Lord Grabiner strode into the Inquiry hearing room wielding a walking cane. As he didn’t appear to be using it to support himself it rather gave the impression it might be utilised to punish impertinence. Jason Beer KC, who asked questions on behalf of the inquiry, appeared unruffled.

Grabiner was called to explore his apparent firm belief that there was something so wrong with Mr Justice Fraser’s Common Issues trial judgment that Fraser should be removed as managing judge of the Bates v Post Office group litigation.

Grabiner’s ace in the hole was a six page document written by Lord Neuberger on 14 March 2019. This generally supported the idea of putting forward an application to have Fraser recuse himself. Lord Neuberger is no ordinary law lord, he is a former President of the Supreme Court. At the time of writing his “Observations on Recusal Application“, for the Post Office, Neuberger was working for One Essex Court, alongside Grabiner (Head of Chambers) and David Cavender KC, leading counsel for the Post Office during the Common Issues trial. They all, therefore, had skin in the game.

Both parties had sight of the draft Common Issues judgment on 8 March 2019. The second (Horizon Issues) trial in the Bates v Post Office group litigation began on 11 March. The Common Issues judgment was handed down (made public) on Friday 15 March and the recusal application landed on Thu 21 March. On that date, the trial was adjourned so Lord Grabs could be invited to have Mr Justice Fraser recuse himself on 3 April 2019.

This is how it played out behind the scenes on the Post Office side. At 10.42am on 15 March 2019, Grabiner was asked for his advice by the Post Office via his clerk. By 11.58am Grabiner had read Neuberger’s “observations”, and a 13 March document by David Cavender called “Note on background to possible recusal application”. He felt able to agree there were “reasonable grounds for an argument for recusal”.

Grabs admitted he reached this position, in Jason Beer’s words “without reading any transcripts… without reading any orders, submissions, witness statements, statements of case”.

Grabiner also told Beer he had no idea who originated the idea of recusal, whether it was “driven” by Womble Bond Dickinson, the Post Office executive or the Post Office board. All he could remember was being “told by Jane McLeod [Post Office General Counsel] that the decision from the learned judge came as a bolt out of the blue and was rather a shock to them, because according to her telling me, they hadn’t appreciated that he’d taken such a strong view against their position.”

(Non-legal) Duty to Act

By Monday 18 March Grabiner had read the Common Issues judgment. He held a conference at his chambers with Jane McLeod and WBD. Grabs is recorded as saying the Post Office had a “duty to act” and apply to recuse the judge. As the note of the meeting records:

“Lord Grabiner explained that in his view, If there is no recusal application made, then Post Office will lose this series of trials that set up in this matter. Without a recusal application, Post Office is stuck with this judge. An appeal on the law may correct some of the very significant errors in the Common Issues trial judgment, but then the case will be sent back to this judge, who has demonstrable apparent bias against the Post Office and hence the firm conclusion that Post Office will lose and the financial impact of that will be substantial. Recusal is therefore essential… it was Lord Grabiner’s view that there was a duty on the Post Office to seek recusal. Lord Grabiner stated that in his view, the Board of the Post Office had no option but to seek recusal.”

Beer wanted to know if Grabiner was telling the Post Office board it had a legal duty to act.
“No,” replied Grabiner “I’m simply advising them as a lawyer as to what I think they ought to do, and that’s what I’m paid to advise them about.”

Two Lords a-Bolloxing

McLeod was stuck. She was getting strong advice from one of the biggest legal dogs in the country: applying for recusal was the Post Office’s duty. Yet McLeod wasn’t sure if her bosses, as she wrote, had “the stomach” to do it.

Lord Neuberger was due to speak to the Post Office board by phone from Argentina that Monday afternoon. Grabiner had a medical appointment and couldn’t attend. McLeod arranged for Grabiner to speak to the board by phone on Wednesday 20 March. McLeod also told him the Post Office board wanted to speak to Neuberger that afternoon without Cavender or his junior Gideon Cohen present.

