
ITN10650127
36]
ITN10650129
Email from David Neuberger to David
(Cavender: DEN 29 RE: Meeting with PO
[Board tomorrow.
ITN10650129
37]
ITN10650130
Email from David Neuberger to Andrew
Parsons, Anthony Grabiner and David
(Cavender: DEN 30 RE: Board Sub-
committee meeting
ITN10650130
38)
ITN10650131
Email from Andrew Parsons to Anthony
(Grabiner, David Neuberger and David
(Cavender:DEN 31 Fwd: Board GLO Sub-
(Committee Meeting 24.04.19
ITN10650131
Page 32 of 33
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WITN10650100
URN
[Document description
(Control number
39]
ITN10650132
Email from David Neuberger to Andrew
Parsons: DEN 32 Re: Board Sub-
(Committee
ITN10650132
40)
IPOLO0006755
leeting Minutes of the Postmaster
Litigation Subcommittee Meeting
IPOL-0018013
41)
ITN10650133
Email from David Neuberger to Anthony
\Grabiner and Ben O'Hanlon: DEN 33 RE:
Post Office Update
ITN10650133
42]
ITN10650134
Email exchange from David Neuberger ot
Anthony Grabiner and Ben O,Hanlon, RE:
Post Office.
ITN10650134
43)
ITN10650135
Email from Lord Neuberger to Lord
(Grabiner re DEN 35 Fwd: Post Office,
draft grounds FINALDRAFT
ITN10650135
44]
ITN10650136
Email from Andrew Parsons to Lord
INeuberger re DEN 36 Post Office
ITN10650136
45)
TN10650137
Email from Lord Neuberger to Lord
IGrabiner re Group Litigation - recusal
application - legally privileged and highly
confidential
ITN10650137
46]
ITN10650138
Email from Lord Grabiner to Lord
Neuberger re Group Litigation - recusal
application - legally privileged and highly
confidential
ITN10650138
47)
ITN10650139
Email from Lord Grabiner to Lord
Neuberger re Post Office
ITN10650139
48)
ITN10650140
Email from Lord Neuberger to David
(Cavender and Lord Grabiner re DEN 40
IRE Post Office
ITN10650140
49
ITN10650141
[Email chain from David Neuberger to
Anthony Grabiner re: DEN 41 RE: Post
(Office - concerning application to appeal
ITN10650141
50]
ITN10650142
Email from Lord Neuberger to Lord
\Grabiner re DEN 42 Re: Post Office
ITN10650142
5
=
52)
.WITN10650143
IWITN10650144
[Email from Lord Grabiner to Lord
INeuberger re DEN 43 Re: Post Office
IPO v Bates: Thoughts on Draft Notice of
Appeal of 10.4.19
ITN10650143
WITN10650144
Page 33 of 33