a. The meaning of the phrase ‘Full and Fair Redress’

6.12. At paragraphs 4.303 and 4.304 above I expressed the view that the phrase full and fair redress might mean different things to different people, and that it would be most unfortunate if the awards made to claimants were dependent upon how the phrase was interpreted by different decision makers in particular claims. In my view, there is a clear and compelling need for consistency in the interpretation of the phrase given its centrality in this redress process. I also take the view that such consistency can be achieved only by there being a common understanding of the phrase full and fair.

6.13. That view is reinforced by my experience that in our adversarial system of civil justice, the assessment of financial redress should be considered as an art rather than a science. Even though the assessment of compensation in litigation or arbitration is governed by established legal principles, different judges or arbitrators might apply those principles to the facts of a particular claim so as to produce results which differ, sometimes quite markedly. No doubt, that is why lawyers often speak of “a range of awards open to a judge” when advising clients upon the value of their claims. The phrase “a range of awards open to a judge” itself implies that there must be an upper and lower end of the range. That too, is a concept much explained by lawyers when advising their clients.

6.14. How then is the phrase full and fair to be understood?

6.15. It seems to me that the context is all important. The schemes are intended to provide redress to persons who have suffered disastrous harm, loss and damage on one end of the scale, and comparatively modest financial loss at the other. The decision makers under each of the schemes are obliged to apply legal principles which appear to be identical, or at least very similar to the legal principles which govern the assessment of damages in civil litigation. Lord Dyson’s neutral evaluation in OCS was commissioned on the basis that he would predict likely awards of damages by judges for non-pecuniary losses in claims for the tort of malicious prosecution. The Consequential Loss Principles and Guidance in HSS, the GLO Scheme Guidance and Principles in GLOS and the Assessment Framework in HCRS all conform to the legal principles which would govern the assessment of damages by a judge in claims for breach of contract or various torts. I understand that all these documents (but for the Consequential Loss Principles and Guidance) were, to a greater or lesser extent, the subject of consultation with claimants’ groups and their representatives before being finalised and published.

6.16. When the phrase full and fair was first used in the context of financial redress all claims were assessed. Now of course, the claimants in all the schemes can choose between an award which is assessed by decision makers, or they can opt for the Fixed Sum Offer. The fixed sum on offer in any given scheme may constitute full and fair redress for a particular claimant. All will depend upon the facts of the case. Undoubtedly however, there will be cases in which it is not full and fair – either because it is too much or too little – yet there may be a variety of reasons why the fixed sum in a particular scheme may be acceptable to a claimant. In my view, since the introduction of Fixed Sum Offers, it must follow that the commitment to provide redress which is full and fair must be understood to relate, at least primarily, to claims which have been, and are to be, assessed.

6.17. In all the circumstances, I take the view that the informed lay observer would conclude that the use of the word full was intended to convey to claimants that they would receive financial redress at the top end of any range which it would be open to a decision maker to award. In my view too, that is what the Post Office, the Department and/or the Minister must have intended should be understood by the use of the word full. There is however, the need for further clarification. Each of the schemes make clear the principles upon which the assessment of redress must be undertaken. Essentially, the principles which are articulated in each scheme are those which would be applied in civil litigation in a court in England and Wales. Accordingly, in my view, the range of awards available to a decision maker under the schemes would be that which would be considered appropriate by a judge in a civil claim in that jurisdiction.

6.18. Set against the background, and in the context which I have just set out, I consider that the word full when applied to the phrase financial redress must be understood as meaning that each claimant in each scheme whose claim has been, or is to be assessed, is entitled to receive a monetary sum which would be at the top end of the range of damages which would be awarded to that claimant by a court, always assuming that the facts established as supporting the claim under the relevant scheme, were the facts established before a court.

6.19. What if anything, does the word fair add in the phrase full and fair? In very many cases it adds nothing. In a high proportion of claims, redress which is full in the sense I have explained, will also be fair. Accordingly, in my view, whether an award in any given case is fair must be determined in the round on a case by case basis giving the word fair its ordinary and natural meaning.

6.20. All that said, I can envisage circumstances in which the word fair becomes important. There will undoubtedly be claims in which the claimant is unable to provide written evidence in support of aspects of a claim. The most obvious circumstances in which this arises is when a claimant cannot produce documents because, for example, they have been destroyed, lost or seized by the Post Office and are now not available. Depending on the circumstances in which the evidence has become unavailable, fairness might easily demand that the claimant be given the “benefit of the doubt” as to a particular aspect of the claim. In civil proceedings in a court or arbitration, the judge or arbitrator will usually have the advantage of hearing oral sworn evidence from a claimant about missing documents. That evidence can then be used as the basis upon which to assess the explanation for documents being missing and more generally in relation to the claimant’s credibility on disputed aspects of a claim. The decision makers in the schemes under consideration do not hear oral sworn evidence. Consequently in my view, decision makers in the schemes should be prepared to make proper allowance in favour of a claimant who cannot produce supporting documents, and they should be willing to accept explanations as to why documents are missing unless there is clear evidence which contradicts the explanation. I doubt very much if a decision maker will be acting fairly if a claim, or an aspect of a claim, is discounted by a percentage which is more or less arbitrary simply because documentation which once existed cannot be produced in support of a claim.

6.21. More generally, it is important that decision makers keep well in mind that it is permissible, if fairness demands it, for them to depart from established legal principles in reaching a decision in a particular claim. This principle, which was explained to me by Ms Gallafent KC is not made explicit in any of the documents which underpin the various schemes. However, I have no reason to doubt what I was told by Ms Gallafent KC, and I note that the Department has never sought to contradict what she said.

6.22. In light of the foregoing, I recommend:

2. The Minister and/or the Department in conjunction with the Post Office shall make a public announcement explaining what is meant by the phrase “full and fair financial redress”. Such an explanation should indicate that claimants should be awarded sums which are equivalent to those which they would receive in civil litigation brought before a judge in England and Wales assuming that the judge hearing the civil claims awarded damages at the top end of the appropriate range of damages. The explanation should also include a statement to the effect that, if fairness demands it in a particular case, a decision maker may depart from the established legal principles which would normally govern the assessment of damages in civil litigation.

3. The Post Office, the Department and the Minister shall ensure that all decision makers in HSS, GLOS and OCS/HCRS apply the meaning to be given to the words “full and fair” when assessing the amounts to be awarded to individual claimants.

6.23. I regard the recommendations set out above to be necessary because they will ensure a much greater degree of clarity as to the basis upon which assessed awards overall are made. They will also help to provide a greater degree of consistency. Finally, and most crucially, they will help to ensure that the awards to claimants conform with the commitment to provide financial redress which really is full and fair.