Grabiner immediately emailed Neuberger to tell him about his interaction with McLeod and WBD. First he told him “I advised that the clients had no choice but to make the application.” Then he said “neither David nor Gideon will be asked to participate in your call – the board seems to think that they will get a more detached view from you in their absence. I make no comment on that bollox.”

Neuberger replied:

“Excluding them is a bit unfair to David and Gideon, but I suppose one can see where the PO are coming from… I am anxious to ensure that nothing I say crosses with what you have said/will say or makes your task more difficult. I have the luxury of expressing a view and then stepping back, whereas you will be presenting the case and are the ultimate adviser.”

Beer wondered why Neuberger would be keen to ensure nothing “crosses with what you have said”, noting it correlated with a point in Neuberger’s witness statement where he wrote: “I was anxious not to give advice which was inconsistent with that of Lord Grabiner as he would be presenting the case and was the ultimate advisor.”

Up until this point in his evidence, Lord Grabiner had been acting with courtesy and politeness. Something seemed to change. Grabiner replied:

“Well what Lord Neuberger thought, I think you’d better ask him about. I can’t really climb into his mind beyond what he has said in communications that we have between ourselves that I’ve made full disclosure of.”

As Grabiner and the Inquiry well knows, Lord Neuberger is not being called to give evidence, possibly to spare such a senior person from being embarrassed by his actions*.

Beer noted the minutes of the 18 March board meeting which Neuberger called into stated: “Lord Neuberger reported that he did not yet know Lord Grabiner’s view of the case”.

Beer said to Grabiner:

“This record of Lord Neuberger saying that he did not yet know your view of the case doesn’t seem very consistent with the email traffic that we had looked at earlier when you’d been exchanging views, do you agree?”
“I don’t think I can comment really. I mean, this is for him, not me”, replied Grabiner, unhelpfully.
“Would you agree that he had known your view of the case by this point?” Beer pushed. “You told him on the afternoon of the 18th what advice you’d given to the solicitors in consultation that afternoon, and your views as the prospects of success.”
Grabiner was stuck. He groped for an answer: “Well, I’m not sure I can help further on the point. I mean, it may be that you’re right. I mean, the documents will speak for themselves” before suddenly alighting on “I don’t find this board minute particularly helpful or very clear at all, actually.”

On 20 March, Grabiner reiterated his advice to the Post Office board that it had “no option” but to “seek the recusal”.

The same day, Lord Neuberger wrote to Grabiner saying “I hope that they do not bottle it.”

Beer asked: “Did you gain any sense that the board was keen to take this step, applying for recusal of the judge?”

Grabiner stonewalled. “I’m afraid I didn’t get any sense at all. I mean, no doubt it would have helped if I’d been in the room, but I obviously wasn’t. But I had no sense of what they thought, or if there was any difference of view within the board on the subject.“

After the board meeting, Grabiner got the green light. He wrote to Neuberger: “We’ve been instructed to proceed. I don’t think the clients had any choice but they were reluctant to take such a serious step.”

In the Inquiry room, Beer asked again: “Can you recall on what basis you formed a view that the Post Office were reluctant to take this serious step?”
Grabiner replied: “I was given the impression that unless they were comfortable with the legal advice, the independent legal advice that they should apply for recusal, that they wouldn’t be comfortable in taking that step.”
Was this, Beer wondered: “essentially a lawyer-led decision?”
Grabiner couldn’t care less. “I just don’t know because I don’t know what went on in the board. I mean, they were getting the advice and they took the advice and they did it. It was their decision ultimately. But I have no idea what the individual views were of people on the post office board.”

Which judge?

