Reporting the class action against the Post Office at the High Court
Pre-Horizon trial transcript and judgment
Here’s something to get you in the mood for Monday.
On Thu 14 Feb I attended a pre-trial review at the High Court’s Rolls Building (read my immediate notes here). This was essentially an administrative affair, save for an application by the Post Office to disregard the evidence of Ian Henderson, a director of Second Sight.
Ian Henderson was actively involved in the mediation scheme. He regularly took Second Sight’s place on the Working Group (chaired by the former Appeal Court judge Sir Anthony Hooper) alongside the Post Office and the JFSA.
In 2015 he gave evidence to the parliamentary select committee inquiry into the Horizon mediation scheme whilst sitting next to Paula Vennells and Angela van den Bogerd (that is very much a transcript worth reading), and he gave Panorama an interview, also in 2015.
The Post Office’s argument was that, in effect, Mr Henderson’s evidence was too expert, and the judge should not set too much store by it as Mr Henderson clearly knew exactly what he was talking about.
If this seems like a nonsense, read the transcript below. In defence of the Post Office, there is a CPR (Civil Procedure Rule) which specifically bans more than one expert witness being used by each party (CPR 35.1, specific paragraph fans).
The Post Office’s argument was that Mr Henderson is an expert witness, and as the claimants have already appointed an expert witness to look at Horizon (Jason Coyne), Mr Henderson’s perspective should be ignored.
You may remember the short shrift Mr Justice Fraser gave the Post Office during their attempt to strike out vast amounts of witness evidence in the first trial. You can read that ruling here (it is highly entertaining), but here are a few choice quotes from the judge at the time:
“The application by the defendant to strike out this evidence appears to be an attempt to hollow out the Lead Claimants’ case to the very barest of bones (to mix metaphors), if not beyond, and to keep evidence with which the defendant does not agree from being aired at all.”
“When one considers the purpose of this Group Litigation, attempting to strike out such evidence now on the grounds of lack of relevance at this stage of the proceedings to the Common Issues seems to me to be rather puzzling. Mr Green QC [JFSA counsel]… submitted in his written skeleton that the application “appears to be an attempt by Post Office to secure an advantage at the Common Issues Trial by selectively tailoring the evidence which the Court is to consider.” I accept that submission too; the application certainly gives that appearance.”
“I […] suspect that in the background to this application the defendant is simply attempting to restrict evidence for public relations reasons…. Whether this “generates adverse publicity” for the defendant is not a concern of the court, as long as the evidence is properly admissible… which I have found it is. The court is not a marketing or PR department for any litigant, and the principle of open justice is an important one.”
As you may have already concluded, the strike-out application didn’t get very far.
So when it came to the attempt to have Mr Henderson’s evidence disregarded the Post Office was at considerable pains to tell the judge this was not a strikeout application. In the words of the Post Office barrister, Tony de Garr Robinson:
“my Lord, the issue that arises in relation to Mr. Henderson is really extraordinary. Before I embark on my submissions I would like to be clear about what Post Office is not doing. Post Office is not seeking to exclude all his evidence. It just wants to limit his evidence to proper facts which can be properly dealt with within the confines of this time constrained trial. I am not saying that he cannot be called. Bearing in mind that your Lordship, I am sure, will be aware, bearing in mind what happened in the last strike out application, I cannot tell your Lordship how anxious and reluctant my clients are to be even addressing your Lordship on this question but they feel they have no choice.”
Mr de Garr Robinson goes on to make a lot of (I thought pretty strong) arguments about why Mr Henderson’s evidence should, if not be struck out, given very little credence by the court.
The Post Office barrister held forth for some time, punctuated by some moments of humour provide by the judge:
“MR. de GARR ROBINSON: …my learned friend says in his skeleton argument that does not apply in this case because of the Multiplex litigation, which I am sure is a case your Lordship is more familiar with than me, that huge piece of litigation that rumbled on for many years about the Wembley Stadium. My learned friend relies on….
MR. JUSTICE FRASER: I even know the number of different pieces of steel because someone told me that.
MR. de GARR ROBINSON: I was going to ask your Lordship whether you needed me to take you to …
MR. JUSTICE FRASER: I really do not.”
“MR. de GARR ROBINSON: I should tell your Lordship it is a report to which Post Office has serious objections.
MR. JUSTICE FRASER: Post Office seems to have objections about a whole raft of things from time to time….
MR. de GARR ROBINSON: The submission I was making to your Lordship wassimply seeking to make it clear that the contents of the Second Sight report are hotly inissue.
MR. JUSTICE FRASER: I do know that.
MR. de GARR ROBINSON: I am grateful.
MR. JUSTICE FRASER: Thank you for reminding me.”
Mr Green, the claimants’ QC, then stood up and pointed out the Post Office had a bunch of people who were witnesses and experts and who could therefore be described as expert witnesses giving evidence for them, employing the deathless phrase “what is good for the goose is apparently not good for the gander.”
Mr Justice Fraser agreed. Mr Henderson will be heard in court during the forthcoming Horizon trial.
I have posted the transcript and the judgment (in the middle of the transcript, in bold) below.
There is loads in the transcript worth reading. I much prefer them to wading through legal documents as people are forced to communicate in a way that makes sense to the ear. And they can be challenged on their arguments, which is what happens below.
Right at the very bottom I get a mention from the judge by name, which, as I said at the time, woke me up bit. It means I will get daily unperfected transcripts of proceedings (usually between 6 and 8pm on the day they are created) which I will attempt to post up the same evening as the trial is progressing.
MR. GREEN: May it please, your Lordship, my learned friend Mr. de Garr Robinson and Mr. Owain Draper appear for the Post Office this time. The suggested agenda I sent through to the court, which your Lordship may have loose —-
MR. JUSTICE FRASER: I have it here.
MR. GREEN: There are only eight items there of which the last three, I think, are hopefully uncontroversial. There are some differences on timetable and differences on one point of evidence, my Lord, so it really falls in a very narrow compass. The key issue on the evidence is the evidence of Mr. Henderson and that is a six-page witness statement double-spaced where the defendant accepts he gives some evidence of fact but objects to – I am so sorry, it is in volume 2 of 5, tab 5. I think all the other witness statements are one-and-a-half line spaced, his is two-line spaced and only goes on for six pages with a signature on the seventh page. Your Lordship will see at page 1, paragraph 1, he has an introduction, and over the page he explains that he is a director of Second Sight, he was appointed —-
MR. JUSTICE FRASER: I have read it.
MR. GREEN: You have read it, so your Lordship is familiar with what he says. YourLordship probably noted that at paragraph 2.2 he talks about a meeting he had with Gareth Jenkins, the Fujitsu lead engineer, and what he investigated about remote access thereafter. At 2.4, just so your Lordship has an example of what is complained about, over the page on page 4, the defendant does not complain about the second sentence in 2.4: “Mr. Jenkins provided me with some sample XML data shortly after our meeting and I subsequently have been able to reverse engineer,” does not complain about that but does complain about the first sentence: “My view was that the key to understand transactions was to be provided with access to raw transaction data known as XML reports.” That gives your Lordship an example of what is complained about; similarly, the reference to “my analysis at the time”, at 2.5, and the word “concern”.
MR. de GARR ROBINSON: I wonder if it would be a good idea for me to take your Lordship through this because my learned friend’s understanding of what I object to may not be the same as mine.
MR. JUSTICE FRASER: All right. Bear with me one second. Mr. Green, I have actually read this statement in quite a lot of detail.
MR. GREEN: I am grateful.
MR. JUSTICE FRASER: I am going to hear from Mr. de Garr Robinson in however muchdetail he wants because he has asked me for a ruling on it. You do not need to read that.
MR. GREEN: I am most grateful. I was only trying to highlight a couple of things.
MR. JUSTICE FRASER: As you pointed out – and I have read all of the statements – it is nota long statement. I have actually read this one twice because it is a particular focus of what Mr. de Garr Robinson wants to do, and I agree we should deal with this point first. It may or may not have an impact on trial timetabling anyway but it seems to be, possibly, subject to something that I am going to tell you which will be about the way the experts are going to be dealt with, this might be the only controversial thing today. I will deal with this first.
MR. GREEN: I am grateful.
MR. JUSTICE FRASER: Mr. de Garr Robinson.
MR. de GARR ROBINSON: My Lord, thank you.
