Day 148 of the Post Office Horizon IT Inquiry at Aldwych House in London
I have already bumped into fellow Horizon Scandal Fund trustee Varchas Patel, who says hi. This morning we are going to hear from Anthony de Garr Robinson KC.
189 tweets
Good morning and welcome to Day 148 of the Post Office Horizon IT Inquiry at Aldwych House in London. I have already bumped into fellow Horizon Scandal Fund trustee Varchas Patel, who says hi.
This morning we are going to hear from…
Anthony de Garr Robinson KC, who represented the Post Office during the Horizon issues trial as part of the Bates v Post Office litigation. This afternoon we're going to hear from Lord Grabiner KC, who led the attempt to have Mr Justice Fraser recused…
… as managing judge of the Bates v Post Office litigation.
I have just sent a sparkling, lengthy, link-encrusted newsletter about these two men and their role in this scandal, so I'm not going to repeat it here. If you subscribe to the newsletter before 0945 today, I'll…
… forward you that newsletter and ensure you get every other "secret email" going forward. The donation/link is here: www.postofficescandal.uk/donate/
This morning's newsletter also features some more Jason Beer merch. Yes, it's come to that.
I'll start live-tweeting proceedings from around 0945. For legal types and/or students of this scandal it should be a fascinating day.
I've just bumped into Beer who has confirmed he will be asking the questions on behalf of the Inquiry today. I told him about the merch.
Anthony de Garr Robinson (AR) has been sworn in.
A reminder nothing I tweet is a direct quote unless in "direct quotes". It's a summary or characterisation of what is happening.
JB you were called to the bar in 1987, took silk in 2006, practice focuses on civil litigation, fraud, banking finance etc
AR yes
JB starts talking about AR's work on Bates v Post Office and his juniors on the litigation including Owen Draper
JB the authoritative factual and legal position is established by Mr Justice Fraser's Common Issues judgment 15 March 2019 and Horizon (H) position dated Dec 2019 and other CoA judgments – not going to ask you about them
AR I understand
JB turns up AR's Witness Statement (WS) and points out his dates are 2018 – thinking they should be 2016
AR apologises – JB is correct
JB this first involvement was "a beauty parade" of prospective barristers
AR yes
AR taken to par 11 – the remote access problem
JB big issue?
AR yes
JB most significant
AR a significant issue- the embarrassment was that the PO said it couldn't happen, and it could
JB and this kept happening, didn't it. PO admitting things it previously said weren't possible
AR yes
JB takes him to an email from Jane McLeod (JM) to Paula Vennells (PV)
JB reads from par 3 – interested in "already grasped the political significance of the case" – what does that mean
AR not sure. sense of embarrassment about remote access. difficult to think there are other issues I would have grasped. not sure what "political" means
JB would you have regarded the cases as containing political issues
AR no it's a commercial litigation issue. in any litigation some concerns clients have about matters wider than litigation
JB what about political sensitivities?
AR i would think that mean govt – any…
… embarrassment of the PO might be shared by the govt. not sure
JB did the fact the gov owned PO affect your thinking
AR no
JB how did you approach the litigation
AR using my skillset of knowing about substantial commercial litigation. nothing I said or thought was…
… altered by my knowledge of gov ownership
JB so the fact the PO could be seen as a public authority didn't affect your thinking
AR there was something in claim form about misfeasance in public office, but you'd have to take me back to that
AR but the trials were my focus and my approach was to look at them as private companies
JB not asking about that. Asking you about a wider approach when dealing with a public authority or quasi-public authority – did that affect your approach
AR No
JB so this was an…
… ordinary piece of commercial litigation
AR yes
JB reads more of the email
Par 2 notes the proposed steering group for the litigation
JB did you sit on this steering group
AR no
JB did you attend
AR on occasion – put them in my WS
JB so this was when you were called in
AR yes
We move on to a new doc – June 2016 AR is 8 to 10 days into his reading on the new case. Andy PArsons from Womble Bond Dickinson replies in red
More…
JB is just reading the questions not the answers.
