Court case attempting to get the secret HSS guidance made public
201 tweets
Welcome to cyberspace. I am about to live-tweet a first tier an appeal tribunal information rights hearing between Eleanor Shaikh (pictured) v the Post Office and Information Commissioner.
Eleanor campaigns on behalf of victims of the Post Office scandal. She made the red SOS: Support Our Subpostmasters banner made famous in photos like this.
Eleanor made an FOI request for the secret guidance given to those assessing claims to the largest Post Office compensation scheme – the Historical Shortfall Scheme (HSS). There are a number of people who suspect that the HSS guidance (HSSG) contradicts the assurances…
… of fairness given by the Post Office and the government when the scheme was being set up and run (it is still assessing claims).
The Post Office refused to hand it over on grounds of legal privilege. Eleanor took it to appeal claiming public interest and the ICO "narrowly" sided with the Post Office. Eleanor thought therefore it was worth appealing the decision, and here we are.
The hearing is live. There is a panel of three led by Tribunal Judge Harris (J). Michael Deacon (MD) appears for Eleanor Shaikh (instructed by SMB solicitors), Will Perry (WP) appears for the ICO. Robin Hopkins (RH) appears for the Post Office (PO)
Other members of the panel are Tribunal Judge Worth and a Ms Pepple [?].
MD Eleanor Shaikh (ES) has a background in education and works as a teaching assistant, she has become a campaigner which is rather understating things.
[MD is now giving a brief precis of the Horizon IT scandal]
MD importantly as the Inquiry has already found, senior people at Fujitsu (F) and the PO knew there were bugs, but "maintained the fiction" that it didn't cause problems. Right at the root of this is a lack of transparency. Central theme to the scandal which gave rise to the HSS
The HSS was launched as a Historical Shortfall Scheme in 2020. It was expect to be smaller than it is.
[MD explains how it was set up by reference to the hearing bundle]
It is relevant to note the scope of the Inquiry was whether redress schemes had been appropriately delivered
[MD refers to Inquiry list of issues]
WP has interrupted to say he is hearing loud typing noises (we are)
[it's the judge – she agrees to mute herself]
MD the request made was the for the unpublished HSSG
MD and its terms of reference.
[“Dear Information Rights Team
Please can you release the unpublished Guiding Principles of the Horizon Shortfall
Scheme which the Post Office uses, in tandem with its Terms of Reference, to assess
applicants’ claims.”]
MD – the refusal letter from the PO said there was a s.42 exemption of legal privilege.
It also claimed a s.40 exemption ["as the information sought is said to contain personal data relating to other persons and that disclosure of the same would breach the first data protection principle."]
which has now fallen away
The FOI was made in March 2025. The PO first response refusing the request was in May 2025. ES requested a review and the review result (no disclosure) was given in June.
The review claimed Legal Professional Privilege (LPP -ie the s.42 exemption) it still claimed s40 and added a concern… that if the scheme transferred to government, the documents “may no longer reflect operational principles” and could cause confusion…
ES took the matter up with the ICO who sided with the PO in November last year. According to the bundle "proceeded to balance the public interest factors involved, deciding that the balance favoured the application of the exemption and not disclosure…
… He noted in the course of this analysis that there were
“…very strong and compelling public interest arguments in favour of disclosure”"
[MD is essentially taking J through the chronology in the bundle]
MD in essence the inherent interest in LPP protection is a dominant factor. They also take the view that as these are live docs, they would upset the balance of justice…
… as the HSSG is being used in current disputes.
MD – ES filed her appeal in Dec to the tribunal.
[MD has finished his round up and now turns to the law]
MD if LPP applies, then public interest factors are weighed. I don't think it's in dispute its for the PO to demonstrate…
… why something shouldn't be disclosed.
In relation to the q as to whether LPP is engaged, I will draw your attn to certain principles and ask you to apply them when you make your decision.