MR. JUSTICE FRASER: Am I right that this may well turn out to be the only contentiousthing today?
MR. de GARR ROBINSON: Two points of particular importance on this side of the court areMr. Henderson, the proper scope of his evidence, and also how much time we are allotted for the cross-examination of Mr. Coyne, the IT expert called by the claimants. That is a matter that we regard as extremely important.
MR. JUSTICE FRASER: I know. You are going to get possibly less time than you expect but more time than you probably need, but we will deal with that separately. So, Mr. Henderson, fire away.
MR. de GARR ROBINSON: Mr. Henderson, my Lord, the issue that arises in relation to Mr. Henderson is really extraordinary. Before I embark on my submissions I would like to be clear about what Post Office is not doing. Post Office is not seeking to exclude all his evidence. It just wants to limit his evidence to proper facts which can be properly dealt with within the confines of this time constrained trial. I am not saying that he cannot be called. Bearing in mind that your Lordship, I am sure, will be aware, bearing in mind what happened in the last strike out application, I cannot tell your Lordship how anxious and reluctant my clients are to be even addressing your Lordship on this question but they feel they have no choice. On several occasions my clients have invited the claimants to identify proper factual propositions that are relevant for which the statement can properly be relied upon with a view to agreeing those facts, but that has all been rebuffed. So, that is why we are here today.
What the claimants are saying is that they are entitled to adduce both factual and expert evidence from Mr. Henderson. Your Lordship will see that from paragraph 37.3 of my learned friend’s skeleton.
Could I ask your Lordship to imagine this situation. There is an IT dispute raising expert issues. Permission is given for each side to call one expert on IT issues. The experts on both sides review all the material, they identify the decisions, the opinions that they have, having had access to anything they want to see, including expert reports deployed in a previous trial raising a similar issue. So, the experts reach their conclusions on the strengths and weaknesses of the IT system, whatever the issue may be. The claimant is not satisfied with the report from his expert. He wants to rely on the report given by the original expert in the original hearing. Obviously, he cannot call him as an expert because he only has permission for one expert and he has already exercised that permission. So, the question arises, can he call the other expert on the basis that he has a few facts to speak to and then use the fact that he has a few facts to speak to, to incorporate by reference some or all of the opinions that the other expert gave in the previous trial so that he can then bolster his case, getting the expert to recast his opinions perhaps as facts, and so on.My Lord, I say that my submission is, obviously, he cannot but that is what the claimants have done with Prof. McLachlan, it is exactly what they have done with Prof. McLachlan.
MR. JUSTICE FRASER: He is out of the picture now?
MR. de GARR ROBINSON: Your Lordship says that but —-
MR. JUSTICE FRASER: He is not being called.
MR. de GARR ROBINSON: I thought that was the position but I do have a small concernabout paragraphs 7 and 8 of my learned friend’s skeleton argument which does not saythat he will not be called. It says that it is likely he will not be called.
MR. JUSTICE FRASER: I had understood —-
MR. GREEN: My Lord, if it helps, we are not going to call him.
MR. JUSTICE FRASER: You are not.
MR. de GARR ROBINSON: That is very helpful. I was going to ask for clarification.
MR. JUSTICE FRASER: My understanding is he is definitely not being called but it might beI was not understanding the phraseology in that skeleton.
MR. GREEN: That was my understanding as well until I saw the skeleton and saw the —-
MR. JUSTICE FRASER: That is confirmed. If that position changes Mr. Green is actuallygoing to make an application explaining why but for the moment he is out the picture.
MR. de GARR ROBINSON: My Lord, let’s continue with my hypothetical situation because,of course, it does not just apply to an IT expert, it could apply to a forensic accountant expert as well. It is worth reminding ourselves why the claimant cannot call the expert. If I could ask your Lordship to look very quickly at the White Book, Vol. 1, page 1126. These are old adversaries to all of us. CPR 35.1: “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.” So, there is a general principle that the court does not let expert evidence in unless it is required and if we go forward to page 1129, again all these are definitions of an expert as someone who has been instructed to give or prepare expert evidence. We know that expert evidence means opinion evidence.
Going forward to 35.4(1): “No party may call an expert or put in evidence an expert’s report without the court’s permission.” The combination of those rules is clear, absent court permission to give expert evidence, no such evidence can be given. It is how one controls the proceedings in court and keeps trials within a manageable scale.
Now, my learned friend says in his skeleton argument that does not apply in this case because of the Multiplex litigation, which I am sure is a case your Lordship is more familiar with than me, that huge piece of litigation that rumbled on for many years about the Wembley Stadium. My learned friend relies on —-
MR. JUSTICE FRASER: I even know the number of different pieces of steel because someone told me that.
MR. de GARR ROBINSON: I was going to ask your Lordship whether you needed me to take you to —-
MR. JUSTICE FRASER: I really do not.
MR. de GARR ROBINSON: Your Lordship will recall the principles that are articulated in that particular decision. Mr. Taylor, who gave factual evidence, he was there, he was involved in many of the decisions, he knew why they were made, he was able to explain why they were good decisions or why they were bad decisions, he was a relevant witness who had an involvement in the central facts in dispute. He also had views. He was a professional man who knew what was going on.
MR. JUSTICE FRASER: It happens a lot in the Technology and Construction Court business.
MR. de GARR ROBINSON: As indeed is said in the judgment. What was fashioned in that case, and I understand it is referred to, it has become a locus classicus and it is referred to quite a lot because this problem does arise quite a lot, particularly in TCC cases, is a principle that although CPR 35.1 is fine, there is an exception. It is where you have someone who was a witness to the events in question is able to speak to those events, explain why they happened and give his views on whether it was right that they should have happened or not. It is an exception, a very special kind of exception, to the general prohibition on the giving of any expert evidence at all.
My Lord, as soon as one articulates that principle one sees quite clearly that Mr. Henderson is a country mile away from it. Mr. Henderson was not a witness in any of the events in question. He was brought in ex post facto as a professional to undertake an inquiry and report. What he speaks to in his witness statement, with the exception of talking about a meeting and a couple of other relatively small points, he describes himself as having established, having reviewed the relevant documents. He is explaining the conclusions he came to having reviewed certain evidence. By the way, he does not identify the documents he reviewed so it is not a case where he can be cross- examined on that in a very effective way.
The difference between Mr. Henderson and Mr. Taylor could not be greater and, indeed, my learned friend’s attempt to invoke the Multiplex decision itself demonstrates how far Mr. Henderson is from it. In my submission, that is too obvious for words. I apprehend my learned friend will not suggest there is another way that one can get the evidence in, namely, simply by exhibiting the relevant reports to Mr. Henderson’s witness statements. There is a case in the bundle, New Media Distribution v Kagalovsky which makes it clear that cannot be done but unless my learned friend is going to insist that it can be done outside the Multiplex situation, I am not proposing to address your Lordship on it, unless your Lordship would like me to.
MR. JUSTICE FRASER: No, I do not think so. I have read all the cases. Thank you.
MR. de GARR ROBINSON: In my hypothetical situation, it is obvious that the second expertcannot give his evidence of his expert views and, as I say, that no doubt explains the position of Mr. McLachlan. The claimants say that Mr. Henderson is different but I ask forensically why do they say that. Perhaps we could now look at his witness statement. Your Lordship, I think, has it there behind divider 5. Start at paragraph 1.2. In paragraph 1.1 he says he is giving factual evidence, which I say is manifestly wrong.
MR. JUSTICE FRASER: You say it is expert evidence, I think.
MR. de GARR ROBINSON: Most of it is. It is evidence of his opinions. That is whatconstitutes expert evidence. At paragraph 1.2 he says: “I am a director of Second Sight. My knowledge of the Horizon system derives from the fact that Second Sight was appointed by Post Office to conduct limited scope review into alleged problems.” So, already we have one major point of distinction between Mr. Taylor and Mr. Henderson. He is an outsider coming in doing a review. Then what he does is he introduces into the record a number of reports that he produced and those reports run to over 100 pages. They are quite meaty lengthy documents.
In paragraph 1.3 he describes the termination, which is a fact, blissfully an irrelevant one. At paragraph 1.4 he says something about the way that documents were provided to him, which is a fact but again blissfully irrelevant. Then, at paragraph 1.5, he talks about a confidentiality agreement he signed, also a fact and, my Lord, also blissfully irrelevant. To be fair, he has not claimed they are relevant because he only gets to Horizon issues in paragraph 2.
