Court of Appeal – decision day

Hello secret emailers

It’s hard to overstate how important today is to the Bates and others v Post Office litigation.

At the Court of Appeal open hearing last Tuesday (12 November), Lord Justice Coulson indicated he would deliver his decision on the Post Office’s application to appeal the first (Common Issues) trial judgment by midday today.

Either he will send the Post Office packing, in which case everything in the first trial judgment stands.

Or he will allow one or all of the Post Office’s grounds for appeal to proceed to full appeal before three judges at the Royal Courts of Justice at a date some time next year.

Remember, in the deathless words of Helen Davies, the Post Office’s QC: “I am trying to show my Lord not that I am right… but that there is a reasonable prospect of persuading this court that … the judge… went too far.”

It is a low-ish bar.

For you friend, the appeal is over

Either decision (allowing or not allowing the application) has implications for both parties. Not allowing the application strengthens the claimants hand, whatever the Horizon trial judgment.

If the appeal is not allowed, the Post Office is going to have to make sweeping and costly changes to the way it does business with Subpostmasters, as the the burden of proof for alleged losses switches to the Post Office, not the Subpostmaster.

The days of marching in like the gestapo, suspending someone on the spot, withholding access to their paperwork and then trying to string them up on criminal charges would be over, unless the Post Office has what it believes is convincing evidence of criminal activity. And if the first trial judgment is allowed to stand, mismatching figures on a Horizon computer screen will not be enough.

For the Post Office, if the application to appeal is declined, they are potentially heading towards a breach trial in which, given what we already know, there will be strong evidence that there is a significant and unlawful gap in way they some Subpostmasters were treated. This is where the multimillion pound awards come in.

Of course if Lord Coulson allows any of the appeal application, the Post Office has a lifeline, and a lot of things remain in play. They can reduce the amount they might be offering at the mediation (they have already indicated they are going to attempt to settle) and can suggest to the claimants they might want to take a smaller amount of cash and run, rather than suffer long, drawn-out months of uncertainty, which could eventually end in a rather limp victory, or defeat.

I have no idea which way today will go. None whatsoever. But I hope to be one of the first to tell you.

For the birds

Because it is designed for the quick dissemination of news, I’ll put what I know on twitter as soon as I know it, well before I put up a blog post or send you a secret email, which may well be tonight, given I am heading into 5 News this morning for a day shift. So if you want to know sooner rather than later, head to twitter.

Twitter is just a website. All you have to do is click here and you can read my twitter feed. You don’t need to log on. It really is that simple. Try it now if you like.

It may well be that the claimants will be informed by email before the news is made public. If you are a claimant and you do get that email, I’d be grateful if you could forward it to me so I can tell the non-claimants!

When is the Horizon trial judgment coming?

I have given up guessing. I think Vladimir and Estragon were litigants.

Enjoy your Friday,

Nick