It's legal advice privilege not litigation privilege which applies here. There is a test (he's set it out in his skele):
"There is a distinction between a document which may allow an inference to be drawn as to
… the legal advice reflected in it and a document which reveals that advice (Thanki, Privilege,
5th edition (2024), para. 2-022). Further to this distinction, in FSCS Ltd v Abbey National
Treasury Services Plc [2007] EWHC 2868 (Ch), paras. 17 to 18…
… it was held that where a
document does not state the substance of the advice but allows for inference of what the…
… advice was, unless the inference is obvious and inevitable (in which case it is in substance
a statement of the advice or communication) privilege does not attach to such a document."
[quite a difficult period about inference, documents, their contents and how LPP may or may not attach to a document]
MD we are asking if the entirety of the HSSG attracts LPP (if at all) or just parts of it, which may allow for the doc with redactions.
[MD going to some authorities now.]
MD we accept there are circs that some docs must attract LPP, but even if a doc is privileged there is a test of exceptionality and if there is the public interest test. Both are engaged.
[MD now moves to his submissions]
MD issue 1 – whether MSSG and its TOR are covered by LPP – the q is whether those docs in whole or in part contain actual legal advice, and if they are informed by legal advice, could someone infer they are. If it is a possible inference…
… then LPP doesn't apply. If it is an obvious inference – I would ask you to consider whether redaction is a possible way of releasing the doc. There's a q about whether LPP applies and the public interest test.
The public interest test would allow for disc of the whole doc, but it is possible to decide some of it is LPP and then its a q of whether to redact that and disc the rest of the doc. It's difficult to be precise about this without having seen the HSSG.
Even if there is legal advice in the doc, the public interest may outweigh LPP and the whole doc could be released.
MD a supplementary point as to whether LPP is engaged. Sitting with the distinction with the process of obtaining legal advice and whether the doc contains legal advice – there is a distinction between obtaining legal advice and the outcome of it.
MD – does a doc contain legal advice, an inference from it or is it an output which is informed. There is at least a possibility that HSSG is a consequence of obtaining legal advice [and presumably therefore not privileged]
MD the HSS "is one of the main remedial responses to one of the biggest corporate scandals in British history". The idea that process should not be transparent is inconsistent with the remedial action for a scandal premised on a lack of transparency.
[pls not nothing I write is a direct quote unless it is in "direct quotes" – (like the one in the tweet above). Everything else is a summary or characterisation of what's being said]
MD everything should be predicated on an assumption of transparency in this case. The HSSG is an "expeditious substitute for adversarial litigation". That must be an underlying principle here.
If that's right and it must be right, the corollary must be that applicants to the HSS must not be disadvantaged in understanding how their award was arrived at.
That must be right – it should have been right prior to the awards having been made, but it must be right after the awards have been made. The PO says most of these awards have been made. But those people deserve to know the reasoning as to how their awards were made.
In this context its v different from an entity or an ind getting legal advice about their rights in a transaction. The very essence of the HSS process is that is has the applicant at its centre. The PO can get legal advice and it can attach LPP to it, but…
… it must be right to take into acc that this is not a typical situation. It is a compensation scheme. Given what we all know now – given the Inquiry's findings and the whole tenor of this, it must be right to put the applicants at the centre of that. And that must be given…
weight. It's not JUST about those individuals – a total in excess of 14,000 claims.
It's not just about putting people at the centre of this. Related to this is the idea of catharsis – catharsis for the individuals involved, but public catharsis. That must be given weight. There is also the taxpaying element of all this.
Makes a point about taxpayers – from his bundle: "The process by which claims are assessed is important not only to the many applicants themselves, and their…
… families, but to the taxpaying public. As of 3.6.26,
it is understood that £916,000,000 has been paid under the scheme, and a further £7,000,000 pursuant…
… to appeals, in relation to which taxpayer funds have
contributed. Further, the taxpayer element aside, it is important that the public understands how this form of redress works in practice."