At paragraph 2.1 a further mark of distinction between Mr. Taylor and Mr. Henderson: “As a consequence of my work which I have been instructed to undertake as to the operation of the Horizon system, there are certain matters within my knowledge which I consider are relevant.” That is an assertion that he did work as an expert and came to some conclusions that were relevant. That is an almost perfect example of what constitutes expert evidence.
Then, as my learned friend says, he refers to a meeting at paragraph 2.2 that is a fact. Then at paragraph 2.3 he describes trying to get some documents, also a fact, I would say completely irrelevant to the Horizon issues but I do accept that that is a description of fact. He comes to issues one and four in paragraph 2.4. He expresses his views. He expresses his view that the key to understanding transactions within Horizon was to be provided with access to the raw transaction data and he talks about Jenkins providing that data to him. He also talks about his reverse engineering. My Lord, whether his first sentence is opinion or fact evidence is really neither here nor there. The important point is none of this has any conceivable relevance to the Horizon issues.
Then he describes in paragraph 2.5: “My analysis of the sample data,” again, doing work as an expert, and then he says: “There are a number of matters which gave rise to concern.” He is not stating an opinion. He is stating a concern. That is not even as good as an opinion. It is working towards an opinion.
At paragraph 2.6, one really does begin to wonder why he is giving this evidence. He says: “Second Sight’s instruction was terminated before I could reach a conclusion as to whether these issues were the result of the Horizon system.”
So, paragraphs 2.5 and 2.6 are concerns that did not even give rise to a conclusion and I do ask forensically what is that evidence of, how does that help your Lordship decide any of the Horizon issues.
Then he says in 2.7: “I was also aware there were problems with ATMs,” which refer to the briefing report, part two; that is a lengthy report. My Lord, here we are, first of all, trying to incorporate by reference views expressed, views and opinions expressed in the report they did at the time.
He says, over the page: “There appeared to be an inconsistency between the information available on the Horizon system and that provided by the third party, which appeared to cause a shortfall.” Clearly, the use of the word “appeared” shows he is not speaking to something within his own knowledge. He is explaining an opinion, a judgement he formed on the basis of an investigation he undertook on the basis of documents that he does not identify. That is what experts do.
Then paragraph 2.8: “As a result of reviewing the documents provided to me by sub-postmasters and Post Office,” again we are not told which particular documents he has in mind. “I established that in the period prior to 2004 the accounting by Post Office for foreign currency transactions was fundamentally flawed…” Stopping there, “I established”, it is not “I saw this happening,” it is not a witness speaking to what he was involved in and saw at the time, “I established” means, actually, it is another word for “I concluded”, “I formed the opinion”. That is the clearest possible example of an expert opinion and if further support is needed for that one only need go to the next sentence: “This issue was covered in more detail in our briefing report part two.” Again he has incorporated by reference the meaty report that was done at the time. I should tell your Lordship it is a report to which Post Office has serious objections.
MR. JUSTICE FRASER: Post Office seems to have objections about a whole raft of things from time to time.
MR. de GARR ROBINSON: My Lord, I am not sure that is a fair observation but if you would like me to address it I am perfectly happy to.
MR. JUSTICE FRASER: No, we will come on to that at the end. Your submission is that he refers to a report, which I think is a contemporaneous report produced by Second Sight, to which you have objections.
MR. de GARR ROBINSON: Yes, the important point is your Lordship should not assume that what is in the Second Sight report is somehow not contentious.
MR. JUSTICE FRASER: I think that would be a fanciful assumption, would it not?
MR. de GARR ROBINSON: Very good.
MR. JUSTICE FRASER: That is the subject matter of the litigation or a large part of thesubject matter of the litigation.
MR. de GARR ROBINSON: Yes. The submission I was making to your Lordship wassimply seeking to make it clear that the contents of the Second Sight report are hotly inissue.
MR. JUSTICE FRASER: I do know that.
MR. de GARR ROBINSON: I am grateful.
MR. JUSTICE FRASER: Thank you for reminding me.
MR. de GARR ROBINSON: The significance, of course, is that if reliance is now placed onthe underlying reports, why would there not then have to be arguments about whether a good job was done by Second Sight when it produced them. Why would this cross-examination – my learned friend says this is only a six-page witness statement. It is not. It has incorporated by reference a large amount of reports which involved a large amount of work and why would it not be necessary, I ask forensically, for Post Office to investigate the quality of the work that was done. It becomes a trial of the quality of the Second Sight investigation. That is not what this Horizon issue trial has been designed to decide. It is a side issue.
Then, my Lord, paragraph 2.11, he says again: “As a result of reviewing the documents provided to me by sub-postmasters and by POL I established that in a significant number of cases a branch’s Horizon system would get out of sync with the quite separate Camelot system.” Again, an opinion based upon an armchair analysis. I do not use the word “armchair” in a deprecatory way. I am simply seeking to make it clear he is not a witness observing this happening. He is someone looking at the documents after the event and forming a professional opinion.
To make that clear, your Lordship will see in paragraph 2.13, at the end, this issue was also covered in Second Sight’s report, part two, again the incorporating by reference the part two report.
The same point in paragraph 2.14: “As a result of the work I established that it could be problematic for sub-postmasters to determine the root causes,” and coupled with 2.16: “This issue was also covered in the briefing report, part two.” So, this is not, my Lord, a six-page document which simply says some very simple things. It is a six- page document which incorporates by reference very substantial documents and raises issues about an enormous amount of work that was done many years ago. That, as I say and I respectfully submit, is not what the Horizon issues trial is for.
This is nowhere near the special Multiplex type situation. We are in Part 35 territory.
MR. JUSTICE FRASER: Part 35 applies across the board.
MR. de GARR ROBINSON: So, even in a Multiplex case it would be necessary for —-
MR. JUSTICE FRASER: Multiplex correctly considered does not disapply Part 35. Part 35 ispart of the —-
MR. de GARR ROBINSON: So leave is required. My Lord, I stand corrected. I had not appreciated that was the position. I am grateful for your clarification.
MR. JUSTICE FRASER: The TCC does not have its own separate extraneous non-CPR practice.
MR. de GARR ROBINSON: It makes the current situation even stronger. My learned friend has not sought and is not seeking permission under Part 35 for Mr. Henderson to be able to give expert evidence. On the basis of what your Lordship has just told me, that is an end to the matter, in my submission. If this did not matter in a practical sense, I would not be addressing your Lordship on it today, but it matters a great deal. First of all, it puts Post Office in an invidious position. This opinion evidence having been adduced, if Post Office does not cross-examine Mr. Henderson on these opinions, it will be said, first of all, that it has not put its case to a witness as is required by the rules; secondly, it will be said that Mr. Henderson’s evidence is unchallenged.
MR. JUSTICE FRASER: Each of those submissions just puts those concerns unlikely in any time to trial to get much traction.
MR. de GARR ROBINSON: My Lord, in my submission, if Post Office wants to challenge – if there is going to be reliance on the value of the opinions expressed in Mr. Henderson’s witness statement and the professionalism with which they were produced, there will then be a debate between the cross-examiner and Mr. Henderson as to the merit of his opinions. He will then seek to justify them. That cross-examination will itself give him a licence to go much further into the matter and say much more than in his six pages. He will go back into his reports. He will talk about meetings he had with people. He will mention documents that are not very clearly identified but he will mention documents and the cross-examiner will find it very difficult to know what to deal with, unless the trial bundles are extended perhaps by 100 or so documents, containing documents relating to the investigation that was undertaken by Second Sight six or seven years ago.
My Lord, I do ask rhetorically what would be the point of lengthening the trial bundle by 100 documents or so for the purposes of having a proper debate about the quality of the work and the value of the conclusions that were performed by Mr. Henderson at the time of the Second Sight reports. Against that backdrop, it is important that I remind your Lordship of what this Horizon issues trial is supposed to be about.
Could I ask your Lordship to go to the transcripts and remind your Lordship of what you said on, I think, 22nd February. It is in the case management bundle, volume three, part two, tab 11, page 168 of the bundle.
