Reporting the class action against the Post Office at the High Court
Day 13 of the Bates v Post Office trial at court 26 of the High Court Rolls Building has just begun. This walk to work this morning through Inner Temple was rather lovely, but now: let’s get down to business [cracks knuckles] pic.twitter.com/NyurPjWZvn
— Nick Wallis (@nickwallis) December 4, 2018
Mr Patrick Green QC for the claimants is on his feet.
PG “The reality is no one expected the Post Office to terminate on 3 months notice without cause.”
Nothing in this thread is a direct quote unless it is in direct quotes.
PG talking about that in terms of NTC switchover and evidence from Brian Trotter about the reality of that contractual situation as played out. Some SPMRs were not allowed to give 3 months notice – they had to stay on until a replacement could be found.
I’ve already understood more of what they’ve said in the last 15 minutes than I did all day yesterday.
They are now discussing employment case law (Autocleanse) with regards to providing a personal service. This is another massive thing in this case as personal service has a bearing on whether you are a worker, agent or employee.
PG and judge notes the SPMC makes no distinction between individuals and companies who become Subpostmasters.
PG says this goes to a “very close proximity in the nature of the relationship created to an employment situation.”
J “well you argue that and you aregue that the Autocleanse process should be applied”.
PG “I do.”
PG and Judge also agreeing that PG isn’t arguing it IS an employment relationship – as, for instance, SPMs invest money in the relationship – but it is very close and that Autcleanse should apply.
Here is the wiki on the Autocleanse ruling. en.wikipedia.org/wiki/Autoclenz…
The @CWUPostmaster will be very interested in what the judge rules about the nature of the relationship between the SPM and the Post Office
mentions PG has moved on from Autocleanse. On to agency. He starts with the WS of Angela van den Bogerd para 142…
142 “Subpostrnasters are solely responsible for their branch accounts. There is no transaction that enters their accounts without their consent (or their consent by proxy through their assistants)
PG raises 2 issues on this.
2 x occasions when PO employees during audit have entered information into Horizon without SPM knowledge or permission and when Post Office encourages as policy the entering of fake transactions to balance stock.
Both those are raised in the written closing submission.
J you’re characterising it as fake – because it is as if there was a person there making the transaction
PG the actual status of what is in the branch is changed in the accounts to make Horizon match the previous stock deficit to now being a cash deficit when that is not what…
… happened in real life. Or may not be.
That last quote from PG was a direct quote. You can have that. He was speaking very slowly.
We have gone to xe of AvdB – 143 –
PG “she’s agreed – I hope it’s not unfair to call it a fake transaction…”
J – I don’t think this represents a great forensic breakthrough on your part
[[but they agree that fake against real in this circ is different]]
The lunchtime baguette I bought from Pret is quite aromatic.
I am going to close my bag so I stop getting distracted.
They are talking about the “accept now” “settle centrally” and process of disputing a discrepancy.
Judge setting out the “gulf” between the sides:
Claimants say before a dispute can be raised they HAVE to accept the debt which initiates debt recovery…
PO accept that this happens but that the dispute process is robust enough to stop discrepancies which are not the fault of the SPM from being put on them.
PG now talking about the drafting of the “famous” clauses 93 and 94 in the Generic Defence, saying it is “quite…
… carefully worded.”
It is about the investigation function when it comes to a loss and how much of the onus is on the SPM to help the PO work out where a loss may have come from.
PG discussing the tools available to the PO to ivnestigate a loss and how they’re not “wildly keen” to use some because for instance requesting ARQ data from Fujitsu costs them £450.
PG and judge still going through transcript of AvdB’s xe.
an audit is because “we can see something in an account which isn’t quite right”
Now talking about this Detica report which discusses ability to remotely monitor what’s happening in a branch…
Now talking about the Credence database was created by PO to support non-compliance and fraud detection within branches.
POLSAP tracking trends of unusual behaviour.
I think the point PG is trying to make is that the PO does have some quite sophisticated tools that should or could allow it to intervene to help SPMRs before it gets to a suspension/termination situation.
PG There are two facets to this – there is the historical ability and the possibility of gaining insight into the relationship. The pleading is based on “you can’t know – you just can’t know.”