[MD clears his throat more frequently than Bob Fleming. I hope's not ill, but he's currently clearing his throat about three times every two sentences. It's quite difficult to listen to.]
MD moved on to the evidence that applicants recorded a high level of dissatisfaction with the HSS, and the suspicion it was neither being applied consistently or fairly. Refers to Inquiry conclusions on that point.
[MD quoting Business Select Committee calling the HSS the "worst" of the PO redress schemes.]
So there's real concern about the way the HSS is being administered.
MD goes back to quoting from Vol 1 of the PO Inquiry report, re HSS:
"By 31 July 2024 at least 4,087 eligible claims had been made in HSS. A total of 2,895 offers in settlement had been made to those claimants of which 2,424 offers…
… had been accepted i.e. nearly 84% of claimants had accepted the offers which had been made to them.313 The figure of 84%, derived from data supplied by Mr Recaldin, is very similar to the percentage of claimants…
… who had accepted offers as derived from the survey evidence (87%). On any view therefore, the available evidence shows that a very large proportion of the …
… claimants who submitted claims before 31 July 2024 and had received offers in respect of their claims had accepted those offers. That statistic is sometimes used …
… to justify or support the conclusion that full and fair redress had been delivered to a substantial majority of claimants, at the very least, whose claims were received …
… by the Post Office before 31 July 2024.
In my view, the evidence before me, taken as a whole, does not justify that conclusion."
Further quote from Inquiry report: "I am persuaded that in the difficult and substantial claims, on too many occasions, the Post Office and its advisors have…
… adopted an unnecessarily adversarial attitude towards making initial offers which have had the effect of depressing the level at which settlements have been achieved."
MD also quotes this Inquiry line re a survey of comp scheme applicants: "59% of those who responded to the survey and who had accepted the offers which had been made to them…
… were either very or fairly dissatisfied with the amount they had been offered. A mere 15% of those responding who had accepted offers had done so because they were satisfied with the amount offered."
MD "there are real concerns out there about how this scheme is operating and that has to be weighed in the balance". It might be said it's water under the bridge, but people who have had settlements need to understand how it was arrived at.
MD we also need to know how awards in HSS are being arrived at now. [takes J to more Inquiry concs about redress schemes] This process is a substitute for litigation, but it should not be litigation, and that goes back to the weight you attach to privilege in this.
MD the Inquiry demanded the PO and govt should explain exactly what they mean by "full and fair" with regard to redress. There is a real q re HSS as to whether that is being fulfilled.
MD there is a public commitment from the PO to give "full and fair" redress and you have to juxtapose that with the concerns being raised through Parliament and other channels.
MD – the "public confusion" point around refusing to disc the docs…. that is a difficult proposition. It risks being paternalistic towards those most concerned. ie we've been doing this "but you may not understand these". If the principles are coherent…
[connection drops out]
[we're back. MD is still talking]
MD want to go to public-facing guidance on HSS. No ind Subpostmaster (SPM) can understand how their award has been worked out – it's forward facing. The fact there is a prospective set of principles set out
… doesn't change what we're looking for. The public-facing principles are 5 to 6 pages long. They set out general principles. The public-facing ToR is very general. It describes eligibility and a process in general terms.
No ind SPM learns how their award has been calculated. For completeness there is a ToR for the independent advisory panel – an aspect of the scheme added later on following INquiry's recommendations. It's a v general document, describes the role of the panel.
An SPM has no way of knowing how their award has been calculated.
MD finally – the Inquiry asked the PO to waive privilege so the Inquiry could be fair. The PO agreed as a general principle to waive LPP over materials created up to 26 Feb 2020
I'm not saying that the PO waived LPP over these docs BY waiving LPP for the Inquiry – these docs were created after Feb 2020, but it has waived LPP to be fair. That implicit recognition must bleed into what's under discussion here.
MD J pls bear with me for one moment…
J yes of course…
MD I've got one point to make – I just want to check a ref. yes. I took you earlier to a point re Mr Hudgell and Business Select Committee… the evidence here documented via q from the chair…
… the median is a 5 x increase in offers after going through appeals compared to original HSS offer. There's something wrong here.