Then the gloves came off. Jason Beer took Grabiner to an email he wrote to Neuberger after the application had gone in later that week on Thursday 21 March. Grabiner wrote that Mr Justice Fraser:

“has directed a hearing for next Wednesday week. Typically that was a date that he was told was not convenient for me. That case is now settled. So his rather pathetic attempt to dodge me has failed. That behaviour does rather confirm our suspicions about his Smith characteristics.” [this being a reference to the recusal of a peevish judge who had lost his luggage whilst presiding over a court case involving British Airways]

“Was this becoming personalised?” asked Beer.
“What do you mean by that?” retorted Grabiner, his voice suddenly filled with menace.
“No more and no less than the question”, replied Beer.
“What do you mean by personalised? As between who and whom?”
“Well, you and the judge.”
“Me and which judge?”
“The judge that you were applying to recuse himself.”
“Absolutely not”, replied Grabiner with some force. “My view was that he had made a mess of that case… I had certainly not developed any personal animus against him. It was exclusively concerned with the judgment and what had taken place in the trial.”

Beer took him to an email Grabiner sent Lord Neuberger on the day the Post Office’s recusal application was refused:

“As predicted”, wrote Grabiner, “Mr Justice Fraser rejected the application and refused permission to appeal. He also directed that the balance of the fact evidence in Horizon trial should immediately proceed. He has produced a 302 paragraph judgement, which at first glance confirms our concern that he is not fit to do the job.”

“Are you sure you hadn’t personalised it a bit?” teased Beer.
“No, that was my view and Lord Neuberger’s view” said Grabiner, growing visibly irritated. “It’s not a personal matter. It’s a view about the calibre or quality of the judgment.”
Beer disagreed: “It’s not the judgment, it’s the quality of the judge, isn’t it? It’s broadening it out from the quality of the judgment as a legal instrument to whether the man can actually do the job.”
“I don’t accept that,” replied Grabiner, contradicting what he wrote at the time. “My criticisms are about the quality of the judgment and the subject matter of the application for recusal.”

Tinfoil Hats Ahoy

Beer had more. After the Court of Appeal refused the Post Office permission to appeal the recusal application, Andy Parsons from Womble Bond Dickinson sent a note to Jane McLeod and Rodric Williams at the Post Office.

“One curious point is that this Order was made by Coulson LJ, former head of the Trade and Construction Courts [TCC] and Fraser is of course the current head of the TCC. Given Fraser’s comments at the handing down of the recusal judgment that he had warned the C of A that an appeal would be coming, it makes us question whether he lined up / had spoken to Coulson in advance. I’ve asked LGQC [Grabs] to think about this.”

From here, the conspiracy theory blossomed. David Cavender got wind and chipped in: “Yes, it looks very much like this is what Mr Justice Fraser set up in advance with his mate the former of the TCC unless you believe in coincidences. This is very bad news.”

Grabiner signed up in a summary to WBD: “We share the concerns expressed in the flurry of emails. It looks as if Fraser J has been speaking either to the listing office or even to Coulson LJ. Otherwise it would be a remarkable coincidence that of all the LJ’s presented with the papers they ended up by chance in front of the former TCC Judge although this is not a TCC case.”

It eventually fell to Lord Neuberger to be the grown-up in the room. In a draft response to Andy Parsons he wrote:

“I think that there is a danger that our justified belief, and consequent sense of grievance, that the Judge has gone badly wrong may have made us over-suspicious of some sort of inappropriate collusion between the Judge and the CA. It would be perfectly proper, indeed sensible, for the Judge to have warned the CA of a possible forthcoming application which someone should look at urgently, although I cannot of course rule out the possibility that more was said (but even if it was, that is not by any means necessarily sinister). Coulson L is the U responsible for civil procedure, so it is not entirely surprising that the application ended up before him. The fact that he made an instant decision with regard to a stay is also unsurprising because that was urgent, and the fact that he has asked for the claimant’s response is a (pretty good indication that he is considering the application on its merits, as one would expect.”

