d. Other Issues and Recommendations
6.206. During the course of evidence and more particularly, in written and oral closing submissions, I have been asked to make a number of recommendations which have been formulated on behalf of postmasters and others adversely affected by Horizon.
6.207. Mr Moloney KC and his team suggested that I should recommend that a centre of expertise should be established within government in order that, henceforth, guidance, expertise or a framework would be available to government or other bodies seeking to establish schemes for providing financial redress in circumstances in which citizens had been wronged by the actions of public bodies. Their second suggestion was that the government should create a standing public body to act as a compensating authority to administer future compensation schemes.
6.208. I can see a number of attractions of having a standing public body whose role it is to develop, administer and deliver schemes for providing financial redress to those who have been wronged by public bodies.[342] First and foremost, so far as is humanly possible, such a body would (or should) be independent of the public body or bodies which have caused the harm for which financial redress is payable. One of the difficulties which the Post Office and the Department have had to try to overcome in administering and delivering the schemes is that they are alleged to be wrong doers who caused or contributed to the harm which has given rise to the need for redress. Not unnaturally, their every act or omission in administering and delivering the schemes has been viewed with a great deal of suspicion by many. The second very significant attraction of such a body is that it would promote consistency, not just as between different claimants in the same redress scheme but also consistency between claimants in different schemes.
6.209. I am much less inclined to support “a centre of excellence” if that is a body which is separate from the standing public body referred to above. I would expect that a standing public body, appropriately constituted, would have within it personnel with experience of and expertise in all aspects of the development, administration and delivery of schemes for financial redress. In reality, the public standing body should be provided with all the expertise which is necessary.
6.210. Accordingly, I recommend:
17. As soon as is reasonably practicable, HM Government shall establish a standing public body which shall, when called upon to do so, devise, administer and deliver schemes for providing financial redress to persons who have been wronged by public bodies.
6.211. I next consider the request made of me by Mr Stein KC that I should “retain oversight of the compensation schemes”. As I understand his suggestion, it is that I should convene a hearing or further hearings at some point after I have delivered the whole of my Report and that, in any event, I should require that the Post Office Remediation Unit and the Department should report to the Inquiry and the Business and Trade Committee at two monthly intervals providing updates on the delivery of financial redress. It is submitted that this approach is both lawful and necessary; it is said to be necessary because Core Participants fear, on reasonable grounds, that unless I maintain an oversight role there is a real risk that “the [Department will revert] to a litigious approach when the Inquiry process concludes”.[343]
6.212. I am prepared to accept that I have the power to act as is suggested. I do not consider however, that it is either practicable or even desirable for me to monitor the administration of the schemes over a potentially protracted period of time. There are a number of interconnected reasons why I have reached that conclusion. They are as follows.
6.213. I have no power (and under current legislation will never have the power) to make any binding determinations in any individual cases. The processes in all the schemes are now, for better or for worse, established. I have made recommendations in this volume of my Report which are aimed at improving the administration of the schemes and the speeding up of the delivery of financial redress to individuals. What is now needed to bring the schemes to a close, as reasonably quickly as can be achieved, is appropriate management of the remaining cases.
6.214. I have recommended the appointment of an experienced lawyer to undertake such a management role at the ‘first offer stage’ in HSS. That appointment is, in my view, crucial to the future success of HSS. The appointee will have the opportunity to ‘control’ the conduct of the Post Office and/or the Department and to prevent them being or becoming overly litigious. The powers to control the conduct of the Post Office and the Department are likely to be far more influential than any influence I could exert over them by holding occasional hearings and by monitoring statistical information. In the merged OCS/HCRS scheme, Sir Gary will chair the Pecuniary Panel and, without doubt as his reports to the Department demonstrate, he is far better placed than I could ever be to drive the Department and the remaining claimants towards settlements.
If his best endeavours fail to persuade the parties to reach agreement, there is no reason to suppose that occasional hearings convened by me, and my monitoring of statistics at intervals, would meet with any greater success. If agreement cannot be reached, of course litigation will be the last resort. There would be no role for the Inquiry (or me) if litigation in individual cases occurs. In GLOS the independent panel, ultimately, reaches a decision which is binding on the claimants and the Department. I have no reason to think that the panel will not strive to achieve an outcome which is full and fair in individual cases, whether that phrase is interpreted as I have recommended or in some other way. If the relevant criteria are met there is recourse to Sir Ross Cranston. If, as I recommend, the ‘best offer’ principle is introduced in GLOS there will be no risk to a claimant who seeks a binding decision from the panel or Sir Ross.