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: My Lord, if I could pick it up at letter C, where you said: “It isvery unusual in case management to find oneself having constantly to try and put either one or other party back on track for cost effective resolution of serious disputes. I reminded myself again by reference to the actual transcript of what I said last time, although I had a pretty clear recollection, that what I was going to be doing in March was to deal with expert issues that were present on the pleadings concerning Horizon which I described generically as the next big issue. I wanted the parties to agree or each propose an isolated number of issues on the pleadings related to Horizon that would involve expert evidence but not evidence of individual cases. I obviously was not sufficiently clear so I am going to make it clear now. My intention is in March to resolve the Horizon issues that reserve the following three criteria: Issues regarding Horizon system that arise on the pleadings, that is the first one; second, that can be resolved on expert evidence; third, that do not require evidence of fact or if they do require the very barest evidence of fact.”
My Lord, evidence of fact was to be kept to a minimum, one was to focus on the expert evidence and what your Lordship meant, if I may suggest this, by “expert evidence”, was the evidence of the IT experts for which your Lordship had already given permission at a previous hearing.
MR. JUSTICE FRASER: Just remind me, how many witness statements of fact have the Post Office served for this trial?
MR. de GARR ROBINSON: My Lord, I think it is about 12. I would have to remind myself. I should tell your Lordship why that is, actually. If your Lordship read the correspondence that was attached to my skeleton, your Lordship will recall that when the first round of evidence was served Post Office found a significant number of sub- postmaster witnesses/claimant witnesses giving evidence about their individual experiences, which is precisely what your Lordship said should not happen. A significant proportion of the evidence that is now given by Post Office meets that evidence, the decision having been made not to apply to strike it out in the light of whathad happened at the previous strike-out application.
MR. JUSTICE FRASER: Or raise it with the court and that would have been an alternative,would it not, as case management.
MR. de GARR ROBINSON: I can tell your Lordship that a huge a mount of anxious thoughtwent into that question. It was in the aftermath of your Lordship’s strike-out judgment, the reply that came from Freeths was, “In the light of the strike-out judgment we are not changing anything, we are not changing course.” Given the anxiety, frankly, the fifth on this on the part of Post Office —-
MR. JUSTICE FRASER: Why —-
MR. de GARR ROBINSON: Post Office heard what your Lordship said in that judgmentloud and clear.
MR. JUSTICE FRASER: What I said, Mr. de Garr Robinson, in that judgment, I thought,which was obviously reserved and drafted, I applied the test set down most usefully by Mann J about striking out evidence of fact and what approach one takes to relevance. You have 12 witnesses of fact for, let’s call it, round two of Horizon. Mr. Green has umpteen witnesses of fact. Most of the witness statements actually are relatively narrow in compass. There is obviously more fact than one would necessarily expect with the phrase “limited evidence of fact”, but I think between you, you are agreed that it can be dealt with in a reasonable number of days, and the only real issue appears to be, given you each have an expert, how Mr. Henderson’s evidence is to be treated if it is to be treated at all, that is really what it comes down to. You say he is an expert by the back door.
MR. de GARR ROBINSON: Yes, I say a large proportion of his evidence is back door expert evidence and I say, given the nature of the claims that he makes, if it were to be properly tested, it would take a considerable period of time and there is not time in the trial timetable. My Lord, I also say I should not have to be testing it. This trial is about Horizon issues. It is not about the adequacy or otherwise of the Second Sight investigative process.
MR. JUSTICE FRASER: That is a very good point. It is not about the adequacy of Second Sight, it is about the specific list of Horizon issues, which I think as at the date of the transcript you have just read out had not been refined and finalised, but now has.
MR. de GARR ROBINSON: Yes. I am grateful that your Lordship thinks it is a good point. My submission is that that point —-
MR. JUSTICE FRASER: What the trial is about, that is a very good point; it is to determine the Horizon issues.
MR. de GARR ROBINSON: Yes, it is not to determine whether some views that Mr. Henderson formed six years ago are right or not and whether he formed them on the right basis. That is not what this case is about. If Post Office is required, because this evidence is put up in front of it, if it is required to address those issues, that will take a significant amount of time. It will, in my submission, be a fundamental distraction. It is not simply that as a matter of law and practice this evidence is not admissible. It is not simply that. It is that it has a practical application in the context of this case. It puts Post Office on the horns of a terrible dilemma. It does not know what to do. If it leaves it, it is at risk of being criticised. If it engages
MR. JUSTICE FRASER: When you say at risk of being criticised, you mean the risk of the criticism which you say Mr. Green might sensibly be allowed to make, which is that it has not been challenged.
MR. de GARR ROBINSON: Yes, and Mr. Green would – even if he does not take that procedural point, that fundamental point of procedure in English litigation, even if he does not take that point, he can say these claims are made and they are not tested. It would not be right for your Lordship to dismiss them. On the basis of what is being said, it is only right that your Lordship should place great store by them and given that they are expert views for which no permission has been given, I do respectfully submit that it would be wrong to allow Mr. Green even to make those kinds of statements. That is the first point, the horns of a dilemma point.
The second point is the timetable point, which is that if this evidence is to be tested, it will take a considerable period of time.
My Lord, the third point is this is not a strike-out application so much as an application for a ruling from your Lordship as to what should properly be the scope of investigation at the Horizon issues trial. We are in Part 32 territory as much as anything else. Perhaps we can have a very quick look at that. It is the White Book at page 1027. This is the well-known provision. Your Lordship will be much more familiar with it than me, I am sure: “The court may control the evidence by giving directions as to the issues upon which it requires evidence, the nature of the evidence which it requires to decide those issues, and the way the evidence is placed before the court.” Then sub-rule (2) makes it clear that that involves the power to exclude admissible evidence.
In (3): “The court may limit cross-examination.” What I am asking from your Lordship is a ruling, an indication, a direction, which avoids the need for my clients to have to cross-examine Mr. Henderson on these matters of opinion. It would have preferred there to have been an arrangement under which Mr. Henderson’s factual claims were properly identified so that they could be either agreed or addressed appropriately, and probably very quickly, but given that the claimants do not want to cooperate in playing that game – I should not say the word “game”, that is too flippant, but they do not want to cooperate in undertaking that exercise – I do ask for a ruling, a direction of some sort which gives Post Office the protection, which, in my submission, it is entitled to, against the adverse consequences that I have indicated to your Lordship.
MR. JUSTICE FRASER: Yes, those consequences, I think, maybe I am wrong so tell me if I am wrong, the adverse consequences with which you are concerned are twofold, one is a more formal adverse consequence as it might be said you have not challenged the content of the Second Sight reports and the other is, I suppose it could be said, a more prejudicial detrimental consequence in relation to timetabling and not knowing what it is you should be asking questions about. Is that right?
MR. de GARR ROBINSON: Perhaps I could say it is three points.
MR. JUSTICE FRASER: Tell me what they are.MR. de GARR ROBINSON: The first one is the one that your Lordship adverted to —-
MR. JUSTICE FRASER: — which is a formal one that it has been challenged.
MR. de GARR ROBINSON: Yes. I would say substantive.
MR. JUSTICE FRASER: Okay, let’s say substantive.
MR. de GARR ROBINSON: It is substantive, it gives the claimant a substantive objection toPost Office’s ability to object to that evidence because it was not properly challenged. The second point is related to the first but I would submit it is separate, that is, it allowsthe claimants to rely upon those opinions as good evidence of what they are —-
MR. JUSTICE FRASER: The opinion is in the Second Sight reports.
MR. de GARR ROBINSON: Yes, to be incorporated by reference. These are opinions ofprofessional people and they have not been tested. Your Lordship should accept them atface value, and there is no basis for your Lordship to —-
MR. JUSTICE FRASER: You are saying that that is how it would be put.
MR. de GARR ROBINSON: Yes. I am sure that is how it would be put. There is the thirdpoint that your Lordship adverted to.
MR. JUSTICE FRASER: Really, two is a subset of one.MR. de GARR ROBINSON: They are related but they are conceptually separate.
MR. JUSTICE FRASER: Then the third one is the timetabling point.
MR. de GARR ROBINSON: Yes, if my clients cross-examine, it will take a disproportionatetime and it would be cross-examination about something that the Horizon trial is notabout.
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: Unless I can assist your Lordship further on that point….
MR. JUSTICE FRASER: Just remind me where in the multiple files I have I find the actualHorizon issues themselves?
MR. de GARR ROBINSON: My Lord, that is in the case management bundle, volume 2, andit is behind —-
MR. JUSTICE FRASER: Volume 2 of the —-
MR. de GARR ROBINSON: Case management, so it is volume 2, awards and judgments.Does your Lordship have the case management, not the hearing bundle?