Perhaps with one eye on Andy Parsons’ appearance before the Inquiry on Thursday and Friday this week, Beer asked:

“So is it right, Lord Grabiner, that the theory regarding some form of inappropriate relationship or communication between the High Court judge and the Lord Justice of Appeal originated from Mr Parson’s email that we looked at first?”

Grabiner took the opportunity with both hands: “Absolutely!”
“And in the end, Lord Neuberger essentially poured cold water on it?”
“Very properly,” replied Grabiner, with a straight face. “I mean you can’t jump to conclusions about such a serious matter unless you know the facts, and we don’t know the facts, so it would be entirely inappropriate to reach the conclusion that there had been some… inappropriate collusion.”

Exquisite gracelessness

Possibly being aware that he was being made to look faintly ridiculous, Grabiner could not hide his displeasure when the next topic came up – a suggestion he might have changed his position over the recusal application’s chance of success.

It was introduced to the Inquiry in an email from Andy Parsons at WBD after the initial recusal application failed. Parsons told the Post Office via their General Counsel Jane McLeod that Lord Grabiner’s view remained that the Post Office’s prospects of getting the recusal if they applied to the Court of Appeal would “reasonable”.

McLeod wrote back. “Hi Andy, sorry to be petty,” she wrote, “Lord Grabiner QC told me when I met him – it feels like ages ago – that we had strong grounds to bring the application for recusal. When I challenged him on what our prospects of success were, he said, and this is not an exact quote, he wouldn’t say strong grounds to bring the application unless there were strong prospects of success. That now seems to be downgraded If that’s deliberate then I need to be able to explain to the board why.”

Parsons forwarded the email to Grabiner, who replied: “I haven’t downgraded anything.”

Beer queried this, noting the initial advice from Neuberger contained the word “reasonable” and that on 18 March, Grabiner was recorded as saying there was “a serious prospect of success.”
“Reasonable was not my word.” asserted Grabiner.
“It was in a sense to start with, wasn’t it, right at the beginning of the episode?” asked Beer.
“That was [Parsons’] summary, not my word.” said Grabiner.
“No, I meant right at the beginning,” corrected Beer, “when you were… adopting what Lord Neuberger had said.”
Grabiner was not happy. “I think you’re playing with words with respect… What I was, I think, being accused of, and this is something that you’d be familiar with over the years as a barrister, is being accused… by the solicitor that I had watered down my advice between point one in time and point two in time. That wasn’t true. My advice I think throughout has been consistent and I was making that clear in this email.”

Finally, Beer took Grabiner to an email in which Lord Neuberger told him that the client’s failure to run the recusal application alongside their appeal of the Common Issues judgment at the Court of Appeal gave them “an “out” in terms of our advice appearing wrong“. It led to the following grumpy exchange:

JB: Did you think that the client’s failure to follow your advice gave you an “out”?
LG: No I didn’t. and this is not something that has even crossed my mind.
JB: Did you discuss things at all with Lord Neuberger after the event? After perhaps recriminations started to begin as to whether or not you needed an out to explain away the advice that you’d previously given?
LG: I’ve never ever considered that I needed an “out” in this case. No.
JB: His suggestion that…
LG: … no I didn’t…
JB: … the client rejecting the advice on running the two appeals together did give you an “out”…?
LG: …absolutely not…
JB: Lord Grabiner thank you very much. They’re the only questions I have.
LG: I’m tempted to say thank you.

And with that moment of exquisite gracelessness, Lord Grabiner finished his evidence and skulked off into comfortable retirement.

* I asked the Inquiry for the official reason for Neuberger’s absence and they told me: “In the light of evidence the Inquiry holds and other oral evidence, it is unlikely that oral evidence from Lord Neuberger would provide any further relevant information to the Inquiry, however the Inquiry always keeps under review the need to call a witness in the light of any developments which may occur.”

Another barrister gave evidence yesterday. See De Garr Robinson’s Jenkins problem.
If you want to know why the Post Office won’t tell me how much Neuberger and Grabiner’s advice cost them (us), click here.

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