PG “The pure ability to do something or not do it…. might be relevant.” The Post Office doesn’t… on the basis its very expensive. Doesn’t mean they couldn’t do it.”
PG goes back to AvdB’s evidence about the PO’s knowledge of what is going on in a branch.
J it doesn’t advance your argument – the PO is saying activity or unusual situations could lead to an audit being initiated
PG not trying to construct a timing point
J but it was part…
… of your question to Mrs vdB
PG it was
[[he says it’s about making the wider point with the issue of timing removed]]
PG we’re on to the Post Office’s generic defence which I have but haven’t got round to uploading yet.
PG quotes from it: “A TC notification sent by PO to a branch is a proposal not an instruction and it does not take effect unless accepted by the SPM concerned.”
PG AvdB evidence supports this, but “on our case this is demonstrably wrong”
Judge askes why
PG “the accept now button has to be pressed, then you get the three options, make good by cash, make good by cheque and settle centrally”
PG says there is a deliberate choice by the PO to exclude the existence of a dispute button in relation to TC or discrepancy – it was discussed in 2008 and rejected.
PG notes any sum under £150 cannot be disputed AT ALL. He notes helpline tells people that TCs will come down the line so they settle and don’t dispute (even if they disagree) and he notes that with surpluses the situation appears even more confused.
Judge explains his understanding of the settling and disputing process. Claimant agrees it is accurate. Then judge turns to an accepted dispute: “What happens after that… there is quite a lot of evidence about that.”
When I said “accepted dispute” in the last tweet, I meant a dispute over a discrepancy which the PO has accepted is in dispute (raised via a call to the helpline).
Judge: “Really the dispute aspect of Horizon.. is phoning the helpline. Whichever button you press.”
Mr Cavender is on his feet “Yes.”
“The account is the account stated subject to dispute the SPM raises with the helpline.”
J “Yeah, alright.”
PG says this is not the case that the Post Office has been making to date.
PG starts giving examples of how the Post Office’s argument seems to have changed over the course of the trial about settling centrally. This will be an interesting thing to look at it in the transcripts as it is quite a lengthy discussion now going on.
They are reading out parts of Mr Cavender’s xe of Lead Claimant Mr Abdulla.
Mr Cavender objecting. Wants Mr green to explain exactly where his case is different because he doesn’t believe it is.
J says it’s PG’s point to make and he is sure Mr Cavender can make his point in due course.
We are done with TCs and now onto discrepancies.
After a break for 10 mins
PG QC has been making the case that the Post Office’s position on what is the correct procedure for dealing with discrepancies has evolved with the trial. He has quoted at length from Mr Cavender’s xe of Mohammad Sabir to illustrate this.
The judge has not allowed Mr Cavender to respond, but I suspect he is looking forward to the opportunity to respond tomorrow alongside stating the Post Office’s case.
PG Claiming re audits “Factually what’s now being said is just not what happened on the ground at the time.”
Moves on to Liz Stockdale (lead claimant)’s evidence.
We have hit an issue of disclosure re evidence re Liz Stockdale.
Judge has asked for all references in Opus (the court online viewer and transcribing software) to solicitors with specific regard to Liz Stockdale’s case.
A frisson just went through court.
Rather than cack-handedly trying to explain what just happened (as there is a possibility I have missed a detail and I don’t want to attract the ire of my learned friends) I’ll leave this for tonight when I get the transcript.
We’ve moved onto variances in the SPMC (subpostmaster’s contract) and the NTC (network transformation contract). There are many contracts governing the various different types of PO branches.
The SPMC is based on a 1994 drafting and the NTC was introduced this decade.
The focus of the discussion about variance between the contracts is our old friend section 12.12
J – The PO says the nature of the liability is the same. It might not be. Do you contend the versions are different?
PG – we contend it’s very unclear but gropes towards broadly the same point…
They disappear into legal argument about “express wording” “construction”…
PG says the point is that the SPMC pre-dates Horizon and that the NTC is not that different from the SPMC
J agrees, though goes back to construction…
J there is also a quaint little appendix buried in here which deals with things like scales etc
J 12.12 is about losses which
could arise from matters other than looking after the cash and stock.