MR. JUSTICE FRASER: I do. Just give me one second. (Pause) Whereabouts in here?
MR. de GARR ROBINSON: It is tab 9.9. It may be 9.4. I am so sorry.
MR. GREEN: It is 9.4, I think.
MR. de GARR ROBINSON: My learned friend is quite right. It is about three pages in.Your Lordship will see at the top: “I just cannot help being a barrack room lawyer,” as your Lordship will see the indications about fact, limited evidence of fact.
MR. JUSTICE FRASER: Yes. (Pause) Mr. Green, I am going to make certain observations to you, which really are for the purposes of both of you, and that you might find most useful now that you have stood up. In a way, it is possibly, I suppose, a misunderstanding as to the way time-limited trials work. I know this is a QB case but it is being tried in this building using many of the trial management procedures that we use in this building, not only in the TCC but the other specialist courts. In any time-limited trial any party would get pretty short shrift if they tried to make a formal point if a particular subject had not been challenged within the time available. Therefore, it occurs to me that at least part of the Post Office’s concern arises out of a misapprehension of your technical ability to do that. Are you aware of your technical inability to manage such an objective?
MR. GREEN: My Lord, I hope it was clear from the last trial as well, we did not take any point about —-
MR. JUSTICE FRASER: There is no point that can be taken about time limits —-
MR. GREEN: Because it is a time-limited trial you have to challenge what you can. We hada lot of witnesses. We had many witnesses to get through and we did them, hopefully, reasonably efficiently within the precisely allotted time finishing a little bit early. We would not have been able to do that had we not appreciated that point. My Lord, I am not going to take that point. I do not take that point. I have not come here this morning thinking I would.
MR. JUSTICE FRASER: All right.
MR. GREEN: Can I make just two points?
MR. JUSTICE FRASER: Yes.
MR. GREEN: There are two massive points.
MR. JUSTICE FRASER: Two massive points?
MR. GREEN: Massive points, large, prominent points. The first one is that what is good forthe goose is apparently not good for the gander. There is a massive asymmetry between the claimant’s side and the Post Office side, not one your Lordship has heard about lots of times before, but that plus (unclear). If your Lordship looks in volume 2 —-
MR. JUSTICE FRASER: Are you about to take me to a large degree of supplementary evidence of fact which comments on Mr. Henderson’s witness statements?
MR. GREEN: I was not actually going to do that although there is that.
MR. JUSTICE FRASER: Tell me where you are going to take me?
MR. GREEN: If your Lordship looks just very briefly in tab 7, it is the witness statement of Mr. Godeseth.
MR. JUSTICE FRASER: Tab 7 of….
MR. GREEN: Sorry, it is volume 2 of 5 of the hearing bundle for today, and it is in the second part, it is B.
MR. JUSTICE FRASER: Hold on a second. (Pause) Volume 2 of 5, which tab?
MR. GREEN: It is in tab – you have to go to section B, which is the defendant’s witnessstatements, the 12 filed by the defendant.
MR. JUSTICE FRASER: I do not have them where they should be.
MR. GREEN: There should be a second tab 7, about halfway back.
MR. JUSTICE FRASER: Actually, I do have them. I am sorry. Right, so the second tab 7;yes.
MR. GREEN: The second tab 7 is Mr. Godeseth’s statement. He has, in fact, two and this ishis second witness statement. In that he explains, albeit in relation initially to Prof. McLachlan’s witness statement, on page 3, at paragraph 11, that he has made reference to an email from Mr. Jenkins of Fujitsu.
MR. JUSTICE FRASER: Which paragraph are you looking at?
MR. GREEN: Paragraph 11.
MR. JUSTICE FRASER: Yes.
MR. GREEN: He says in brackets, he explains: “…who acted as Post Office’s expert witnessin the Seema Misra case.” That was the case in which Prof. McLachlan was an expertwitness.
MR. JUSTICE FRASER: Yes. I know about that.
MR. GREEN: Indeed.
MR. JUSTICE FRASER: You are not calling him, are you?
MR. GREEN: No, we are not calling him. The point is that Mr. Jenkins was Post Office’s expert witness about how the system worked in the Seema Misra case. If your Lordship then looks at what then follows, there is a treatment of the individual known bugs that Mr. Coyne is reporting on, so Calendar Square, these are actually front and centre main fighting ground for the Horizon trial, so Calendar Square is immediately below, and you then get some of the other bugs, later on, payments mismatches on page 9, dealing in this section, suspense account, local suspense is page 12, Delmellington bug is page 14.
MR. JUSTICE FRASER: What you are saying is he is a witness of fact, is being called as a witness of fact and he gives details which requires technical knowledge.
MR. GREEN: Yes.
MR. JUSTICE FRASER: Is that the short point?
MR. GREEN: It is much worse than that.
MR. JUSTICE FRASER: No, but is that the first and short point, is that why you are showingme this?
MR. GREEN: It is why I am showing you but the point I am making is that your Lordshipwill see at page 4, top of the page, “discussed it with Gareth Jenkins and myunderstanding is”.
MR. JUSTICE FRASER: Yes.
MR. GREEN: At 13.5, “From speaking to Gareth Jenkins.” At 13.7, “I understand fromGareth Jenkins”. At 13.8, “I also understand from Gareth”. At 14, “I understand from Mr. Jenkins”. At paragraph 36, on page 10, “I understand from Gareth Jenkins”. Paragraph 43, on page 11, etcetera, and so it goes on. It is replete not only with the type of evidence which we minutely adduced in Mr. Henderson’s statement, it is not only the same because he was an expert, precisely the same, but they are not calling him.
MR. JUSTICE FRASER: That is a different point.
MR. GREEN: No, no, my Lord, the point is if they were calling Gareth Jenkins, I would beable to say what Mr. Jenkins observed in 2012 —-
MR. JUSTICE FRASER: You may or not but they are not calling – I thought one of yourpoints was they are not calling —-
MR. GREEN: That is a separate point.
MR. JUSTICE FRASER: Rather than sort of widen it to, if I might say so, slightly widerparty political objections, keep it narrowly focused on what Mr. de Garr Robinson is seeking today, which is a declaration or a ruling, some sort of indication under CPR Part 32.
MR. JUSTICE FRASER: Your point, as I understand it, is that very similar evidence is given purportedly as evidence backed by Post Office’s witnesses, is that the short point?
MR. GREEN: Yes, we respectfully say that —-
MR. JUSTICE FRASER: Whether Mr. Jenkins is called or not is neither here nor there.
MR. GREEN: Not quite so.
MR. JUSTICE FRASER: No, Mr. Green, quite so. Whether Mr. Jenkins is called or not isnot germane to this point.
MR. GREEN: To that point, no. My learned friend’s submission was that he would havetrouble challenging the basis of what Mr. Henderson said.
MR. JUSTICE FRASER: Mr. de Garr Robinson’s wider concern is that this trial is not aboutthe accuracy or correctness of the conclusions in the Second Sight report and he should not be required to delve into that area by proxy through you calling Mr. Henderson purportedly as a witness of fact. That is really what it boils down to.
MR. GREEN: That is what he is saying. I understand.
MR. JUSTICE FRASER: Whether Mr. Jenkins pops up stage left does not make anydifference to that submission.
MR. GREEN: It is only by comparison with my learned friend’s suggestion that he is goingto be in difficulties challenging a witness who is there to be cross-examined —-
MR. JUSTICE FRASER: Well….
MR. GREEN: — when I have to challenge someone who is not even there.
MR. JUSTICE FRASER: I am not sure that submission is even on the point, with respect.That is not the point.
MR. GREEN: The factual point, I agree, is separate.
MR. JUSTICE FRASER: Whether it is factual or factual/legal —-
MR. GREEN: — whether it is —-
MR. JUSTICE FRASER: Whether we have Mr. Jenkins or not just does not affect this at all.It does not as a matter of analysis.
MR. GREEN: My Lord, the only observation I would say is that if it is a factor my learnedfriend relies on, it is difficult for him to challenge Mr. Henderson when he is in the witness box —-
MR. JUSTICE FRASER: I think part of Mr. de Garr Robinson’s technical objections as to admissibility and the application of Part 35 is that it would be disproportionate and effectively a group of side issues, if he were to have to challenge the Second Sight report through Mr. Henderson, not that he cannot.