MD summarises "if there is a feasible way" to do it should be done.
MD any qs?
[none from the panel or J]
[suggests a brief comfort break – we are being given 5 mins – back at 1147 when Robin Hopkins (RH) for the PO will stake out their position]
[we're back]
RH – thank you J – this is an appeal about ES request of 27 March 2025, which PO responded to on 2 May 2025. The relevant time for assessment of exemptions is that period – the period spanning date of req to that period.
RH there are 4 docs in scope HSS ToR + ToT for appeal panel. The two docs are HSS guidance and principles (which I'm calling HSSG). Our case for the PO is that these are paradigm instances of s42 LPP exemption
and there is a pub interest in maintaining LPP outweighing that against.
First – engagement of s.42 (1) – MD is hamstrung by the fact he can't see HSSG – that's inevitable, but we say these are paradigms – clearest possible of Legal Advice Privilege (LAP then, not LPP).
This is what LAP exists to protect. If you wanted to explain the principle of LAP you would use these docs. They are "exemplars". We don't need to rely on communications or breadth of concept.
I rely on evidence of Caroline Whitehall she has a witness statement in the bundle. She says purpose of the creation of these docs and their ongoing use it to obtain and apply legal advice in assessing claims. The dominant purpose of these docs is legal advice to PO.
The tribunal can examin HSSG themselves and have done so. It's absolutely clear both these docs attract LAP. There is no distinction between the docs and the LAP they attract. They interrelate – part of same task, same process.
RH if you were against us and ordered us to release these docs. They contain a huge amount of personal data relating to real life case studies. All this would have to be redacted. We demonstrated to the ICO what this would look like and this is a significant undertaking
J you made a page ref to the closed bundle which goes beyond the pages I have
RH how many pages have you got
J 384
Judge Worth I have 510
J oh – okay
RH I'll make the point verbally
J I've now got the revised bundle
RH MD has confirmed ES is not looking for public disclosure of personal data – I'm merely pointing out the exercise that would have to be undertaken if we had to disclose the doc – but our primary case is that LAP covers the whole doc.
It is a paradigm case of LAP.
RH – MD put in place various tests about LAP and inference. None of that analysis applies here. That's not a criticism – he cannot see the MSSG. These docs ARE the lawyer/client comms. They ARE the legal advice. So when MD makes subs…
… about whether and to the extent these docs have LAP, there is no q about extent. All of these docs are covered in their entirety. MD says different weight might be given to diff parts of the docs. That's v difficult to see how that would work…
… to see which parts of the docs may or may not be redacted. We say LAP applies across the board and in their entirety. This is not a case where an extract or paraphrase that attracts LAP. We note the argument about waiver is not being pursued so s42 exemption
applies in full and in their entirety. So that takes us to public interest test. It is to ensure the weight you give to maintaining the s42 exemption reflects the importance of LAP in common law authorities.
eg Darlington: "priv is a fundamental condition on which the whole administration of justice rests"
There is a v powerful inbuilt public interest in maintaining the LAP exemption. "Of all the qual exemptions this is the one with the greatest inherent weight"
There is no exceptionality threshold for disclosure – it needs to be clear and compelling and the practical implication of it it will only be "in the rarest case" that disc of LAP will be justified under FOI.
"So if we are looking at the pans of a balancing scale, PO will already start with v sig weight in one pan of the balancing scale"
PO have pre-loaded weight and add yet more – we are focusing on the time up to 2 May 2025:
– these docs were live at the time of the request and response. certainly still in the process of being directly applied, in active use. Remember HSS was open til 31 Jan 2026.
There are still many applications requiring consideration. These docs were live not only in the sense that they are recent legal advice that we rely on. They were live in the additional sense that they are evolving: "supplemented, edited added to" as the process was ongoing
This adds materially to the need for ongoing exemption. Public authorities must be able to get legal advice without fear the advice is going to be published and used against them unfairly.