Q2
More…
More…
More…
and final qs 5 and 6
JB so after a few days reading – you have asked some pretty blunt q's about issues which appear to you to be fundamental to the litigation
AR doesn't deny but goes through them one by one
1 – yes, pretty important
2 – doesn't go to the heart of anything
JB hang on…
… you'd spotted in Q2 about the remote access issue, you wanted to know if there had been an exercise looking at past convictions
AR yes and three…
JB hang on… relatively cursory answer isn't it?
AR yes. Three I note AP's answer but it was a significant issue
AR q4 not really sig to the litigation. Nor q5 or 6… at least not that that had been conducted by the end of the H trial
JB did you probe these relatively cursory answers?
AR prob not because I was reading in…
JB asks AR to look at Q and A to point 2
Full reply
JB AP does not answer your question directly here, does he
AR no he doesn't
JB did AP tell you about Gareth Jenkins issue at all?
AR no recollection at all. and would be surprised
JB you knew by the time of the litigation, the CCRC were engaged
AR did you advise on document retention at all with regard to possible proceedings…
… arising out of the CCRC engagement
AR no. completely outside my scope of expertise – left it to Brian Altman
JB were you aware of any person in the civil counsel team giving advice about document retention re disclosure to the CCRC
AR not that I recall
JB was anyone in the civil solicitors doing it
AR no
JB was any advice given by crim barristers re doc retention
AR don't think so
JB no one said that some privilege might apply in civil proceedings, but not in crim proceedings
AR no that I recall
JB your experience of disclosure given by the PO in the litigation was "poor" and "fairly maddening"
AR yes
JB takes him to his WS on KELs "an extraordinary story"
JB notes another "extraordinary story"
JB reads "to say these problems were frustrating would be an understatement"
[This is nuts]
JB would i be right in thinking the whole process of representing the PO in terms of disclosure was a "very uncomfortable experience for you"
AR towards the end when I became aware of the errors, yes – earlier no
JB because you didn't know the true position then
AR yes
JB this must have left you not trusting your client or solicitors
AR in relation to trust, some of these probs were caused by difficulties at Fujitsu (F)
JB who told you that
AR PEAKs was obvious that was PO and WBD discovering docs not previously known about this
JB did you ask how these docs were uncovered
AR don't recall conducting an investigation. not my job to ask what had gone wrong – I would have been told new PEAKs had been produced. I think I would have been told it was F not doing their job properly and took that at face…
… value. In relation to some of these problems WS would have been produced by AP so the court got explanations. I am sure I would have asked questions, but I would not have tested the answers.
JB you blame F for the disclosure issue in your WS and you got that from the PO?
AR yes
JB and you didn't test that?
AR I asked for an explanation, but I didn't challenge it
JB takes him back to the KEL issue
More
JB takes him to an email he wrote about the KEL disclosure issue
Full body of the email
JB why was it you had previously thought KELs were not in the PO's control
AR got that on instruction
JB from WBD
AR yes
JB and this is you saying we need to look at teh contract to find out if that's true
AR yes
JB who told you KELs were not a document
AR it might be my understanding from the Freeths letter about what we said and I am expressing doubt that this was what we said
JB because it would be ridiculous. Did you get a sense the PO were straining not to release the KEL
AR couldn't say
JB – woah. KEL is not a doc. It's not in our control etc this is all wrong
AR at the time I didn't know they were wrong. I believed my instructions – didn't think there was an attitude on my client's part
JB what about later…
… when you some KELs – did you ever think – how on earth did we assess that these weren't relevant
AR well maybe two years later…
JB had the caravan moved on
AR litigation is very intense and you work on each problem/hearing at a time and you can deal with the issue you…
… are facing at the moment without looking back and asking questions. I do remember being surprised and concerned that such a fundamental point could be so wrong. but I imagine the focus of my concern was F rather than PO.
