Reporting the class action against the Post Office at the High Court
It is borderline pathetic that the only reason we are here is because of a campaign by a few committed individuals and ten million-plus quid which has been chucked at a bunch of undoubtedly talented lawyers.
What we saw in the witness box today was two ordinary joes from the Post Office talking freely about the way their organisation operates.
The first witness was Nick Beal, Head of Agents’ Development and Renumeration at Post Office, the second was Paul Williams, Restrictions Advisor for the Post Office.
I have been told (and I don’t set any store by this) that one of the problems with the Post Office is the people who are there stay there. As a result, very little fresh blood comes in at any level, and the way things are done, remains the way things are always done.
Mr Beal started his employment at the Post Office as a counter clerk in 1987. Mr Williams started his employment with the Post Office, also as a counter clerk, in 1979. Now – don’t get me wrong, there is nothing wrong with being a lifer. My dad signed up to the British Army in as a 16 year old and left at the age of 55. He was completely institutionalised, of course, but there’s nothing wrong with loyal service.
Mr Beal and Mr Williams were as natural and convincing as the lead claimants who went before them, and they offered extremely useful insights into the way the Post Office operates.
Their cross-examination was conducted by the dashing Patrick Green QC, counsel for the claimants.
Over the course of 5 hours today Mr Green made several points. I’m going to pick out three and I’d like to deal with the first two together. This is what I felt was the broad thrust of Mr Green’s arguments:
a) The contract Subpostmasters have with the Post Office is weird. It is a sort-of freelance, sort-of employment, sort-of agent, friends-with-benefits kind of deal, which is all touchy-feely-buying-into-the-family-kind-of-vibe at the outset.
b) The obligations of the Subpostmasters under the various documents they are given before they sign up to the job, as they take over the job and as they try to keep on top of the job are many, varied, confusing and all legally enforceable.
Both Mr Beal and Mr Williams were candid on this – there is a lot of fluffy bumf around for potential Subpostmasters when they are looking to sign up (let’s call it the “courtship” phase), and there is a lot of quite serious stuff that some of them may or may not get to see (once they get into the “operational” phase) but when things are going well, both the Post Office and their agents work hard to do the right thing by each other.
Mr Williams was particularly impressive – he said he was certain that potential Subpostmasters would get their full 114-page Subpostmaster contracts at least on the day they joined as Subpostmasters, and likely before they’d committed to joining the organisation. He introduced better standards as the Post Office was “teased away” from being a government department to a limited company and he was certain his department always helped potential and newly signed Subpostmasters when they needed assistance.
He was confident in his department and he was very clear that Alan Bates, who is the man behind this group litigation, would have got his contract (Mr Bates denies it).
By the time Mr Bates was hired, says Mr Williams, it was standard practice to send the contract out with the usual stuff and, being a 114 page document, it was not the sort of thing you would miss from a pack you are sending out. Although Mr Williams didn’t personally send Mr Bates his contract, he was sure his staff would have sent him his contract.
Mr Green, for the claimants, probed and pushed various points with both Mr Beal and Mr Williams and there were times Mr Beal didn’t know or couldn’t remember why things were like they were. There were also times Mr Williams was quite candid in saying things could have been better. I get the feeling that Mr Green was making the point: “it’s a bit confusing and disorientating when you look at all these terms and contracts – and you guys are the experts!”
He landed some blows, but not many. Both Mr Williams and Mr Beal came across as people who wanted to do the right thing at all times.
Now onto Mr Green’s third point:
The National Federation of Subpostmasters, once an actual trade union, now described as an independent organisation, is anything but. It is wholly in the pocket and pay of the Post Office and it is contractually obliged not to do or say anything which could do anything “materially detrimental to the Post Office”.
I want to deal with this in detail because it has really been bugging me for some time. If ever there has been an organisation which has utterly failed its members, it is the NFSP.
I remember years ago talking to a Private Eye journalist (in the context of the Post Office’s Horizon IT system) about the IT cock-up stories they have run down the years. I asked where they got their information about these public- sector IT disasters. He said, “the unions.”