In terms of the public interest in maintaining this exemption. MD argued that people should be at the centre of the HSS process and that this puts these docs in a slightly different category in that the pub int in maintaining LAP is weakened.
He says LAP is for co's operating in their own interest, whereas this is a process in the public interest. We accept that getting redress payments right is crucial in the interests of justice. But that's not to say it's a one-sided process.
The public purse is exposed in this case and that's where compensation ultimately comes. It's ultimately a matter of striking the right balance. That's not to say we should make low offers in the interest of the public purse. We must attempt to get the offers appropriate
during the application process and there will be instances where in spite of the many instances of suffering applicants will make claims which do not entitle them to their claimed amounts on the facts.
Another argument relied on by MD in terms of suggesting the weight to be given to privilege in this case. In accordance with the Inquiry certain historic docs attracting priv were disclosed to the Inquiry and we did waive LAP for the Inquiry that does not dilute the importance…
There's a diff between disclosing to the INquiry docs which are historic and attract priv and docs which relate to continued ongoing work. So how Horizon (H) came to affect SPMs is right for the Inquiry to investigate and right for us to give up priv on relevant docs
But HSSG is a live situation and that category difference is very meaningful in this case and the Inquiry was very clear about the docs it was seeking and HSSG does not fall within that space.
The fact the Inquiry considered the docs it did want and did not include HSSG "speaks volumes". We say given the "live and ongoing importance of a lawyer/client safe space" there is a v sig need for public interest in maintaining LAP
There would need to be an extremely weighty public interest in the other direction to outweigh what we have. The logic of ES' case would read across to other compensation schemes. This is one of a number of live comp schemes…
… and there is a real danger of a case rationale which says these issues are exceptionally important and because they are so important the public needs to be able to see the legal advice which informs our decisions…
… and that would be against priv as a principle. MD says this is case specific, but there would be an impact of the transferring of the rationale onto other compensation schemes.
So we say s42 (1) is v weighty in our favour. And the pub interest in disclosure is v weak. MD emphasises the gravity of the injustice arising from H system flaws. Not for us to downplay or diminish what happened. He outlines importance of transparency. We take no issues with…
… that also. But we say transparency was already being sufficiently delivered and any incremental benefit from the disc of these docs would be minimal.
And it's that you need to focus on. What additional benefit would public derive from HSSG being disclosed. On that analysis the answer is no. For a number of points. HSSG is guidance for PO's redress decisions…
… they're not rules or determinors. It is guidance. Not some kind of rules framework. HSSG does not intro any separate or hidden rules – no codified approaches which have not been explained in public forums…
"there's nothing secretive or behind the scenes" about what they contain. They are guidances as to how certain rules can be applied. You can read the docs for yourselves. There is no suggestion there are rules or principles being drawn from that are not already…
… avail. The ICO has done the same and is supportive of PO's analysis. If that is met with "well why are you so sensitive about disclosing it then" – that's a bad argument in this case. V often a client will say…
… I've seen govt announcements on things that affect my business – how does that affect me – give me legal advice. The lawyer then looks at public pronouncements, public case law and puts that together – that doesn't mean someone can come along and say this is all publicly…
… sourced material. Why not hand it over. And the answer is no – you are giving specific advice to the client which should remain confidential. Maintaining LAP is exceptionally important, but not because there is anything "dubious or secretive" in their contents.
Onto the point about applicants not being able to understand how the PO came to assess and make an offer. We already have two docs which set out how the HSS works. They are public. MD says its v general. Of course it is. There are a huge variety of factual circs arising…
.. from each case as it is submitted. I do no accept that makes it a deficient doc. It's entirely appropriate to the nature of the exercise. When it comes to the applicants themselves, MD showed an example in an offer letter and the explanation provided.
