Reporting the class action against the Post Office at the High Court
Fifteen days doesn’t sound like much, but I feel like I’ve been through the wringer. Trying to synthesise and process the volumes of information which have come out of this trial is going to take weeks. I will give you a quick summary of what happened today and then take you to the next stage, which in many ways is more interesting.
Today was, like yesterday, the slow, methodical demolishing of the edifice which the JFSA, Freeths and Patrick Green QC have built up over the past month or so. Mr Cavender QC cut a knowledgeable, urbane and extremely assured presence. I sensed he was in his comfort zone – delighted to take the court step by step through the apparent flaws in the JFSA’s claim, but equally happy to think on his feet and spar with the judge as the situation required. He was convincing as he pursued the same argument as yesterday. Which is:
The Post Office has the right to do as its contract suggests. There is nothing in the contract which is obscure, hidden or designed to spring traps on Subpostmasters. It is all there in black and white and if you didn’t get that contract or didn’t ask for it or didn’t read it before lumping your life savings/nest egg/pension fund into that deal, well…
The inference was clear – who goes into business, who risks almost everything without asking for their contract or taking legal advice on it or both?
You can complain after the event to the high heavens, but in business-to-business agent/principal situations you do the hard yards. No one was being taken advantage of here. The law assumes you are going to do some due diligence and the law assumes due diligence involves reading the contract.
Run that alongside the position stated position yesterday – that the Post Office is entitled to believe that Horizon’s figures are correct because it is generally reliable, and you have a recipe for disaster.
A possible unexpected side effect of this hardball position is the warning signals it sends out to existing Subpostmasters. If, contractually, you and your business and your entire family’s livelihood are at the whim of a computer system you have no control over, you’re f***ed. Having seen the performances of the procession of employees called to the witness box on behalf of the Post Office there is no way I would let them near my business in a million years. Yet they are authorised to take life-changing decisions with no implications for them, even if they get those decisions catastrophically wrong.
I said in a previous piece: if you are a Subpostmaster and you read the factual information that now exists on the record about the NFSP and you still believe they are looking out for your interests, you are fool (they unfortunately refused to advance a counter argument to that, but I am all ears if there is one).
To the above I would add: if you consider taking on a branch Post Office, and read the factual information that now exists in the public domain about the risks of doing so – you are taking one hell of a gamble, with very little obvious upside. Apart from footfall, of course.
Respect my Authorities
So how do we get to a judgement? From what I have been able to ascertain, each QC delivers a binder of case law to the judge, thoroughly marked up, directing his Lordship to the specific judgments which each party thinks has a bearing on the law with regard to this case. Contract law appears to be a well-developed area and there are lots of landmark judgments made at the Court of Appeal and the Supreme Court which are binding on the High Court.
The judge then asks which judgments the QCs want him to favour at and how they want him to consider them. The judge may also have his own view on what he thinks important, and he will occasionally mention this – or more likely challenge the QC on their interpretation of the case law he is presented with. In this way, the judge is not only given the measure of the case, but what both parties say are the parameters in which he should make his judgment.
This trial has generated vast tranches of data. Off the top of my head:
Claim and particulars of claim
Common Issues and pleadings
Opening statements x 2
Witness statements x 20
Documentation put to witnesses (thousands of pages)
Daily transcripts (ie oral evidence and cross-examination) x15
Closing submissions x 2
Claimant statements 500+
The closing submissions alone are 200+ pages each. The Authorities can be between 20 and 200 pages, the claimant witness statements are vast. Some of the documentation are Post Office manuals which are more than 100 pages long.
The judge doesn’t necessarily have to go through every word on every document, but he certainly has to take note of the important ones, and I would say that’s probably at least 2000 pages of relevant technical data, personal experience and nuanced legal argument, much of which he will have to read more than once.
His job is to funnel all that information into his decisions on the 23 Common Issues. It is a big task. I have already uploaded a version of the Common Issues which has a lot of pleading references attached. The judge asked for a clean version. He got that last week. I was issued with it on Monday. Have a read. This afternoon he rather sensibly asked the QCs to give him two more versions of the Common Issues in which each QC states the judgment they wish him to make after each issue.
At the end of the trial there was quite a bit of what Mr Cavender called “housekeeping”. Various documents and bits and bobs were requested and/or ordered. The Post Office found its own encryption of Liz Stockdale’s interview impossible to crack, which is great for them as it might have corroborated her witness statement in the same way Louise Dar’s lately-discovered interview transcript corroborated hers. The judge has ordered a witness statement from the Post Office on why it has not proved possible to crack their own encryption keys. The judge also asked for a proper flow chart on the process of dealing with a) a Transaction Correction and b) a shortfall when submitting branch accounts.
All this takes us up to Christmas. The judge has ordered a Case Management Conference [CMC] on 31 January 2019 and put the parties on notice they can expect a draft judgment under embargo from 14 January 2019 onwards, which gives us a two week window during which the public judgment will be handed down.
The CMC is to decide the date, terms of reference, agreed quantam expert (likely a forensic accountant) and number of claimants to be tried in what will most likely become known as round three: the breach trial.
The judge has a duty to expedite proceedings, but the lawyers obviously want things to last as long as possible as it means more money for them. At one point the judge lost his patience and said he didn’t wish to be abrupt or look like he was trying to steamroller the parties, but if it was not possible to try the cases of all six of the Lead Claimants in October 2019 he would schedule a trial for every judicial period thereafter in order to get to a resolution in the case starting in Spring 2020.
At this point I (temporarily, m’lud) lost patience with the judicial process. If the only way to steamroller the parties into doing something positive is promise them five weeks in court three times a year until one of them folds then you have a problem.
So we’ll get our first judgment in this epic saga in six or seven weeks, then we’ll get a confirmed date and structure of the third trial, then on 11 March 2019 the second Horizon trial starts.
I personally think someone needs to take this process by the scruff of the neck and boot it into the world of politics, media and public affairs or the legal action will continue ad infinitum until one party runs out of money, and I suspect that party will be the JFSA.
Some thank yous. This blog simply would not exist without the extraordinary and continuing generosity of the people who have backed it. Whether you were one of the people who put some money into the kickstarter to get the project off the ground, or you read an email and decided to put some money in the paypal tip jar OR were some of the ridiculous and over-kind people who did both, I cannot begin to thank you enough. I have been sent £60 alone today by people who have already donated to the cause and I feel both guilty and slightly overwhelmed.
Although I am slightly shy of the £12K I need to cover both the Common Issues and Horizon trial, you will have my reportage for most of the Horizon trial in March, the CMC in January and the Day of (Common Issues) Judgment whenever that is in late January- and I will continue work in my own time to order and post information on www.postofficetrial.com
Could I also reiterate my request for guest blog posts. I have received one brilliant one from a former Subpostmaster already, which I will post next week. I need more. Your measured and reasoned and evidenced thoughts on the Post Office, the NFSP, the CWU, the government, the trial, the JFSA, the media, the lot. I want to hear it and I will work with you to ensure what you have to say is presented in the best light. You can be anonymous if you need to protect yourself against recriminations.
This has been an incredible and potentially fraught personal experience for me. I had to stop doing television news reporting before I even started trying to get the crowdfunding going. Thankfully the extraordinary generosity and wherewithal of a few people meant we passed the initial crowdfunding target within four days. Many of them have to remain nameless but I do want to thank Alan Bates. I know I give him a hard time and I think I’m right to give him a hard time, but he very kindly told an awful lot of people about the kickstarter campaign and if it wasn’t for him doing so (unasked), the reporting of this trial simply wouldn’t have happened in the way it did.