JB goes to the Swift Review from mid 2016 and an AP email about it
More:
Last bit
[blimey]
JB so Jonathan Swift QC had conducted a review and three of his recomms are highlighted here
AR yes
JB and these were made in part to correct potential miscarriages of justice. Tim Parker, the chairman wanted to do those things
AR yes
JB but the PO did not want to do what the chairman wanted to do. Who at the PO
AR no idea.
JB but you were told the chairman wanted to do something that the business did not want him to do which was investigate potential miscarriages of justice
AR correct
JB and it seems AP supports the business.
AR yes
JB and the other reason for stopping TP's work was because of privilege and it would be safer
AR yes
JB and safer means that if the investigation…
… was negative and harms the PO's interest, it's safer and better as if it's privileged we won't have to tell anyone.
AR yes, but things might be different in regards to the criminal process
JB that's why I asked you earlier about statements about disclosure
AR yes and I was looking at it from a civil perspective
JB would you agree that AP was looking at this from a narrow civil litigators perspective
AR yes
JB yes that's not the only perspective tho is it, for a company like this
AR and that's why it needed other advice
JB was that made clear to TP. that safe for PO in civil litigaiton isn't necessarily safe for people whose lives have been blighted by a miscarriage of justice
AR wouldn't have known
JB good for the PO in the litigation isn't nec good for the PO, Subpostmasters or the public
AR agrees.
JB goes to his reply "not here to provide political cover, but I am concerned that the client should protect its interests"
JB you're saying don't deploy me for this purpose
AP yes
JB reads the whole email out… just summarising that… you were saying we may not be doing that investigation anyway – so a debate about this might be irrelevant as there wouldn't be a dual investigation
AR agrees
JB goes to AR's response
JB was the critical point preserving privilege or was that putting things upside down
AR privilege was critical to the claim
JB no recognition that a leading silk had considered miscarrs – was that because all you cared about was the civil claim
AR yes
JB was the preservation of privilege a good enough reason to shut the Chairman down
AP would not have put it like that
JB let's go to your response [reads it out in full]
JB you are saying in this email you want the investigations to be undertaken
AR yep and I'm saying the Swift recs are a good thing as they might provoke PO to do them
JB AP was rather straightforwardly suggesting that the legal proceedings would provide cover for not doing the rec investigations
AR maybe in his first email… not by the second
JB takes him to it
AR I would agree with his first sentence not his second (highlighted below)
JB in any event, if there's an issue of miscarrs, should there not be an investigation immediately
AR not in my scope
[JB takes him to AP's next thought]
JB. you agreed in the event that from the narrow civil litigation perspective this was the way forwards
AR yes, do the work, but do it under litigation privilege protection
[JB takes AR to AR's reply – notes it happens all day 8 June 2016]
JB we know we don't have a note of the conference you and AP had the next day – do you remember what was said?
AR no recollection of it at all
JB this is AP's recollection in his WS
JB says AP's WS summarises the email chain we've just been through adding commentary. We're not going to look at that, but we are going to look at par 421
This is par 421.
JB You agree that privilege is the overriding consideration
AR yes
JB and you agree the investigation should be done from a pure litigation perspective – ie it's important to the outcome of the civil litigation it's done
AR yes
JB you weren't saying in your original email that you should do them artificially within the litigation in order to protect privilege
AR no
[we go to an new email exchange, started by Jane McLeod in July 2016]
The rest of the ten…
JB reads out this point: "PO has received very strong advice from its external legal advisers that the work being undertaken under the aegis of my review should come to an immediate end…
… and instead these issues should now be addressed through equivalent work taken forward under the scope of the litigation."
AR yes.
[… sorry forgot to put in the question…]
JB is that a fair summary?
AR yes
JB reads a new doc
JB focuses on "Robinson reviewed the advice and recommendations put forward by Mr Swift." – did you?
AR must have done
JB reads on the other half of the letter. asks him if he did advise in the way described in this letter?