I say the letter and its annexes are a detailed account of how their offer was arrived at. The criticisms made of this doc are unfair and don't pass muster. There was a suggestion the published guidance is too general, and the letters are over specific to their case…
Taken together one gets an amply explained document telling them how their offer was arrived at and what they can then do about that offer.
Asking for the legal advice which led to an offer being made begins to undermine the concept of legal advice.
We say HSSG would not take the public or an ind applicant any further forward in understanding how an offer is arrived at.
We're not saying people would not be able to understand what's being done or said. we're not being paternalistic – these docs just would not take their understanding any further forward.
The principles at the heart of this doc are intimately connected to the case study details in the heart of these docs. If one removes the case study details, the comprehensibility of these docs becomes v difficult. If we remove that…
… then it becomes diff to comprehend because then they are devoid of the detail of which they speak.
[RH is now explaining the dispute resolution process open to applicants who don't like their offer]
RH in terms of transparency and scrutiny as well as the options to applicants – for the public- when this request was made the inquiry was looking at how the HSS was operating. So there was a body already looking at the HSS.
… making the benefit of disclosing this doc incremental. MD also raised the criticisms made of the HSS. He took you to crits in the Business Select Committee to suggest ongoing dissatisfaction with HSS. We recognise there will be plenty cases where people are not satisfied
… with their offer and after going through dispute resolution, their offer will be very substantially increased. That does not mean there is a problem with the initial offer. It's based on initial evidence. Then more evidence is submitted and the applicant gets a
much higher sum. eg some assert psychiatric harm, but don't provide evidence. When they understand this from the offer letter, they then go and get the evidence and get a much higher offer. These are case specific points and there's nothing in them which requires…
… the disc of HSSG. MD took you to Inquiry criticisms. We accept them and we have taken on board its recommendations save one [explains why]. Other than that PO has accepted crit implemented Inq recs.
Despite crits Inq did not say HSS should be scrapped or removed from the PO. Nor did Inq say legal advice needed to be scrutinised, nor say legal advice was likely to be cause of the issues of which it was critical.
Inq did not suggest or say PO should forgo its LAP. We come back to the point about incremental benefit of disclosing HSSG. This package of legal advice is about the application of principles on the facts of the given case.
It's not about mechanics of operating HSS. This set of materials, these legal advice docs would not assist in dispelling or understanding any of that.
I don't shrink from saying this is a clear case would do much more harm than good in public interest terms. The general imp of LAP is sufficent in this case. Looking at specifics it's essential.
All I ask on PO's behalf is that at this stage on s42 if you are against us, you invite written subs from the parties as to whether they want to raise other exemptions before any disclosure order takes effect. Any q's?
[panel have no qs]
Will Perry from the ICO (WP)
WP very little to say. You have our response – the Decision Notice (DN) to emphasise a couple of points. We have taken into account the clear public interest in this wider case. (pars 21 – 24 ico.org.uk/media2/e04bch21/ic-421047-j6v0.pdf
And that it is a finely balanced case (par 34 ico.org.uk/media2/e04bch21/ic-421047-j6v0.pdf
WP we say disclosing HSSG is unlikely to confuse or mislead the public. even if there is any merit in this argument it pales into insignificance when considering the very weighty other public interest matters.
WP RH for the PO says LAP docs should only be disclosed in the "rarest" of circs [goes to authorities – Aitchison on the Law Officers case and the de Burgh case]
WP in the ICO's submission this is an isolated sentence should not carry any real weight in the analysis of s42. This case was about s35 of FOIA. [takes panel to other pars to make his point good]
WP what you don't have in Aitchison is any detailed consideration of how s42 operates.
WP so be cautious about placing any weight on rarity of these decisions.
[they're going to break for lunch and then come back for a closed session from which the appellant is excluded.]
J the panel will be examining the material (ie HSSG) and hearing from parties with sight of HSSG. Therefore MD is there anything you'd like
… to be raised by the panel on behalf of the appellant (ES).
