One of the most extraordinary episodes in the Bates v Post Office group litigation was the Post Office’s attempt in March 2019, in the middle of the Horizon trial at the High Court, to have the managing judge, Mr Justice Fraser, recuse himself on the grounds his first (Common Issues) trial judgment was somehow biased.
During the recusal hearing, which took place in April 2019, the Post Office’s QC, Lord Grabiner – a true legal Big Dog – told Mr Justice Fraser:
“This is regarded as an extremely serious application to be making. It was made at board level within the client and it also involved the need for me to be got up to speed from a standing start. And I am not the only judicial figure or barrister that has looked at this… It has also been looked at by another very senior person before the decision was taken to make this application.”
The hitherto unnamed “judicial figure or barrister” involved in the recusal attempt was Lord (David) Neuberger, former President of the Supreme Court of the United Kingdom, now Lord Grabiner’s colleague at One Essex Court chambers. This information has been confirmed to me in a much-delayed answer to a Freedom of Information request I made in November last year. The delay was due to the Post Office deciding whether or not it was in the public interest to tell me.
The shadowy “judicial figure” has always been the subject of intense speculation in the legal and political world, not least because almost everyone I spoke to thought the recusal attempt during the Horizon trial was both morally illegitimate and deeply cynical.
Every legally-qualified person I spoke to variously thought the recusal attempt was desperate, doomed to fail and/or little more than a delaying tactic. And let’s be clear what it was delaying – justice. It prolonged the agony for hundreds of people who had their lives materially changed for the worse by the Post Office.
At the time the application to recuse Mr Justice Fraser was made, Patrick Green, the claimants’ QC, told the court it was “likely – if not calculated – to derail these proceedings.”
Once the application got to the Court of Appeal it was given the contempt it deserved. Lord Justice Coulson described it as “misconceived”, “fatally flawed”, “untenable” and “absurd.”
Coulson set out his findings in some detail over 19 pages, but emphasised he was only doing so “because of the volume and nature of the criticisms which have been made and the importance of the group litigation to both parties.”
He made it clear he was not giving such a detailed ruling “because of the merits of the application itself,” which he said was “without substance.”
Lord Coulson added:
“It is a great pity that the recusal application and this application for permission to appeal have had the effect of delaying the conclusion of the critical Horizon sub-trial. Indeed, the mere making of these applications could have led to the collapse of that sub-trial altogether. Although I can reach no concluded view on the matter, I can at least understand why the [claimants] originally submitted on 21 March that that was its purpose.”
Given the opprobrium heaped by all sides on the recusal application, one wonders why on earth Neuberger got involved. He must have known how his seniority would be weaponised.
Lord Grabiner’s statement that he was “not the only judicial figure or barrister that has looked at this” was careful and deliberate. Fraser was being warned off.
In his rejection of the recusal application, Lord Justice Coulson said:
“Such a comment, presumably made in terrorem, should not have been made at least without proper explanation of its relevance.”
It wasn’t explained. It was left hanging there. Well – at least we now know who it is.