The journalist told me it was never whistleblowers within the IT companies who delivered these programmes, it was membership organisations, who, hearing the complaints of their frontline staff, got these stories into the public domain.
For as long as I can remember, the NFSP’s position has always been that when it comes to Horizon, the Post Office can do no wrong. The moment any Subpostmaster claims something has gone screwy, the NFSP hangs them out to dry. That is a matter of policy. And that was before the NFSP was thrown out of the trades union movement and legally stopped from calling itself a union.
Why, though? To be fair, George Thomson, General Secretary of the NFSP when he gave evidence to the parliamentary select committee back in 2015, was pretty transparent. He told MPs:
“We have to be careful that we are not creating a cottage industry that damages the brand and makes clients like the DWP and the DVLA think twice. We do £350 million a week. We pay out £18 billion a year for the DWP in Government benefits. The DWP would not have re-awarded the Post Office card account contract, which pays out £18 billion a year, in the last month if they thought for a minute that this computer system was not reliable.
“I understand that Mark [Baker the CWU rep for Subpostmasters], for the right reasons, has genuine feelings about it, and Andy [Furey also from the CWU] has as well. But if we are not careful, we damage the brand, we damage the franchise and we cost my members’ ability to sell the franchise. If we lose big contracts, Andy’s members lose their jobs as well. So we have to be careful that we do not create a cottage industry that is built on supposition.”
George Thomson’s point is clear. If we start querying the effectiveness of Horizon, how do his members, when they want to retire or move on, sell their business to the next Subpostmaster who wants to take over? Public doubt over the integrity of Horizon devalues the value of the entire business.
But the logic is… if a few Subpostmasters get suspended, sacked and lose their livelihoods because of what they are saying is problems with the Horizon system… it is a price the NFSP are prepared to pay to retain the value of a branch Post Office for the majority of Subpostmasters who haven’t tripped up yet.
This point is really important because the Post Office are always keen to point out that the “independent” NFSP supports the Post Office on Horizon. And it has pointed out in documents submitted to this litigation that the NFSP are on their side.
If you are in any doubt about the nature of the relationship between the NFSP and the Post Office, take a look at this – it is the current Grant Funding agreement between the NFSP and the Post Office signed in 2015, which sets out the way in which the Post Office will fund pays for the NFSP’s existence and gives it a £1m special projects slush fund to boot.
This agreement is posted on the NFSP website, and was drafted by the same firm representing the Post Office in court today:
5.3 The NFSP shall not engage in the following activities or behaviours:
- 5.3.1 undertaking any public activity which may prevent POL from implementing any of its initiatives, policies or strategies;
- 5.3.2 undertaking or inducing a third party to undertake media or political campaigns against POL;
- 5.3.3 organising or inducing a third party to organise public demonstrations, protests or petitions against POL;
- 5.3.4 organising or inducing a third party to organise boycotts of POL’s business;
- 5.3.5 funding or inducing any third party litigation against POL; and
- 5.3.6 other activities or behaviour the effect of which may be materially detrimental to POL.
I would suggest that if you are a Subpostmaster, and you read that, and you still expect the NFSP to represent your interests, you are fool.
In court today Patrick Green pointed out to Nick Beal that the Post Office has described the claimants’ litigation (in its skeleton argument) as an “existential threat” to the Post Office’s business mode.
He asked: “does this action fall under the terms of [the NFSPs] Grant agreement?”
Mr Beal said he didn’t know
Mr Green asked “so the NFSP cannot support this litigation because of the terms of your Grant?”
Mr Beal did not know.
Mr Green carried on in this mode for some time. Eventually the judge, Mr Justice Fraser said (and I paraphrase).:
“Mr Green, whether your point is that the NFSP are contractually prevented from supporting this litigation, or because they’re being paid too much money by the Post Office to not support it, you’ve made your point.”