MD just that if there are specific pars that can be redacted rather than a blanket refusal to disclose the whole thing can you ask about that.
J thank you
J after closed session, RH and ICO can send gist to MD and client.
RH just to say PO has nothing to add for the close session. THere's nothing we're saving up to advance any distinct subs. I'm here to answer questions and to help ICO if required.
WP to foreshadow what I'm going to say I might need about 10 mins to advance ES's subs in closed session. Might therefore be able to get the "gist" [is this an official legal term?] to MD and ES well before 3pm
[some discussion about possibility of re-starting open session early. J says she is mindful there are observers. I request (via message) to keep to schedule and not re-start early and unscheduled. J says she has to focus on administration of justice but will bear that in mind]
[we break for lunch. 2pm closed session. 3pm – hopefully – open session re-start]
I realise what I am live-tweeting today is very niche unless you are wholly invested in the Post Office scandal story or directly affected by it. That has never stopped me before. But…!
There is ANOTHER appeal happening tomorrow with the same protagonists and same panel of judges re ANOTHER document relating to Project Brisbane. This is a document the PO refuses to publicly acknowledge exists.
Like the HSSG it was created in 2020, likely AFTER the privilege waiver ended. It is an internal, board-ordered shakedown of who knew what when throughout the Bates v Post Office litigation, stretching back to at least 2013.
It could set out lines of culpability within the Post Office right up to boardroom level. It was instrumental in seeing the PO refer three of its own solicitors to the regulator.
It was not disclosed to the Inquiry. The NPCC police Operation Olympos, which can look at any document will only say that in the light of Eleanor's FOI request and my reporting of it, that they are "aware" of Project Brisbane.
But won't say when they became aware nor if they have examined it. This suggests to me it is only down to Eleanor's sleuthing that the cops even know about it.
Tomorrow tribunal is about redacting four lines from an email which refers to what we now understand to be Project Brisbane. The Post Office seems to be arguing that the four lines will reveal the contents of the whole report.
And is going to phenomenal public expense to stop those four lines being unredacted. For more about Project Brisbane, go here:
www.postofficescandal.uk/post/more-info-is-revealed-about-project-brisbane/
If you'd like to stay updated about everything related to the Post Office scandal, please consider joining my mailing list. Subscribers get the newsletter and first alert when any blog post drops.
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Okay back at 3pm!
Just waiting for the open hearing to re-start…
Whilst we wait – @ElCShaikh has kindly put me right on tomorrow's hearing – it's not about four lines in an email. It's about one line. This one…
@ElCShaikh I had forgotten about or not seen this version of the email. The one I am used to had all four lines in the redacted paragraph blacked out. So a big ol' fight tomorrow about one line a document. They're dead keen to keep Project Brisbane secret, they are.
@ElCShaikh Back to today… I've been let in the virtual room, but I can't see or hear anything. The protagonists are all present, but their squares are black.
@ElCShaikh Oh I think we're waiting for the judging panel.
The moment I start to do something else, it will start.
I am going to start doing my expenses. That usually makes something happen.
We are still waiting for the panel.
Hearing re-start put back to 4pm.
[hearing recommences – open session]
J asks MD if he has reviewed the "gist" of the closed session
MD he has seen it at 1549 and asks for a moment
J fine
MD is happy to continue
J says hearing will finish at 4.30pm
MD (for ES) to respond to RH (for PO) – I understand RH's point re public interest being fixed at time of request and refusal…
MD I don't understand him saying we can't consider the Inquiry report – that is relevant – it heard evidence up to Dec 2024 – it was published i July 2025. Business Select Committee also can be taken into account
In terms of what came after that – we should take that on merit and not exclude something arbitrarily.
Similarly re Hudgell's evidence to the Bis committee in 2026 – there's no timescale on the experiences described, and the fact when the concerns were raised…
… is after the FOI refusal you can still take that into account. If you are going to take the Montague point (ie you should only look at the timescale between the FOI request and refusal), there were far fewer HSS cases resolved then so there's a greater public interest.