AR can't remember
JB well did you advise 4 – 8 and not the 1 – 3
AR can't reconcile what's written here with the 8 June email
JB you said the investigations should be taken forward to the extent they advance the PO's case – that's a spin on it, isn't it
AR yes – not sure about this tho
JB there are further caveats here
AR yes I find this hard to reconcile
JB this is a different representation of your views to the ones you personally expressed
AR yes and I'm not sure why
JB the letter concludes the work should be carried out by the PO legal team [reads on] – that is consistent with your email exchange
AR yes
[we have a break]
[we are back – Jason Beer now wants to talk about the First Simon Clarke Advice – read it here: www.postofficescandal.uk/post/the-first-clarke-advice/]
JB we are going to discover you were provided with the First Clarke Advice [FCA] in 2018
JB takes AR to the FCA conclusions (correcting it to Gareth Jenkins – he is not a Dr and is not called Jennings)
par 38 in full
… [this was produced on 15 July 2013 btw]
JB takes AR to an AP email from 2018 attaching the FCA
Email ends…
JB so you are being told about a meeting with "the criminal guys" with the FCA attached. Did you express surprise that you were only getting the FCA 5 years after it was written and two years after you were instructed?
AR this was given to me 17 days before we had to serve…
… complete WS for the H issues trial – very surprised as this was v late in the day
JB you refer to the creation of statements etc v late in the day during the litigation
AR yes I called it firefighting – it's not the best way to do it
AR it was "awful… exquisitely painful" made it very hard to do our job properly
JB why, 2 years into your instruction were you told about a GJ problem. Had you been told before this?
AR possibly informally with AP – can't be sure,
JB nothing as startling as this
AR no
JB this must have been very concerning indeed
AR it was concerning
JB there was a conference on 10 Sep, but no attendance note
AR oh
JB despite the number of lawyers attending
JB so we've had to reconstruct from fragments. it was an important conference
AR from the Inquiry's perspective certainly
JB takes him to his WS
JB so the solicitors here are Cartwright King
AR yes
JB had you met "the criminal guys" before
AR don't think so, no
JB spoken to them about GJ's reliability or unreliability
AR no recollection of having done so
JB did you ever speak to GJ about the FCA
AR oh no
… don't think I ever even met him.
JB goes to a new doc
Notes it's written after the H issues trial but before the judgment had been received
JB goes back to par 2 – notes he is still being called Dr GJ
JB reads most points in the above out.
Continues… notes letter states GJ was a "possible criminal breach"
reads out all of point 4
and 5
JB is that account of the 10 Sep conference accurate
AR it's a fair summary
JB so the reason for not calling GJ was on the basis of the problem: unreliable witness… given false evidence
AR unreliable evidence
JB so those were the reasons GJ was not called
AR he had said things or not said things which had undermined his credibility
JB and given misleading evidence
AR and breached his duty
JB and was regarded as such by the PO
AR yes
JB did any of the lawyers say that GJ had not been properly instructed
AR no
JB or that the duties of an expert witness had not been explained to him
AR no
JB any disco about the PO's broader conduct
AR no would be surprised if there had been – not the purpose of the meeting
JB did you ask to see any underlying material behind the FCA
AR no took it as read
JB did you ask your solicitors to talk to F
AR no this was a meeting about our tactical position for the H trial
JB was there any disco about the assessment of GJ
AR no
JB any disco abut informing GJ of the PO's opinion of him
AR no
JB was there any disco about what had been explained to F about why GJ was not called
AR v surprised if it had been – details are not clear – this was about allowing the legal team to prepare their evidence for the case
JB takes him back to the WBD note and picks up at 5.4
JB if 5.5 is true – that would be a false explanation, wouldn't it
AR seems so. desire to keep from F the issues discussed in this paper – the wording was kept ambiguous
JB bit more than ambiguous, isn't it? It's false.
AR that's fair
JB "we do not believe F are aware of the issues in this paper" – your understanding?
AR don't know what F did or did not know
JB is 5.6 a false explanation too
AR economical with the truth
JB and therefore false
AR yep
Here is 5.6 onward
JB takes him to an email from Jonathan Gribben at WBDN. Notes GJ is involved…
JB takes him to Simon Henderson's reply, which is about privilege
JB takes him to AR's reply – which notes GJ is doing the work and the fact "we all know" why GJ is not doing it – is that for the reasons disco'd on 10 Sep confy.