6.215. In any event of course, I have gone some way to adopting the approach urged upon me by Mr Stein KC by publishing this volume ahead of the remainder of my Report. If something really troubling occurs in relation to financial redress over the coming months about which I could sensibly make a meaningful contribution, no doubt I would write a short supplement to this volume and, if strictly necessary, convene a hearing before doing so. As my postscript demonstrates, there are clear signs that will be necessary.
6.216. Should family members of postmasters or other persons affected by Horizon (but not currently eligible for redress under any scheme) receive financial redress if they too, were, or are being affected adversely? In the early stages of the Inquiry this issue hardly raised its head. By that I do not intend to suggest that the suffering endured by some family members was not brought to my attention. Nothing could be further from the truth, as I hope Section 3 of this volume demonstrates. However, in those early stages of the Inquiry, there was no overt call for such family members to receive their own financial redress; that came later as the Inquiry unfolded.
6.217. The Department, as the body who would foot any bill for such redress, has studiously refrained from committing itself on the issue. Work was still being done to establish whether such redress should be made available when the final closing submissions were being delivered on 17 December 2024. So far as I am aware, that work continues; if a conclusion has been reached it had not been made public at the time of writing these words.
6.218. I am faced not just with a very difficult issue of substance. I have to say that I struggle to see how the issue possibly falls within my Terms of Reference, however flexibly they are interpreted. If that is correct, what is the purpose of me considering the matter any further? The answer to that conundrum is, ultimately, quite straight forward. I do not think I can duck revealing my own view of this issue. With these preliminary observations out of the way, I offer the following views and a recommendation.
6.219. There would be very significant difficulties to overcome in devising a scheme which commanded universal or near universal approval. I say that for the following reasons.
6.220. First, to provide redress to the family members of postmasters and others directly affected by Horizon would probably mean that many persons would receive redress who would have no real prospect of recovering compensation if this issue were before the courts. A report of this nature is not the place in which to provide an opinion about complicated legal issues. However, the lawyers who read this paragraph will understand the formidable difficulties which claimants who were/are family members would face if they sued the Post Office, Fujitsu or the Department under the law of tort for pure economic loss, physical or psychiatric illness or major distress. A claim under the law of contract would be just as difficult, if not more so, by virtue of the law relating to privity of contract.
6.221. Second, which family members would qualify for redress? It is easy to conclude that spouses and children should qualify, but what about partners, the parents or other family members tied by blood to the person directly affected? What eligibility criteria would be established for other persons affected by Horizon?
6.222. Third, what sort of detriment would be the subject of redress? Would a qualifying family member be entitled to the same heads of loss as the postmaster? Is it reasonable to assume that a family member who has loaned money to a postmaster/affected person in order that they could discharge a debt or debts, has/will recover that sum from the postmaster person because they will recover, or will have recovered it, in the existing schemes? In respect of others affected by Horizon what redress provisions would be put in place?
6.223. Fourth would there be Fixed Sum Offers and, if so, at what level would they be pitched?
6.224. All that said, I can see the argument that if the wrongdoers (here assumed to be the Post Office, Fujitsu and the Department) voluntarily agree to make financial redress to family members, why does it matter that such family members could not succeed in making claims for their losses in the courts? The Horizon saga has already caused there to be exceptions to the way we normally conduct our justice system, which most people would have thought very unlikely before they occurred. I refer of course, to the quashing of convictions by legislation and Fixed Sum Offers in all the schemes. Would affording financial redress to family members be such an unacceptable departure from principle in these circumstances? If that point of principle were to be resolved in favour of family members, no doubt practical solutions could be found in respect of the issues raised in the paragraphs above.
6.225. In my view, there is very likely to be a number of close family members of those who have been most adversely affected by Horizon who, themselves, have endured, and may still endure considerable suffering. Having weighed up the considerations set out above, I consider it fair and proper that such family members should be able to obtain financial redress which recognises their own suffering. Accordingly, I recommend:
18. The Department shall devise a process for providing financial redress to close family members of those most adversely affected by Horizon. Such family members shall qualify for such redress only if they, themselves, have suffered serious adverse consequences by reason of their family relationship with the person or persons directly affected by Horizon.