Re it being the "rarest" case when an LAP exemption is applied. The test is just about balancing. Rarity is about frequency not a threshold.
Re my "catharsis" point about docs being used unfairly against the doc – we don't say this is a purely one-sided process the fact there are individuals at the centre of this is far weightier than concerns about privilege.
Re how the [Post Office Horizon IT] Inquiry saw the HSS. Goes to a section:
"in her witness statement and oral evidence, Ms Gratton expressed the view that the approach of Herbert Smith Freehills to…
… claims was “legalistic”, i.e. in some cases their approach appeared to have been that an offer
to a claimant should be with a view to achieving an outcome which was the least financially…
… detrimental to the Post Office “within a range of fair settlement”.
In her view, a different
approach was needed along the lines of “giving the …
… benefit of the doubt to claimants, even if
that means a greater payout than one that might result from a hard-fought negotiation in line…
… with a conventional legalistic approach.” In Ms Gratton’s view too, Herbert Smith Freehills
was prone to argue, unnecessarily, about comparatively small sums of money."
MD the Inquiry found this "persuasive". That matters to this tribunal.
MD the Inquiry also found "There is a substantial body of evidence produced to the Inquiry which suggests that a…
… first offer made on behalf of the Post Office, once rejected, is sometimes followed by
an offer which is substantially increased. Those who act for claimants who are also…
… Core Participants have demonstrated (primarily by examples set out in their written
submissions) that first offers are sometimes increased very substantially if rejected; they…
… have pointed to increases exceeding £100,000 between first and subsequent offers.
Obviously, such increases suggest that there are instances in which those who have…
… been involved with advising and deciding upon an appropriate initial offer have not been
sufficiently focussed upon making offers in settlement which are “full and fair”."
MD – Herbert Smith drafted the guidance and we say that matters.
MD RH made an argument about protecting public funds and should have LAP on that. There are 3 possibilities. Awards are too low, too high or just right. It's in the public interest to know which.
MD even if the PO has a responsibility to balance the public purse – the public has a right to know how.
MD if this were normal civil litigation we understand that looking at the authorities and principles would be appropriate. But the Inquiry said it should be "full and fair" compensation and knowing what those principles are and how they are applied is in the public interest.
This is not supposed to be adversarial. RH also said that these are live docs and therefore that's a further point to weigh. We say that doesn't add any weight to his argument.
Points about docs in the public domain – that is not information we are here to discuss. If those docs are no different from those in the public domain there's no reason not to publish.
MD – RH made a guarded submission re possibility of reading across from one scheme to another. you can't – you have to look at each scheme on its merits.
If there is a greater level of detail available in HSSG than that which is publicly available it's an argument for disc. RH's point about s36 and other exemptions if they are unsuccessful under s42. We say they should have raised those issues in the first instance.
Raising them now if they're unsuccessful in this appeal allowing them to kick the can down the road even further. RH says the s42 exemption is the weightiest. We don't nec agree with that, but if we succeed in overcoming it, then the highest threshold has already been reached.
J asks panel if they have qs
No questions
RH comes back on quotes from Inquiry re HSS – the suggestion is HSF were behind the pitching of offers and argued about small sums of money. The Inquiry report post-dates the FOI but…
that par is not correct. HSF have not had any role in setting offers nor negotiating them. I can confirm that in a witness statement if needs be.
J thanks MD and RH. Says hearing will end for today and will be back tomorrow to discuss another related case [Brisbane!!!] – will come up with our decisions in due course. Thanks very much. Goodbye.
[hearing ends]
I'm not going to write this into a blog post today – I'll do one tomorrow summarising them both. I suspect tomorrow will have some of the more easily graspable points, especially as we are dealing about one line in an email!
Thanks for reading. If you want to join the mailing list, there's more info in the next tweet. If you can afford a modest monthly donation it will allow me to sit here tweeting niche (but important) hearings and then writing them up after.
