Secret email about the Post Office Scandal. Shh!

Ever felt sorry for a judge?

Before I start on the imminent judgment: a producer for BBC Three Counties called Phil Catchpole has just got in touch.

If you are a claimant in the Beds, Herts or Bucks area and would like to take part in a pre-recorded radio interview about the litigation settlement, please email or call/text 07979 967 585.

Phil produces Ed Adoo’s programme on BBC Three Counties. Ed is really interested in this story. He’d love to speak to you.

The judgment

In just over an hour Sir Peter Fraser will deliver a judgment into the Horizon trial which started in March finished on 2 July (after an unexpected hiatus caused by the Post Office attempting to get Sir Peter sacked).

The trial was a £10m attempt to work out whether Horizon, the Post Office’s computerised retail and branch accounting system is “robust”, as the Post Office contends, or “relatively robust”, as the claimants contend.

As I mentioned at the trial’s conclusion, this inevitably descended into a debate about the meaning of the word robust.

Given the amount of evidence put forward by both sides, coming to any sort of conclusion about Horizon’s efficacy was going to take a while.

This is what Sir Peter told the parties in open court on 23 October about the judgment:

“At one point I had hoped to be able to send that by the very end of October in draft. That is not now going to be possible, but it won’t be much past the early days of November. The judgment is in two parts. There is a judgment and what I have called a “technical appendix” which deals with some of the more technical computer aspects, which an average reader won’t necessarily need or want to read. Both of those documents are going to be of equivalent standing, but you might get them separately, so you can make a start on typographical error review, etc, on one of the documents before you get the other one. But I won’t send them out in draft until they’re both finished. So that’s just to give you an idea.”

As with the first trial judgment, Sir Peter’s self-imposed deadline slipped. The Horizon trial judgment is now being handed down today, five days after the litigation concluded with the Post Office apologising to the claimants and handing over £57.75m

I have offered my early thoughts re the settlement. They haven’t changed much. It is interesting to note the claimants thought they had tied the Post Office up with a binding agreement not to say anything publicly beyond the press release which was sent out at 9am on Wednesday morning last week.

Within two hours the Post Office had broken that agreement, calling up Karl Flinders from Computer Weekly to tell him (no doubt with some glee) that the final settlement was £57.75m.

Last-minute slap in the face

What should have been a day of unbridled celebration was marred as people started to do their own number crunching. Assuming the claimants’ funder’s costs and success fee come to half that amount, the 552 claimants will get an average of £47K each.

Shortly after issuing their less-than-fulsome apology the Post Office reclaimed the PR initiative with a beautifully-timed final slap in the face to both the claimants and their legal representatives.

One senior source very close to this story (but not on the claimants legal team) told me: “Some claimants have said that they would be satisfied with little more than a proper apology from Post Office and the reinstatement of their personal reputations. But many sub-postmasters cleared out their own and their family’s savings accounts and pension funds, and took out huge loans, to make good shortfalls that they truly believe only existed in Post Office’s imagination or where Post Office may itself have inadvertently ‘absorbed’ the missing funds through its own ‘Suspense Accounts’. Others have never recovered from the career blight of having been bankrupted by Post Office, or from receiving a criminal conviction in respect of a shortfall that was never properly investigated and may well have been created by Horizon itself, by Post Office’s own employees or by one of its many clients. Many of those sub-postmasters, and their families and loved ones, have suffered years of life-changing financial and personal damage. Nobody could possibly think that, for them, £50,000 would look like anything other than an insult. Surely, those who have suffered life-changing damage deserve life-changing compensation.”

Stung into some kind of action by this sort of criticism, Freeths’ litigation partner James Hartley put his side of the story to Computer Weekly.

Mr Hartley said “If the claimants had not pulled out of this litigation at this point, it is highly likely they would have got nothing.”

His reasoning was as follows:

“there were another two trials planned and to get through those trials we would have needed more funding. Even if we had got that funding, which is not certain, for every £1m we got from the case, £3m would have to go back to the funders. Every month that had gone on in the case, the value of damages available to claimants would have gone down, to the point where they would have got nothing even if we had won.”

As Mr Hartley explained to me on the pavement outside the Rolls Building back in December last year, English courts do not allow for punitive damages in these cases.

One thing I do take issue with is Mr Hartley’s assertion that claimants always knew they would not recover anything like their full losses.

I certainly didn’t hear that from any claimant, and indeed, the reaction I received from disgruntled claimants in the hours and days subsequent to the Post Office making public the value of the settlement suggests quite a few had no idea.

What has changed? What, after all of this, is left?

Perception. After years of publicly denying the campaigning Subpostmasters have a case the Post Office have apologised and settled. They have publicly climbed down. If the JFSA had a media strategy in the years leading up to this moment, this would have been a huge victory and a vindication of what the JFSA had been pushing for for all these years.

It’s still a pretty big deal, but I wished people would realise that MPs, confidential processes and lawyers can only take you so far. If you ever want to right an injustice, you need to involve the media. It’s very good at speeding things along and shining a light on situations people would rather no one knew about.

Where next?

Those claimants who lost their reputations, livelihoods, reputation and sanity will get a few quid, and can savour the apology. Those who are trying to get their convictions quashed (35 are currently lodged at the CCRC) might now receive some co-operation from the Post Office. I sincerely hope the parliamentarians who were watching this case very closely start pushing for a full inquiry into how the Post Office spent at least £100m over the years denying any claimant Subpostmaster had a case, and then rolling over with the explicit admission that some of them might.

I also hope Post Office executives, past and present, might agree to being held to account by the media for what has happened.

Tony Collins, the man who commissioned the first media investigation into what was happening to Subpostmasters has written a piece setting out the case for a public inquiry here. It’s compelling. And it’s certainly not over.

Right – nearly time for the judgment so I’m off to the High Court to watch it being handed down and see who else turns up. Last time Sir Peter Fraser limited himself to a few administrative remarks. I wonder if, this time, he’ll have anything to say about the conclusion to this lengthy and eye-wateringly attritional litigation.

I’ll be sending you another email tonight!



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