MR. GREEN: Yes, my Lord, but we respectfully say what he has focused on in the report, what Mr. de Garr Robinson’s experts commented on and so forth, and what the witnesses have responded to because Angela Van Den Bogerd has responded extensively to Mr. Henderson as your Lordship knows, falls within a very narrow compass and the difficulty we have is, yes, we do have an expert who has looked at the system in 2018, but your Lordship is concerned with cases that span back a large number of years.
MR. JUSTICE FRASER: Yes, but you are not calling her as an expert, are you?
MR. GREEN: No, not at all. We are adducing evidence about what he saw and found when he looked at the time in 2012, which we are not otherwise able to adduce, whereas PostOffice not only has available to it witnesses throughout the period as we can see but in that period in 2012 actually was engaged in looking in detail and spending many millions of pounds in looking in detail at these issues at that time. My Lord, I accept that it is really the top of the iceberg that we get a glimpse of from 2012, where Post Office sees the whole thing, but that is the context in which that limited evidence we respectfully say cannot sensibly be passed from the factual evidence that he gives; it is all part and parcel. We have confidence that the court will be able to give such weight to it as is appropriate.
MR. JUSTICE FRASER: All right.
MR. de GARR ROBINSON: Your Lordship may not want me to address one of my learned friend’s —-
MR. JUSTICE FRASER: What I was going to do, Mr. de Garr Robinson, is give you anopportunity now if there is anything you want to add by way of reply, and then I amgoing to explain the situation.
MR. de GARR ROBINSON: I am grateful to your Lordship. My learned friend’s massivepoint about Mr. Godeseth, your Lordship sees from this section Mr. Godeseth is responding to the expert evidence to which we have objected and the claimants are now saying they are not relying on. The relevant paragraphs talk about, “as Prof. McLachlan notes in paragraph”, it is telling a story dealing in more detail with the things that Mr. McLachlan dealt with in his witness evidence. It is rather to create this false picture of equivalence between Post Office and the claimants because Post Office felt the need to respond to a witness statement to whose existence is objected is a very strong thing.
My Lord, secondly, there is no conceivable equivalence between Mr. Godeseth and Mr. Henderson. Mr. Godeseth works for Post Office. He is a Mr. Taylor.
MR. JUSTICE FRASER: Mr. Godeseth?
MR. de GARR ROBINSON: Mr. Godeseth.
MR. JUSTICE FRASER: I think he works for Fujitsu.He has —-
MR. de GARR ROBINSON: I am so sorry, did I say Post Office?
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: I stand corrected.
MR. JUSTICE FRASER: He is the chief architect but he is on the Post Office —-
MR. de GARR ROBINSON: He is well capable of giving a great deal of factual evidence,most of his witness statement is based upon his own knowledge. There are some small limited points which are based upon things that he is told by Mr. Jenkins because no human being can have full knowledge of absolutely everything. He is a Multiplex witness. He is not the kind of witness that the claimants want Mr. Henderson to be. As regards my learned friend’s second massive point, I am afraid I did not notice it.
MR. JUSTICE FRASER: All right. Thank you very much. Just give me a second, if you would. (Pause) I am going to give a short explanation to the parties about the situation.
- This is a pre trial review in the Post Office Group litigation. The introduction to this short ruling is going to be brief because everybody in court is very well aware of the background. It is a claim by nearly 600 sub-postmasters in relation to the operation ofthe Horizon system, which is a computerised accounting system, and the Post Office’sbehaviour to those sub-postmasters as a result of what are said to be shortfalls and discrepancies in the accounting data.
- The first round of issues that has been tried by me are called the common issues and they are contractual. That trial took place in the Autumn of 2018.
- The second round of issues are technical computer issues and they are referred to as the Horizon issues. They are included in a schedule, schedule 1, to a case management order that I made on 23rd March 2018. They effectively deal with bugs, errors, defects in Horizon and how Horizon either does or does not work. There are all together 15 of these and each side has permission to call one IT expert each.
- At this pre trial review stage, however, the court has been addressed by the Post Office in relation to part of the evidence of one of the witnesses who it is sought to be called by the claimants, Mr. Henderson. Mr. Henderson is a director of an organisation called Second Sight. Second Sight was engaged by the Post Office as an independent consultancy organisation on a mediation scheme to try and resolve the disputes between a large number of sub-postmasters and the Post Office in relation to the matters which are effectively the subject of this whole group litigation. As I recall, that process started in 2012. It came to an end in circumstances that could be described as prior to it having run its entire and natural course, and it is unnecessary to go into any further detail about that.
- Mr. Henderson is a director of Second Sight and he has provided a short witness statement, which is about six pages long, dealing with his evidence in respect of that. I should say two things about Mr. Henderson. First of all, although his witness statement is somewhat short, it does refer to the Second Sight reports that were produced during the Second Sight mediation process to which I have referred. Secondly, it summarises the position as he sees it, involving his views on technical matters.
- The Post Office is extremely concerned and has mounted what could be described asan assault on Mr. Henderson’s evidence, a term that I do not mean pejoratively. No application has been issued to strike it out or parts of it out as inadmissible, which was something that happened before the common issues trial when a very wide ranging attack was made on substantial passages of witnesses of fact that was proposed to be called; this time the Post Office’s objections to the evidence are the following. It is that Mr. Henderson is effectively trying to give expert evidence “by the back door”and there is no permission for him to be giving expert evidence. CPR Part 35 requires permission in order for that to happen; that effectively boils down into what are two main submissions. Firstly, that there is no permission for this expert evidence. Secondly, it is said that it will put the Post Office in an impossible position so far as cross-examining Mr. Henderson because they will not know which parts of his evidence that they are properly allowed to attack and which they are not, in order to attack the accuracy and content of the Second Sight conclusions in the Second Sight reports to which he refers. It is said that there would be an enormous amount of extra time required and it will cause very substantial timetabling issues for the Horizon trial.
- It is also said that so far as adverse consequences to the Post Office were this evidence to be allowed, the claimants would be entitled to make submissions that large amounts of the Second Sight conclusions simply were not challenged. Accordingly, the Post Office submits that there is a risk that the claimants could be entitled to rely on the contents of the Second Sight reports when I come to consider the correct answer in my judgment to the Horizon issues.
- I am going to deal with this in the following way. First of all, CPR 35.1 imposes a duty on the court to restrict expert evidence. CPR 35.4.1 makes it clear that expertevidence needs the court’s permission to be admitted. The situation which has arisen in this case, when permission has been given for an expert but another witness of fact, either involved contemporaneously or sometimes not contemporaneously, but who has technical knowledge of their own, often arises in litigation in the Technology and Construction Court. It is no surprise that although this case is not a Technology and Construction Court case, the Horizon issues in particular would be entirely at home in a Technology and Construction Court case because they raise very detailed and complicated technical issues.
- Some authority was relied upon and there was a suggestion that there is a different practice in the TCC to expert evidence than in other lists. I do not consider that there is any separate approach in the TCC to expert evidence than there is across the rest ofthe Queen’s Bench Division, we are all governed by the CPR. I should say that so far as the TCC is concerned, witnesses of fact having detailed technical knowledge is not at all unusual. Obviously, witnesses who fall into that category may from time to time express their opinions but they are not governed by the requirements of independence under CPR 35.
- The way that these situations are usually dealt with is that matters such as Mr. de Garr Robinson has explained, those sorts of concerns are made by way of submission withrespect to the weight that should be given to the particular person’s conclusions. In any case I am happy to make it clear, and I do make it clear now, that in so far as Mr.Henderson’s factual evidence seeks to portray the conclusions of the Second Sight report as being correct, it is not going to be necessary to form a view on that in order for me to answer the Horizon issues in Schedule 1.
- In so far as Mr. Henderson is called and Mr. de Garr Robinson chooses to cross- examine him, it is entirely a matter for Mr. de Garr Robinson how he does that and how long he takes, but I am not going to allow the trial to be sidetracked into a satellite set of issues as to whether the Second Sight conclusions were, or were not,correct. Mr. Henderson’s factual evidence does identify how he came to the conclusions that he did. They may or may not be valid conclusions but on the basis that the claimants are calling their own separate independent IT expert and the Post Office is calling its own separate independent IT expert, it does not seem to me that the concerns the Post Office has raised are particularly either unusual or indeed well founded.