6.226. Save in respect set out in the recommendation above, I do not consider it appropriate for me to suggest, in any detail, the qualifying criteria which should govern who is eligible for redress, nor the process by which such family members should receive redress. Further, I do not think it appropriate to offer a view about the basis upon which the redress is quantified. These issues were not canvassed before me in any or any sufficient detail at the Inquiry. However, I am sure that with the assistance of the Advisory Board and the internal and external expertise to which it has access, the Department can work out a means of providing redress to close family members which is fair.
6.227. I have ended the last paragraph with the word fair quite deliberately. I have done so for two reasons. First, reasonable financial redress to family members will probably entail a departure from established legal principles. In the schemes I have considered, such a departure is acknowledged to be permissible in order to achieve a result which is fair. Second, I am acutely conscious that many claimants will have received financial redress which is overly generous as a consequence of the Fixed Sum Offers. That is especially so in relation to many of those who have been paid Fixed Sum Offers in HSS. In my view, in those circumstances, it would be most unfair if family members whose suffering has been very substantial, received no redress whatsoever.
6.228. I am not currently of the same mind when it comes to financial redress for others adversely affected by Horizon who do not qualify for redress under the existing schemes. Such impetus as there is for redress for those persons is focussed primarily upon employees of postmasters, or former postmasters who do not already qualify under the existing schemes. However, no such person is a Core Participant in the Inquiry. I have received no written statement or oral evidence from such an employee which describes adverse impacts in any detail. While I readily accept that there must have been employees of postmasters who lost their jobs when the contracts of postmasters were terminated, that in itself, is not a sufficient basis to conclude that such employees should be entitled to financial redress paid for from public funds. Throughout the relevant period, there were in existence employment laws relating to unfair dismissal and redundancy which could have resulted in some redress to employees who were dismissed. However, in the postscript to this report I alert the Department to an issue of some importance which is of relevance to whether there are categories of persons affected by Horizon who are not currently eligible for redress. As will be clear from what I write, the issue has a connection to those employed to work with Horizon but had no contractual relationship with the Post Office.
Restorative Justice
6.229. It is clear from the Case Illustrations in Section 3 of my Report and the Human Impact evidence that I received over the course of the Inquiry, that financial loss was not the only type of suffering experienced by postmasters and their families. The restorative justice programme proposed by Mr Stein KC in opening submissions gives a strong indication of the types of harm suffered by postmasters and their families.
6.230. The call for a funded restorative justice programme grew louder during Phase 7 of the Inquiry. Whilst I was pleased to hear that both the Department and Fujitsu were willing to engage in discussions on this topic, I was concerned about the pace of such discussions.
6.231. I have noted the concerns raised by Mr Patterson that he (or Fujitsu) would not know how to execute some of the ideas put forward as part of a programme of restorative justice.[344] There is no doubt in my mind that any such obstacle can be overcome through meaningful discussions with the Department.
6.232. The meetings held between postmasters and representatives of the Post Office appear to go some way towards ensuring there is continued corporate knowledge about those who are affected by Horizon. The actions taken by the Post Office (references and news articles) are important, but it seems that these actions are only available to the postmasters who wished to have meetings with the Post Office. Extending such actions to the wider cohort of postmasters affected by Horizon would have clear benefits.
6.233. I note from Mr Recaldin’s oral evidence that he made a commitment to providing a report outlining Post Office progress and a programme of measures for restorative justice before the publication of the Inquiry report.[345] The Inquiry was given the assurance that this was very much a live issue under discussion in October 2024. A period of seven months has since elapsed with no update being provided to date. The Post Office has acknowledged as much in a letter to the Inquiry.
6.234. As I have said in the introduction to this section, this volume is being delivered in advance of the remainder of my Report, so that action can be taken as soon as reasonably possible. I can see no reason why the Department, Post Office and Fujitsu need to wait for the remainder off my Report before they are in a position to update the Inquiry on progress which has been made in respect of discussions about a programme of Restorative Justice, and to inform the Inquiry of the outcome of their discussions. Accordingly, I recommend:
19. By 31 October 2025, the Department, Fujitsu and the Post Office shall publish, either separately or together, a report outlining any agreed programme of restorative justice and/or actions taken by that date to produce such a programme. For the avoidance of any doubt, the word Fujitsu in this recommendation is intended to include both Fujitsu Services Limited and Fujitsu Limited.