To labour the point, if you want some kind of idea about how important Horizon is to the Post Office’s business model, take a read of this document, which was discussed in court on Monday.
It is a chain of emails about Pam Stubbs, the second Lead Claimant to take the stand in this trial. Mrs Stubbs, a Subpostmaster who didn’t have any problems with Horizon until her terminal was moved to a temporary cabin, is being held liable for sudden, inexplicable negative discrepancies showing up on her terminal.
Look at the language in these emails. From Mrrs Stubbs’ testimony, no one at the Post Office has given a monkeys about the problems she is having. But now they do, because she is questioning the integrity of Horizon.
Of course Ms Stubbs didn’t see any of this until it was disclosed to court. Here are a few select quotes:
“This branch has a very large loss which the spmr is attributing to Horizon. We have already had one Flag case on this and this will remain high profile so the data does need to be retrieved.”
“What we’re trying to determine here is whether there is any discrepancy between the information sent in to the Live Service team by the spmr, Mrs Stubbs, and what the Horizon system is showing. She is alleging that her losses of £28k+ are due to problems with the Horizon system after it was relocated into a portacabin last October whilst the branch was being renovated.”
“This is quickly turning into a bit of a problem.
This is a potential fraud where losses occurred when a spmr moved into a portacabin, but ceased the moment she was suspended and somebody else run the office. She did have a clerk, so it could transpire she has nothing to do with the losses. We are talking about £28k, a potential flag case, with MP’s involved. The spmr is questioning the integrity of Horizon.
It looks like contracts/Chesterfield dealt with this themselves, although did speak to investigations. Once I received the paper work from Nigel, it looks like there are numerous activities that have taken place, including somebody sending in an auditor who sat with the spmr for half a day which clearly made matters worse.
I don’t know why we were never approached to deal with this as a criminal investigation in the first instance, perhaps it was felt that it wasn’t at the time. The auditor supposedly witness all transactions for half a day and witness Horizon being short, thereby corroborating her account and also now a potential witness for her… this is high profile. She has also joined the spmr’s fight to question the integrity of Horizon. As it stands no investigation has taken place by us, various intervention has probably complicated this, yet because it is a question of Horizon integrity we can’t simply ignore it, or drop it, but probably have some difficult questions ahead of us in terms of why has it taken so long for us to consider this criminal if this is the course of action we take.”
It’s all here if you want to read the original:
On Horizon, the NFSP and the Post Office are one and the same. It is their business model.
Once a Subpostmaster takes on a Post Office, their entire exit strategy is dependent on the belief that Horizon works and the Post Office will do the right thing by them.
And let’s be clear, Horizon works for most Subpostmasters very well most of the time.
The problems arise when someone has a problem with Horizon. That’s when they are rudely pushed over the battlements into a crocodile-infested moat. With all the shocks to the system that entails.
I’m going to finish by noting what happened in court just before lunchtime today. Mr Patrick Green, QC for the claimants, mentioned in passing that he had been disclosed some important documents by the Post Office last night. The judge stopped proceedings to query this.
Just before lunch, the judge asked about this situation again. He asked Mr Green when his legal team requested the documents, what they were, how many they were and when they were disclosed.
Mr Green said it was 350 pages worth of documents, disclosing 45 different email chains.
The judge bridled (he has given numerous warnings to both parties about the methods they are employing to conduct this litigation). In what I would describe as a very firm manner, Mr Justice Fraser said he was not prepared to deal with a case of this importance in which obviously necessary documentation was being disclosed so late. It was not acceptable.
He then ordered a witness statement from the Post Office solicitors to be given to him by 4pm tomorrow explaining why it took so long to disclose the documents. I expect Womble Bond Dickinson have good reason and look forward to putting that reason, to a judge, in a witness statement.
That’s me done for the next three days. There is no court sitting tomorrow, and I have managed to find gainful employment elsewhere. If you like these blog posts and emails, please consider chucking something into the paypal tip jar at www.postofficetrial.com
I’ll be back at 10.30am on Monday morning.
Have a great weekend.