- I would also point out that the Post Office intends to call two witnesses of fact and I am dealing with their first witness statements, not their responsive ones. Both Mr. Godeseth and Mr. Membery are employed by Fujitsu, both their witness statements have extensive technical information given within them, and they are plainly not being called as experts. It is often the case that the court has to be very careful when it hears evidence of fact from technical witnesses that it reminds itself regularly that their status is as witnesses of fact and not experts. I do not consider the correct approach is either to strike out any parts of Mr. Henderson’s witness statement, orindeed to give any form of indication to the Post Office regarding which sentences it should or should not cross-examine upon; it is entirely up to the Post Office how it goes about that.
- It will help, I am sure, if I make the following points clear about a time-limited trial. The cross-examination of all the witnesses of fact we are going to come on to in a moment. I would not expect Mr. Henderson to be in the witness box for longer than about an hour. That is the maximum I am prepared to allow him to be cross- examined unless Mr. de Garr Robinson at the trial itself asks for a little bit longer. Any formal point that would be made by Mr. Green that because certain points have not been put to him, means they are not formally challenged, would be points that really would not be given the time of day by the court. It is only the main points that need to be put to witnesses in the time available for them to be cross examined at the trial, anyway. Every single point does not have to be put to every single witness, nor would there be time for this to be done. In all those circumstances, that is how we are going to deal with Mr. Henderson.
- That then brings me on to timetabling generally. I am just going to explain before we get on to the experts what my proposal is for the first two weeks of the trial and then I am going to hear from both counsel about experts.
- I do not expect any of these dates to be uncontroversial but I am just going to tell you what they are and you can then address me if you consider they are uncontroversial. Based on what each of you have said in your skeletons about how long each of you think you need in order to cross-examine each other’s witnesses of fact, the weekcommencing 11th March is going to be dealt with as follows: openings, oral openings are going to be dealt with on the Monday, half a day each, and then the rest of that week is going to be for the Post Office to cross-examine the claimants’ witnesses.
- The next week is again a four-day week and that is going to be for the claimants to cross-examine the defendant’s witnesses. So, all the evidence of fact is going to befinished with by the end of week two.
- That means that the written openings are going to have to be lodged some time early in the week of 4th March and I am going to suggest the Monday but I will hear from you about that in due course.
- There is then going to be a week where we are not sitting. That is not to say the court will not be sitting on other things but we will not be sitting in this trial, and the evidence of fact will be complete.
- I am going to explain to you, or hear from you in a moment, about length of time for experts but part of the reason for that week is not only that you can prepare to deal with experts’ cross-examination having perhaps less court time than you might like in an ideal world, but also that the legal teams are going to be able to start preparation for their closing submissions because the closing submissions are going to have to be delivered orally in the week of 8th April.
MR. JUSTICE FRASER: I will start with you first, Mr. de Garr Robinson, because I think your opening position is you want four days.
MR. de GARR ROBINSON: My Lord, yes.
MR. JUSTICE FRASER: I have read the experts’ reports in quite a lot of detail.
MR. de GARR ROBINSON: Good heavens. Your Lordship will be aware how lengthy theyare and what a substantial amount of time it takes to read them properly. Your Lordship will be aware that Mr. Coyne’s first report is 154 pages of text, 225 pages in total. His supplemental report is 258 pages of text, 265 in total. The form of structure is one in which the report is extremely dense. It is one of those reports which is like a wall of separate points, all built up in front of you, a small number of points which are said to add up to a big conclusion. Each one of those points has a significant number of documents. Some of those documents or most of them are very technical. Some of them are quite lengthy narrative documents, peaks, and cals, and so on, but there are other documents as well. My Lord, just the supplemental report, Mr. Coyne’s supplemental report, I have a set of bundles of all the documents he directly refers to in that report and on a single-sided basis it runs to 12 lever arch files and over 300 documents.
My Lord, that sort of edifice is not possible, in my considered view, to cover in three days. If I can give your Lordship an example, section three of Mr. Coyne’s supplemental report that really sets out the claimants’ case for the first time in a clear and coherent fashion, that report, 50 pages of that section three are devoted to considering what he describes as 22 bugs or errors that he has found in Horizon. My Lord, for each of the bugs or errors he refers to a large number of peaks, messages, emails, and so on – perhaps not emails – and it would be easy to spend an hour on each one of those bugs or errors that he claims to have identified. An hour on 22 bugs or errors gives you 22 hours of cross-examination, so we are already over four days just if one approaches the matter on that basis.
That would not be the sum total of his cross-examination because it would then be necessary for me to put my case to Mr. Coyne. There is the rest of section three, his section four, 25 to 30 pages dealing with his views on the significance of the factual evidence, and then there is section five which is a whopping 130 pages in which he seeks to dissect in a very forensic way Dr. Worden’s first expert report. Critically, and it is important your Lordship should understand it, there are certain issues that we say Mr. Coyne should have dealt with, particularly on questions of extent, that he has not dealt with. I will have to have a debate with him about all the things he has not dealt with as well as all the things that he has.
At the end of the day, it is a matter of professional judgement and I have already heard what your Lordship has said but you asked me to tell your Lordship what I believe and, as I say, my considered view is that it would be easy to spend more than four days with him but four days is absolutely needed.
MR. JUSTICE FRASER: Mr. de Garr Robinson, it is extraordinarily unusual for cases in theTCC, for example, a single expert on any matter, no matter how wide ranging or complex, to be cross-examined for longer than a day. I am sure, given a following wind, you could probably find questions to put to him, for example, on the 22 bugs; any highly competent and skilled cross-examiner, which I am sure you are, you could spend half a day on each of those bugs, probably. The question is how much time is available and how much time is proportionate and fair.
I have read the reports in quite a lot of detail. They do not seem to me to justify as long as you are asking for. Now, I am going to hear from Mr. Green briefly now but as an example on the 22 bugs, what one would normally expect is you would choose a selection of those only and explore those. If they all work in your favour, then that is all to the good for your submissions at the end. If some of them do not, then that might lead to different submissions.
As I am sure Mr. Henderson will have explained to you, and you probably know anyway, in some cases where one has six experts there is literally only a week available of the six, so the number of days that you have asked for I am afraid I consider excessive. I do have a nascent solution in my mind but I am going to hear from Mr. Green in a moment. I looked at the experts’ reports anyway when they were served because I was interested, and relooked at them again yesterday in considerable detail based on the outline trial timetables that you both kindly lodged at the beginning of the week, and actually what ends up happening is because each side does focus on its headline or best points over a number of times and will also have the experts’ agreements, the court is usually in as good a position after a time limited cross- examination of experts, as it is after weeks and weeks. I am, however, acutely conscious that it is much harder in a time-limited cross-examination necessarily to get the necessary time for preparation which is part of the reasons, as well as the other wider reasons, that I am carving out that week of week three. I will hear from Mr. Green. I know you would like longer.
MR. de GARR ROBINSON: My Lord, I say I need longer but I say that most respectfully.
MR. JUSTICE FRASER: I know you do but I have to balance a number of different factors and obviously look at CPR Part 1.
MR. de GARR ROBINSON: Yes.
MR. JUSTICE FRASER: All right, Mr. Green, what do you have to say?
MR. GREEN: My Lord, we are going to have a lot of difficulty getting through all 12 of theirwitnesses in the four days.
MR. JUSTICE FRASER: We are talking about fact now, are we not?
MR. GREEN: That slightly plays in because a lot of their factual witness evidence istechnical evidence which feeds into their experts’ report. So, there are going to be someeconomies we have to make with our factual witnesses.
MR. JUSTICE FRASER: There always is in a time-limited trial.
MR. GREEN: Of course, but —-
MR. JUSTICE FRASER: Both parties could, and probably 15 years ago would, have spentsix months fighting this trial on just the Horizon issues.
MR. GREEN: Your Lordship is absolutely right and we do not want to go back to that. Weare not going to. My Lord, we originally wanted internally four days to cross-examine their expert. We have looked at the timetable. We have decided not to call one factual witness, which we sought to get rid of, Mr. Singh. We have decided not to call Prof. McLachlan to try and accommodate everything, and it was on a compressed basis of the minimum we thought we would be able to manage it in, because I have to put Mr. Coyne’s back the other way, and we said three days.
