Arcane legal argument aside it was a fairly straightforward day in court. Lee Castleton and his team wanted a trial of all the issues in his claim against the Post Office. The Post Office (and Fujitsu) argued it would be easier, quicker and cheaper to first see if Lee was still bound by the Bates v Post Office settlement agreement signed on Lee’s behalf by Alan Bates and Kay Linnell back in 2019, which stops him from pursuing any further legal action against the Post Office.

This was the “split trial” argument and it won the day. The Post Office successfully persuaded Mr Justice Trowers and Master Francesca Kaye that if Lee is held by the settlement agreement it’ll be difficult to maintain a claim against the Post Office. Bizarrely, thanks to what everyone has agreed is totally unsatisfactory law, he’ll also struggle to make a claim against Fujitsu, even though it was not a party in Bates v Post Office. This is because Fujitsu was a “joint tortfeasor”, essentially an accomplice to the wrongs that the Post Office was accused of in Bates, and when one party in a case likes this settles with a claimant and walks away, there is no liability on the “joint tortfeasor” whether they had any formal part in proceedings or not. The Court of Appeal recently (apparently) said this law sucks, but no one except the Supreme Court can change it, and no case has yet got that far.

Lee’s barrister Paul Marshall (almost as well known in this parish as Lee himself) argued that all the matters were intermingled, particularly as there was an argument to suggest the Bates v Post Office settlement was obtained by fraud. This is partly because the Post Office told the High Court in 2019 it had decided not to call Fujitsu engineer Gareth Jenkins as a witness, because, as they said at the time, they were “concerned that the Horizon Issues trial could become an investigation of his role in this and other criminal cases.”

In fact, the reason Jenkins wasn’t called to give evidence was because he was a tainted witness who had failed to tell the whole truth about the Horizon system when he acted as an expert witness in the prosecution of Subpostmasters. The Post Office withheld this information from the claimants and the court in Bates because telling the truth would almost certainly unearth the first Clarke Advice which would bring the whole group litigation crashing down about their ears. Hence the idea the Bates settlement was obtained by fraud.

Anyway – that was part a) of the claim. Part b) was whether the Post Office was motivated to pursue Lee Castleton through the civil courts in 2006/7 simply to protect Horizon and part c) is whether or not the Post Office procured the judgment against Lee Castleton through fraud.

The argument ran around the blocks and was quite difficult to follow at times. Once Marshall saw the direction of travel towards some kind of breaking up of the omnitrial he was seeking, he suggested that the issues in part a) could be dealt with as a simple matter of law over one or two preliminary hearings, but neither the judges nor the Post Office were keen to do that for reasons which escape me.

So a split trial it is, sometime before the “end of summer term” as it was put (judicial terms pretty much match school terms, if that helps).

The tactical battle

There is more to all this than meets the eye. Lee’s claim was filed in July last year. To date, neither Fujitsu nor the Post Office have filed a defence. I am told (by a legal source, off the record) this is because they don’t want to have to file a defence to the claims of dishonesty or fraud when it comes to Post Office v Castleton (2007) or Bates v Post Office (2019) if they can avoid it, partly because that might prove very difficult.

Also it can’t hurt to drag things out as long as expensively as possible when they know that Lee doesn’t even have litigation funding behind him. He’s got a very limited pot of cash and “only” has a £4m claim. Marshall made the point today that Fujitsu has already spent £700,000 on this case alone, and it hasn’t even filed a defence yet. I can’t imagine the Post Office won’t have spent similar sums.

Marshall’s attempt to go for an omnitrial, I am told (by a different legal source, again off the record) would force the Post Office and Fujitsu to show their hands ahead of any trial of part a), making it, and therefore the rest of the litigation easier to win, as they could build a more concrete case of the Post Office’s despicable behaviour against Lee back in 2006/7 and during the GLO. There’s no doubt they acted with something approaching malevolence, as the evidence to the Inquiry made plain.

Interestingly Marshall gave the example of the recently unearthed 2006 service level agreement between Fujitsu and the Post Office which acknowledged Horizon’s inability to reconcile its numbers coherently as an example of information which should have been disclosed to Lee Castleton at his trial, and yet wasn’t. He clearly thinks there could be more the Post Office is sitting on, which he currently can’t get hold of because the Post Office and Fujitsu haven’t even filed a defence, let alone moved to the disclosure stage.

The Post Office is riding a very odd-looking horse. It accepts it behaved badly, and it accepts Lee has a case against it, but says:

“It should be observed that the is defending this claim not because Mr Castleton is not entitled to redress – he plainly is – but rather because the Post Office considers that the correct route to that redress is through the compensation scheme designed specifically to support postmasters who were in the GLO Claimants group. The Post Office has made every effort to engage with Mr Castleton to seek to set aside the Marine Drive judgment [the 2007 judgment] and it remains more than willing to do so, but it does not accept that Mr Castleton’s claim in this litigation is a good one, and it has a duty to its shareholders to defend it. The Post Office has repeatedly encouraged Mr Castleton to submit a compensation scheme claim and it does so again now.”

Notwithstanding the fact the Post Office only has one shareholder, and that’s the government, so effectively we, the taxpayer – the point being made is “yes we acted badly, but we don’t want any examination of how badly, so please make a claim to our compensation scheme, so we can decide exactly how much we want to give you”. Fujitsu’s position is essentially “whatever they say”.

I’ll be honest, I’m not 100% sure of the wisdom of taking on the Post Office in a risky litigation with limited funds, when there’s probably a good couple of million quid waiting at the end of a compensation claim. But I am not Lee Castleton, who, in my eyes, is as much of a hero as Sir Alan Bates. He and his family suffered unimaginably after the Post Office did what they did to him, and the strength of character he has shown to simply still be here is extraordinary. If he wants a crack and has the legal firepower to do it, that’s his right, and I will report it.

The Post Office told me: “We are pleased that the court has decided in favour of progressing to a split trial. We believe that it is in the interests of all parties that the preliminary issues are resolved as quickly as possible so that this claim can reach resolution in a timely and cost-efficient manner. Our priority remains that Mr Castleton and all other affected postmasters get fair resolution and closure, and we remain hopeful that this matter can be resolved via the existing Horizon redress scheme.”

Finally, the judge today raised a big issue on all parties’ minds. Any trial into whether the Bates settlement can be set aside has implications for Freeths, the claimants’ legal firm in the group litigation and all 554 other claimants. He asked both parties to try to draft a joint letter to Freeths, setting out those implications, or, at least, explaining their perspective on the situation. It may be that other people seek to join Lee’s attempts to set aside the settlement, or potentially contribute to the legal argument.

If you would like to read through the live tweets of today, formatted and made nice on this website you can find them here. If you would like to read Lee’s claim against the Post Office, plus today’s skeleton arguments, made by Lee, the Post Office and Fujitsu, you can do so here. If you are new to all this: welcome, do have a look round and please consider the message below!

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