J in SPMC there is a strict responsibility for cash and stock and a fault based responsiblity for losses
J so are you saying NTC and SPMC is broadly the same in construction
PG on construction in result
J on construction then. And do you reach that conclusion as the NTC being an evolution of SPMC or entirely separate
we move on.
[J really interested in the variance between NTC and SPMC and how the parties intend to ask him to treat it. He is also appearing to reserve the right to ignore either argument]
PG m’learned friend says it’s impossible for the PO to bear the burden of showing how a loss incurred at a branch – we say there’s an anterior question as to WHETHER a loss occurred at a branch (echoes @johnsweeneyroar’s final line in his Panorama “Trouble at the Post Office)
Just to be clear – @johnsweeneyroar wasn’t just mentioned in court! I should have made those square brackets in the last tweet… sorry.
PG notes that the Post Office is arguing in its generic defence that the proper construction of 12.12 would put the legal burden for proving losses on the Postmaster and the postmaster alone.
J accepts this
PG says that they re-iterated this point “bedded it in” for the Common Issues trial.
He is making the point that in the light of what has been heard in the trial the PO’s argument (outlined in 93 and 94 of generic defence and reiterated) re burden of proof doesn’t make sense.
mentions Mr Cavender is on his feet suggesting PG has been misreading the Post Office’s position on this.
PG Might this be a convenient moment?
J How are you doing for time?
PG “We’re in good shape my Lord.
PG “Though it rather depends on the list of questions you have for me.
J Oh it’s very modest….
mentions …. PG I’m grateful.
J in the spirit of last week indulgence, we start again at 2.05pm
The indulgence is that we’ve been given an extra 5 mins for lunch. Which I’ve spent typing that exchange up.
We’re back after lunch.
PG now going over the moment when Angela van den Bogerd was “mistaken” in her assertion she was coming to a piece of evidence cold.
Her WS for the forthcoming trial in March was shown to her and she remembered she wasn’t coming to it cold.
The PO QC has used this in his closing submission as a “stark” example of the claimants refusal to respect the structure of this group litigation.
PG points out that in her own WS Angela vd Bogerd admits the point is not relevant to Horizon.
Judge says this is a secondary…
…point if one at all. He said the point that was put to him was one of AvdB’s credibility and he may have to decide on that.
PG accepts and moves on.
PG now pointing out areas of the PO’s closing submission which criticise PG for asking about reasonable expectations and pointing out that PO QC did exactly the same thing.
J doesn’t think this matters
PG perseveres and judge says so what you’re basically saying is that there are several areas that your witnesses were cross-examined on the same point you are being criticised for cross-examining their witnesses for…
… (earlier said he’s not sure how this “advances the judicial knowledge”)
PG says yes.
J Good – next point. Though that last one was barely a point at all.
PG now saying that PO closing submission wrongly conflates two quite separate provisions in the SPMC re 12.12
J – I’m not trying to be unhelpful but I am genuinely struggling to understand what you are seeking to do. The PO says the losses/gains statement…
…. is full and fair of 12.12. Whether it’s right or wrong
PG it’s very much wrong
J we know you think it is wrong. It’s pretty simpl to work out whether it’s right or wrong. I just want to know why you are drawing it to my attention.
J in terms of criticism of you.
PG the post office is being unfair because we are right and therefore it is not unfair to point that out.
J I understand.
We got to the NFSP.
PO contends in closing submission that the Claimants have launched an attack on the NFSP which is unjustified.
PG says their attack is relevant
J says also the PO raised the NFSP as an organisation which does not support the claimant
J says but whatever point you make about the NFSP can only relate to the NTC as that is the context in which it was being raised. Not the SPMC.
Onto PO view of the Lead Claimants evidence made at the back of the PO written closing.
par 573: “But in any event, it is clear that Mr Bates did receive the SPMC on 30 March 1998, together with the notification that his application had been successful. …
… His protestations to the contrary (and insistence that he did not get a copy until August 1999304) were implausible”
PG says the evidence on which this is made is unreliable.