AR yes
JB you say these are also reasons for not having him as a source of evidence
JB so you're saying the three reasons for not using him as a witness apply with equal force for not using him as a witness behind the scenes
AR yes
JB in summary you come close to the same conclusions as the judge
AR not sure that's the case
JB would not the idea that GJ's involvement pollutes the stream of evidence from the witnesses who had been called
AR either way we'd decided not to use him as a witness
AR and therefor we should limit his involvement
JB you go on to say he's popping up everywhere and is now on Steve Parker's team. You were dissatisfied about this?
AR yes
JB did you become aware there was a team of people helping with the H trial witnesses
AR yes
JB and there was evidence that only GJ could provide
AR yes and that's when we had to rely on him, but I wan'ted to make it clear it should be kept to a minimum
JB should GJ have not been told he was regarded as an unreliable witness
AR didn't consider that for a second – did not know what he was or was not aware of
JB to what extent was that disco'd on 10 Sep – GJ is an unreliable witness, but we need to use him
[JB reveals the Inquiry has lots of emails which reveals the extent of GJ's involvement in the H trial]
JB takes us instead to the H issues judgment in which the judge says he prefers the evidence of the claimants' expert Jason Coyne to Dr Robert Worden – the PO's expert.
JB so it's fair to say that the judge's view of Mr Godeseth and his evidence was affected by the involvement or non involvement of GJ
AR I'm cross about this – that's an understatement
JB cross with who
AR cross it happened. We advised on a protocol for the giving of info from F to Dr Worden – at the beginning we made it clear that to the extent any info was given to DrW this should be recorded so there should be equality of info given to the claimants' expert…
What the judge describes here should not have been possible. Any new info from F should have been recorded and given to Mr Coyne as well and I'm astonished and cross it didn't happen.
JB you gave that advice to WBD
AR yes – there's an email about it in the docs you provided
JB did WBD do this with the PO
AR I believe they did – what would be the point in preparing a length document if it was ignored in practice.
JB do you know if that was the witness's refusal Dr W's refusal to carry it into effect or the PO's failure?
AR the basic thrust of the protocol was that DrW would not be in contact with F without WBD being there to take a note…
… Don't know if DrW was in contact on his own with F, but that should have been presented if it was. I still assume DrW would be with WBD, so any failure to record and give it to Mr Coyne is WBD's
JB this compounds the use of GJ doesn't it
AR partly accepts
[second morning break]
[and we're back]
JB we dealt with 10 Sep re GJ's use as a witness to Bates v Post Office, how much he was used outside the courtroom and what was revealed to the claimants and the courts
[takes him to the PO's closing submissions for the H trial]
JB notes they are 500+ pages long, dated 27 June 2019 and signed off by your juniors. Did you draft these
AR certainly approved them
JB and so read them all and signed them off
AR yes
JB takes him to p64 par 138 – tells AR there will be three sections he wants to take him to
Reads par 138 then goes to p 66 par 143 and reads that and par 144
Here is all par 144
JB the explanation here does not reflect the true reasons why GJ was not called
AR no
JB they did reveal the true position, did they?
AR look at par 144.1 – there would be criticisms made of GJ
JB where does it say that
AR reads par 144.1
AR what that was doing was signalling to the judge that there were things GJ had said and done would be the subjsect of critcism – that was being clearly signalled to the judge
JB that was being open and candid with the court was it?