MR. JUSTICE FRASER: I know but, Mr. Green, what is sauce for the goose is sauce for the gander. I have just told Mr. de Garr Robinson he is not going to have the luxury of being able to put all those things and what you are going to have to do is you are going to have to put your best evidence.
MR. GREEN: Absolutely, I accept that. The only point I want your Lordship to know is that it was not like we wanted three days and he wanted four. It was we wanted four —-
MR. JUSTICE FRASER: I know that in an ideal world I am sure each or either of you would like in excess of a week each but you are not going to have it, so that is the end of it.
MR. GREEN: Your Lordship should know just very briefly the chronology on provision of information to Mr. Coyne is that on 27th September he had 218,000 peak documents when his first report was on the 16th. So, at the beginning your Lordship will have seenin paragraph 1.27 and onwards he has explained to what extent he is able to do that.
MR. JUSTICE FRASER: I know but all the facts are explored in evidence and it may turn outto be a good, bad, or indifferent point.
MR. GREEN: My Lord, we are asking for three days.
MR. JUSTICE FRASER: I know and you are not going to get three days.
MR. GREEN: Very well. My Lord, I do not have anything to add other than to say that threedays is already compressed for us —-
MR. JUSTICE FRASER: For?
MR. GREEN: — particularly as we now do not have the half extra day that we were seekingfor the factual Fujitsu witnesses.
MR. JUSTICE FRASER: I know. It is a time-limited trial and it is of a subject matter withwhich I am extraordinarily familiar, we do computer cases in this building all the time, and to have two experts cross-examined for the total length of time each of you say you need added together, I am afraid, is disproportionate. I have explained week one to you and I have explained week two. Week three you are not going to be sitting at all. That is going to assist you both. The expert evidence is going to be dealt with in its entirety in the whole of the next week but we will sit five days so you get two-and-a-half days each. I fully appreciate that that is less time than you would like. One mechanism which is adopted in many cases is if there are other headline points which you wish to have taken into account which you have not been able to put, you can just make those in summary form in a separate section of your closing submissions and say, these points also arise but there was not time.
I am pretty confident that by the end of five days of cross-examination I will be in a very informed and fortunate position in terms of being able to come to a conclusion on the experts’ different points of view. Also, I think, and I may be wrong, are they meeting again?
MR. GREEN: My Lord, they are.
MR. JUSTICE FRASER: With a possible further joint statement.
MR. GREEN: It is today.MR. de GARR ROBINSON: Yes, they are meeting this morning.
MR. JUSTICE FRASER: There is no reason why they cannot meet yet again. There can be three joint statements. They are to be encouraged to agree as much as possible. That then leads us to week five of the current trial period. You are going to have a day each for your closings, Mr. Green on Wednesday and Mr. de Garr Robinson on Thursday, I think. I have freed up the Friday, 5th April, to be a five-day sitting week for the expert evidence week. Is that timetable clear, Mr. Green, so you can draw it up and append it to the order?
MR. GREEN: My Lord, yes.
MR. JUSTICE FRASER: I would like with your written openings, please, more detail of whois being called on which days; obviously not so important for week three but veryimportant for week one and two, the way you did for the common issues.
MR. GREEN: Of course, the way we did before.
MR. JUSTICE FRASER: You will just have to discuss that between yourselves. Going backto your agenda, then, I do not think anything else is enormously controversial, is it?
MR. GREEN: My Lord, only the date for submissions to be provided to your Lordship.
MR. JUSTICE FRASER: I would like them on the Monday. I will hear first from Mr. deGarr Robinson and then I will come to you. Mr. de Garr Robinson.
MR. de GARR ROBINSON: My Lord, it is a function entirely of when your Lordship thinksyou are going to start reading in.
MR. JUSTICE FRASER: What often happens is one is told one is going to have a particularperiod of reading and then actually things happen and one does not get that. Originally, I was told I could have an entire week but it is likely to be less than that. If I could have them, for example, noon on Monday the 4th together with an agreed bundle of authorities, then that would be very helpful from my point of view. Is that achievable?
MR. de GARR ROBINSON: Yes.
MR. JUSTICE FRASER: Is that right?
MR. GREEN: My Lord, yes.
MR. JUSTICE FRASER: That just leaves a discussion as far as trial timetable is concerned,and hopefully constructive input from me, an indication of when you think that you are going to be lodging your closings. I will leave the point with you. The only observations I will make are as follows. If your written openings are sufficiently comprehensive, your closings should just really deal with the way that that has developed on the evidence. A lot of that is going to be clear after the factual evidence but obviously you will still have some to do after the expert evidence. I would like at least the whole of the Tuesday and preferably some of the Monday as well but I do not want to put impossible pressure on you exactly when you might lodge them, or we can decide later on in the trial. It is going to have to be at some point at the very beginning of that week. That is just to try and help. Is that timetabling? Is there anything else on timetabling?
MR. de GARR ROBINSON: There is one matter I should mention both to my learned friend and to your Lordship.
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: My learned friend very fairly pointed out in his skeletonargument that in correspondence my instructing solicitors have indicated the order in which Post Office intended to call its witnesses and by mistake, and it was a pure mistake, they left out Mr. Membery. My Lord, when that was pointed out I immediately made enquiries which has uncovered this fact, that Mr. Membery has a serious illness which is going to require urgent medical treatment and it is not clear when he is going to get it. We will give our intended order of witnesses but there may need to be some flexibility.
MR. JUSTICE FRASER: And if it is going to help, I am happy to have him interleaved.
MR. de GARR ROBINSON: I am very grateful.
MR. JUSTICE FRASER: And I am very constructive about situations like that. Whateveranxiety the Post Office might have heretofore, there should not be any about that at all.
MR. de GARR ROBINSON: I am most grateful.
MR. JUSTICE FRASER: Also, if he is in that situation, it might be sensible to have him firston, on one particular morning so that he does not have to hang around; all of those sortsof things.MR. de GARR ROBINSON: That is very kind of your Lordship. Thank you.
MR. JUSTICE FRASER: All right. That is not an issue. You can liaise about that. Is that everything on timetabling?
MR. GREEN: My Lord, yes.
MR. JUSTICE FRASER: Right. The videolink is not opposed. I, of course, approved it in the circumstances. I am not sure what the difference is in term s of time between here and Pakistan.
MR. GREEN: We will deal with that, my Lord.
MR. JUSTICE FRASER: Again, I am completely constructive and helpful about that.
MR. GREEN: I think the morning is easier than the afternoon.
MR. JUSTICE FRASER: It should be done at the beginning of the session just because theequipment needs checking, etc. etc. I do remember cross-examining quite a lot of witnesses in Australia once and that was about the worst possible time difference for everybody. I approve it in so far as I need to for Mr. Patny to be cross-examined via the video. Is there anything in the trial bundle point? Is that just an observation or a concern?
MR. de GARR ROBINSON: You mean in my skeleton?
MR. JUSTICE FRASER: Yes.
MR. de GARR ROBINSON: It is a concern and it may be that there will be further correspondence between the parties but there is nothing your Lordship needs to deal with.
MR. JUSTICE FRASER: Good. Again, the situation vis-à-vis Mr. Wallis and OPUS, and the transcript, is there anything about that?
MR. GREEN: My Lord, no. We put it in because your Lordship made a perfectly obviousand clear order last time and we thought it should carry on for the next trial.
MR. JUSTICE FRASER: All right. I am happy to do that. Therefore, you will draw up theorder for today. Is there anything else that needs to be dealt with?
MR. GREEN: My Lord, no.
MR. JUSTICE FRASER: Liberty to apply. Costs, all of that; the usual. There are two things that I would like to mention, please. They just relate to the group litigation generally. You will be getting an email later on today that gives you the four-week period for round four, which I promised you on Tuesday at the CMC, the 2nd to 26th March 2020. I know you were waiting for a date about that. Then the other point is just to explain the progress on the common issue judgment. I remain on track, more or less, to have that ready to be distributed in draft by the end of February. There may be one or two days slippage but that remains the achievable aim subject to any unforeseen events. Anything else?
MR. GREEN: My Lord, no; thank you very much.
MR. JUSTICE FRASER: We are supposed to have the super court again for Horizon. I have been assured that that is all in place. The claimants may just want to ensure that that is the plan through official channels.
MR. GREEN: Thank you.
MR. JUSTICE FRASER: Thank you all very much.
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