J understood. Remind me your case on Mr Bates contract of formation would be when?
PG 31 March 1998
In relation to Mrs Pam Stubbs: 583 “Mrs Stubbs understood she would be bound by (and very probably physically signed her agreement to be bound by) the terms of the SPMC….”
“…. She largely knew, in any event, broadly what those provisions said. She very likely had a copy, and in any event had every opportunity to obtain a copy. She cannot resist the incorporation of any of the disputed terms.”
J she probly had of copy and could have asked for one
J it’s wrong to say there’s no mention of the letter, because there is. Your view on her contract formation?
PG day after her husband’s death 4 Aug 1999
J noting that it was the date she remembered them taking her banking details so she could be paid, also that she got paid PAYE – was taxed at source like an employee and it took her quite a while to sort it out.
They move on to 589 “Moreover, even Mr Sabir’s evidence that it was possible he had not received a copy of the contract did not stand up….”
“… His apparently weak grasp of English in oral evidence (which was notable for its variability) should not be confused with a lack of intelligence. It was implausible that, as a commercial man making a significant investment…”
“… (in conjunction with a partner), who was expecting a contract, he would not have asked for a copy of the contract if one was not in fact enclosed. “
J noting for the record there is a gulf between the parties on Mr Sabir’s understanding of English, but suffice to…
… say they all agree it is “not his mother tongue.”
PG says there is a difference to the PO view of his ability to remember what happened to him than the claimants.
J so what you’re saying is that you would like me to prefer your reading of Mr Sabir’s evidence…
… to the Post Office’s?
PG yes my Lord. In fact I’d like you to do that with all the witnesses.
J I thought you might.
PG finally notes that Mr Brian Trotter’s evidence (a Post Office witness) or indeed Mr Trotter is not mentioned once in all 220 pages of Post Office evidence. [he did not cover himself in glory]
J now has a list of questions for PG.
First one is a typo in an xe of Mr Beal which suggests the opposite to the line of questioning. Agree it is a typo that PG has missed. J isn’t sure it’ll be important but wanted to check.
J knows that both in opening and through xe of AvdB you put different internal PO docs that demonstrated what could be said to be internal knowledge or discussion of Horizon causing problems, throwing up discrepanvies etc.
J I don’t think there’s a single list anywhere of these problems?
PG There isn’t
J I would like a list of them. No submissions, gloss. Just dates. With references to where they’ve been mentioned in the trial
PG yes my Lord
J letters to/from Mrs Stockdale?
PG I’ve got them
J put them in part two of that list. Just what they are…. dates… No submissions.
Mr Cavender on his feet “are these agreed documents”
J I just want anything that has been mentioned in the trial. I am not asking for anything that hasn’t been referred to by either of you
… or put to a witness etc
J final point: I know that of the docs that were disclosed to the LC there was some disagreement about the being made part of the trial bundle. Notwithstanding that… if I look at a doc that is opposed what attention should I pay to that
PG we say none
DC we say my Lord you should be careful as to whether more weight should be given to Horizon or Breach… we say no findings of fact or comment on anything that relates to those trials.
DC so when it comes to findings you shouldn’t make any comment until it comes to those particular trials.
J is that right? [makes legal point about construction of PO case]
DC no I think that’s mistaken
J well it might be better to deal with that tomorrow.
J says your case makes an inference on the reliability of Horizon. I’m not going to ignore that whole part of the case.
DC we are not asking you to. He explains what he is asking him to do
[[legal argument going over my head again]]
From the discussion the judge and the PO QC are having I have a feeling tomorrow, when the PO QC stands up, it is going to be a lot like Monday.
J takes it back to the original point that when he sees anything “opposed by x” in the evidence he should disregard as a historical spat about the admissability of evidence fought out before this trial started, other than to be mindful of how…
… any findings he might make in relation to that evidence might impact [prejudge, maybe?] on the upcoming trials. Is that right?
PO QC yes.
Judge rises. That is the end of today.
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I am going to collate and send the live tweets out to subscribers and put them up on postofficetrial.com
Today was far better than yesterday and there were some very interesting moments. I’ll get you the report as soon as I am able.
Thanks for reading. #postofficetrial