AR it was being made clear to the judge there were issues with GJ's evidence in crim trials – there would have been matters to put to GJ if he gave evidence – and the judge accepts that – I don't accept that's misleading at all. We weren't entitled to refer to the FCA. It's…
… true we didn't say he'd be a terrible witness, but we gave a sufficient indication of the sort of concerns we had
JB the real reason, we established this morning was a) he was an unreliable witness b) the PO could not rely on him c) he had given false evidence in crim
… proceedings – none of that is in the closing
AR they are not three things – par 144.1 signals the general problem to the judge quite clearly and is not misleading
JB really? quite clearly? is that what you're saying
AR yes
JB at most this is saying this could become a distraction to the your trial, judge – that's the most it's saying
AR disagree
JB who signed this off within your solicitor team
AR no idea how high up this went – AP would have signed it off
JB what about PO
AR no idea
JB given your experience – what would be the reaction of the judge if he were told the real reason GJ wasn't present
AR you're asking me to answer a q based on a proposition I don't agree with – par 144.1 made the point and I think in the judgment the judge understands that
JB lurking beneath the surface was a different set of reasons
AR no – you're entitled to say we could have been more emphatic
JB thank you!
AR you're welcome – but wrong to say it's misleading
[JB takes him back to par 138]
JB this is the same point as 144.1
AR nothing is being..
… concealed from the judge.
[JB takes him to an HSF attendance note]
And the list of questions:
JB why think it was surpression
AR you're reading too much into this – I am prone to speak in a colourful way this was informal conversation between litigators
JB in what way was it informal?
AR an informal briefing of colleauges
JB so this is overly colourful language
AR yes
[JB ends Sam Stein KC for a group of SPMs picks up]
SS what were you trying to say to the judge?
SS what future event are you flagging up?
AR who said it was future event
SS what other reason could there be.
AR no this is slightly unreal
SS did Mr Green KC (claimants lead barrister) know that GJ had misled the court
AR I imagine not
SS explain why GJ's misleading of the courts was not disclosed to the claimants
AR it was privileged
SS did you look into that – did you actually wonder if it was privilege
AR no. why would I think it was not privileged
SS did you look to see whether the source of the information was privileged
AR no I got it from the note
SS so that's how you dealt with it?
AR yes and if I made a mistake I'm sorry, but that's still how I view it now
SS did you not think about the iniquity exception?
AR no
[SS ends. Now Ed Henry KC for more SPMs. Takes him to a the initial thoughts email from AR to AP – wants to look at point 2]
EH you wanted to draw a distinction between the existence of bugs and the expert evidence issue
AR yes
EH you were frank about having no criminal exp at – never sat as a crown court recorder
AR correct
EH but you clearly identified the misleading evidence point from the expert
AR might have done so from the claimant's letter before action
EH but you clearly ID'd it
EH if there had been successful appeals crim between 2013 and 2019 that had blown open the misfeasance of GJ that would have made the H issues trial harder to defend
AR no I don't think so, it would have made it more desirable not to rely on GJ
JB surely that would have gravely if not fatally undermined your defence
AR that overlooks the q's in the H trial
2. did bugs cause errors
3. did F use remote access to change the Claimaint's accounts
AR so no I don't accept what you're saying – that any crim appeals would blow a hole in the PO defence
EH but the crim appeals would have blown open points 2 and 3 – errors and remote access
AR you're assuming whether CoA would consider specific errors cause specific losses…
EH takes him to the HSF attendance note – GJ's involvement would "kill our case". so if that was known it would be fatal
AR it would make it uncomfortable
EH had you called GJ in the H trial, you'd have to disclose his failures in crim trials
AR may be best in his witness statement – not sure about the legal position
EH is that not an uncontroversial point?
AR I'd need to think about it
EH those matters – even an experienced litigator would have to have telegraphic powers to work that out from your closing statement
AR do not accept the proposition that one can't see the essence of what's being signalled to the judge – that is my view
EH the words you used to HSF – GJ would have been killed at trial… how?
AR had he given evidence he would have been cross-examined on previous statements and the court would have come to the view that he was unreliable
AH it would have become public – the JFSA and the public
[sorry – meant EH in that last line]
AR it wasn't in my mind at the time
EH it could have helped thoughts of appeals
AR not in my mind
EH sure?
AR sure
EH were you captive to your pro and lay clients that you were again and again offering misleading
… submissions to the court
AR which ones
EH the KELs issue
AR that's the most extraordinary question. If I can unpick it… the KEL submission was made at an early stage – that the KEL was a trivial document… my instructions that the KEL was not under my control…
… was made on the basis that was given to me by WBD from the PO. On what basis could I xe my clients on this?
EH but again and again according to the H judgment, info received from AP in particular was found to be wrong
AR early on it was
EH were you misled?
AR I was misled about whether the KEL was in PO's control and I was misled about its relevance to the GLO's proceedings
[EH ends – now Claire Dobbin KC for GJ]
CD did you see his WS from crim proceedings
AR no
CD transcript of the Misra trial
AR no
CD spoke to him during the litigation
AR never met or spoke to him
CD did you know about GJ's knowledge of the position he was in in the PO's view
AR didn't consider it
CD so you thought the contact between DrW and GJ was mediated by WBD
AR yes
CD how sighted were yo on the work being done by F staff on the H trial
AR a recipient – no sight of the process
CD so GJ correcting some evidence about remote access
AR would not have known about that – just the outcome
CD does it follow you did not know that GJ had worked…
… to correct evidence about remote access.
[CD ends – chair Sir Wyn Williams picks up]
SWW the conference on 10 Sep 2018 when GJ was decided as not being called as a witness – was the material which justified that the FCA and any oral elaboration?
AR correct
SWW your agreement of not using GJ was wholly dependent on FCA and SImon Clarke's reading of the situation
AR yes
SWW it was decided that reasons should be given to the judge in the H trial, but no one had asked for those reasons
AR correct
SWW I've never come across that before
SWW a judge being supplied with reasons for a witness not being called without being provided with supporting evidence – Mr Justice Fraser said no evidence had been provided
AR counsel can inform a judge as to why things were or weren't being done without a WS
AR par 144.1 was not provided with a thought the judge would accept it rather than explain it away
SWW so what was the purpose of it
AR I ask myself the same question – I ask what good it would do and I don't know. Wouldn't cause the judge to change his mind – not sure why…
… we even bother including it. Might sound odd. Might have left it out with the benefit of cold reflection.
SWW okay thanks for your evidence
[adjourns till 2.30pm – Lord Grabiner is up next]
[we are assembling. Grabs has turned up carrying cane, presumably to whack the impertinent]
[Lord Grabiner (LG) is sworn in and has agreed his witness statement subject to a couple of minor corrections. Brief canter through his career – called to the bar in 1968, took silk in 1981 has been Head of Chambers at One Essex Court for 30 years until a couple of weeks ago]
[ran a commercial practice in banking and finance, energy oil and gas, civil fraud and other stuff.]
JB you acted in the Bates v Post Office group litigation centred on the application to recuse Mr Justice Fraser (MF)
LG correct
JB turns to first instruction in recusal Fri 15 March 2019?
LG correct
JB so the Common Issues judgment given to the parties on 8 March 2019. H trial started on 11 March
JB takes LG to initial instruction
JB notes the time 10.42am and moves to LG's email
JB so by this time – 15 March you'd read Gideon's note and Lord Neuberger's observations.
LG correct
[JB takes him to Gideon's doc]
JB it's signed off by David Cavender, Gideon and Stephanie – why call it Gideon's doc
LG mayb he gave it to me
JB it's signed by 3 counsel
LG it is their product
JB this is the start of a 15 page analysis of the judgment
JB this is not a neutral document
LG it's an advocate's doc – but that doesn't mean it's not accurate
JB it's a piece of advocacy
LG yes but the authors thought these arguments were sustainable
JB takes him to Lord Neuberger's observations
Lord Neuberger says there is a reasonable grounds.
JB what does that mean – arguable?
LG more so knowing LN who is more cautious than me
JB on the words as stated you agreed with his assessment
LG yes
JB you agreed with LN's assessment without reading the judgment
LG yes
JB who originated the idea of recusal
LG no idea
JB was it being driven by the solicitors
LG no idea
JB the PO board
LG no idea
JB Cavender
LG no idea
JB was the team feeling a little bruised
LG sure they were. Jane McLeod (PO GC) said this came out of the blue and they had no idea the judge was going to take such a strong position against them