Professional Documents
Culture Documents
Bates V Post Office: Post Office Skeleton For Recusal
Bates V Post Office: Post Office Skeleton For Recusal
B E T W E E N:-
Claimants / Respondents
– and –
Defendant / Applicant
1
This application
1. Post Office applies for an Order that the Hon. Mr Justice Fraser should recuse himself
as the Managing Judge of the Post Office Group Litigation. In that context, Post
Office also seeks an adjournment of the current Horizon Issues Trial.
2. The Court is familiar with the background, and for that reason this skeleton argument
is narrowly focused on the subject matter of this application.
Background
3. As a result of the case management process, this litigation has been broken up into
separate trials, namely:
(a) the trial of the Common Issues, heard in November 2018 and for which
judgment has been given (Judgment No.3);1
(b) the trial of the Horizon Issues, focused on the operation and effectiveness of
Horizon IT system provided by Post Office and used by the Claimants. This
trial is part-heard and currently adjourned; and
(c) further trials dealing with limitation, breach, causation, loss and damage and
various other issues, for which purpose at least two more trials will be needed,
with trials currently listed for November 2019 and March 2020.
4. The Common Issues are defined in para 1 of the Order of 27 October 2017, as “issues
relating to the legal relationship between the parties”.2 At pre-trial hearings on 2 and
22 February 2018, Fraser J accurately and concisely described the Common Issues as
dealing with “the contractual relations”,3 and as “purely points of construction”.4
There are 23 Common Issues, which are conveniently listed in para 45 of Judgment
No. 3.5
1
{B7/29}
2
{B9.3/2/1}
3
P.24H: {B9.3/2/61}
4
P.9D: {B9.3/2/85}
5
{B7/29/15}
2
5. Evidence was ordered by reference to the Common Issues: see para 10 of the Order of
27 October 2017.6
The reason I asked that question, Mr. Cavender, and I want to be completely
clear with you because it might help, is it seemed to me that some of these
could not possibly be said to go to the Common Issues trial, which is why I
wanted Mr. Green to tell me if he was seeking in this schedule for Common
Issues or for some other purpose. That demarcation seems to me sometimes to
be blurred.7
(b) Request E (minutes of meetings between Post Office and Fujitsu at which
known or suspected bugs, errors or defects were considered or discussed).9
6
{B9.3/2/5}
7
P.17A: {B9.3/2/93}
8
P.26B: {B9.3/2/102}
9
P.28A: {B9.3/2/104}
10
P.47E to p.48G: {B9.3/2/123-124}
3
8. In advance of the Common Issues trial, it became apparent to Post Office that,
notwithstanding the case management decision to have separate trials, the Claimants
intended to adduce and rely on facts and matters which were not relevant to the
Common Issues trial, but which would or might become relevant in one or other of
the later trials. This included matters which were not common knowledge and/or
which were post-contractual.
9. Post Office expressed its concerns on this issue at pre-trial interlocutory hearings on
19 October 2017, 2 and 22 February, and 5 June 2018. Annexed hereto, as Schedule
1, are the key extracts from the transcripts of those hearings. In short, Post Office
pointed out that the case to be put forward by the Claimants would trespass into the
territory of the later trials. As appears from the transcripts, Fraser J took the point, and
made it clear that the forthcoming trial should be concerned only with the Common
Issues. At the 5 June hearing, Fraser J anticipated that Post Office might apply to
strike out the irrelevant passages from the Claimants’ witness statements, or
alternatively would refrain from cross-examining on the irrelevant issues raised in
those witness statements.
10. In the event, Post Office applied in September 2018 to strike out numerous passages
from the Claimants’ witness statements on the grounds of irrelevance. That
application was heard in October, but was dismissed by Fraser J. The dismissal was
accompanied by astringent criticism of Post Office for having made the application,
notwithstanding the points which had been made by Fraser J at the 5 June hearing.
Nevertheless, Fraser J reiterated the importance of not making findings on Horizon or
breach issues at the Common Issues trial, and said that there was “no such risk”.11
11. In Post Office’s written opening for the trial, in oral opening argument, in written
closings and in oral closing argument, Counsel for Post Office repeatedly expressed
the concern that the Court should be exclusively concerned with the Common Issues,
and should not be beguiled into making findings or commenting upon matters which
were irrelevant to the Common Issues trial, but which were relevant, or potentially
relevant, to one or other of the future trials. For ease of reference, the key extracts
from those submissions are annexed as Schedule 2.
11
Paragraph 52: {B7/27/19}.
4
12. In the course of the trial, the approach adopted by Counsel for the Claimants was to
cross-examine Post Office’s witnesses by reference to the irrelevant materials. The
possibility that the Claimants would approach the trial in this way had been
anticipated by Post Office, which was a key reason why the application to strike out
was made in the first place. In his judgment of 17 October 2018, rejecting Post
Office’s strike out application, Fraser J said, at paragraph 53:
13. Mindful of these observations of Fraser J, and respecting the fact that the strike out
application had been dismissed, Counsel for Post Office refrained from intervening in
cross-examinations, but the fact is that throughout the trial the clear lines of
demarcation between the subject matter of the different trials were ignored by the
Claimants.
14. Post Office maintained its objection to the admissibility and relevance of this
material, and conducted limited cross-examination on these irrelevant matters to try to
prevent the Judge from getting a misleading impression. However, Post Office
12
{B7/27/29}
5
maintained its objections throughout, and went out of its way not to seek findings
on any such material.
15. Post Office’s core concern was accurately summarised by Fraser J in paras 51 and 52
of his strike out judgment:
51 The fifth point relied upon by the defendant is that the court should
not make findings on the matters included in the evidence, in particular
(but not limited to) matters of breach alleged against the defendant by
individual claimants.
6
making findings almost by accident, which is what the defendant came
perilously close to submitting.13
The Judgment
16. The final form of the Judgment in the Common Issues trial was handed down on 15
March 2019. In the respects explained below, the Judgment confirmed Post Office’s
worst fears as to what would happen in the event that inadmissible and irrelevant
evidence was allowed to be adduced and argued about in the course of the trial.
17. Instead of focusing exclusively on the Common Issues, Fraser J went seriously wrong
in two key respects. First, he made findings or observations on a number of matters
which will or might fall for decision in the Horizon or breach trials, and did so
without the benefit of proper disclosure and witness evidence from both sides.
Secondly, he made a number of other findings or observations, which were both
irrelevant to the Common Issues, and had no apparent purpose other than to
undermine the credibility and reputation of Post Office.
18. By reference to the pre-trial case management arrangements, the Common Issues
judgment should have been confined to the matters listed at (a) to (d) below:
(b) Mixed issues of construction and common law, as to whether and, if so, to what
extent agency principles apply to SPMs and/or Post Office (Issues 10 to 13).
(c) Issues as to the status of various terms, i.e. whether they are onerous and unusual
and/ or invalid under the Unfair Contract Terms Act (Issues 5 and 7).
(d) If and insofar as any terms are found to be onerous and unusual, what steps Post
Office needed to take to bring them to Subpostmasters’ attention (Issue 6).
19. Instead, in the paragraphs of the Judgment identified below, the Court made findings
or observations as to:
13
{B7/27/19}
7
(b) Post Office’s alleged knowledge of problems with Horizon. See, in particular,
paras 541, 543, 1115.
(c) The quality and operation of the Helpline. See, in particular, paras 248-249, 303,
328, 357, 556, 558.
(d) The quality of Post Office investigations into shortfalls. See, in particular, paras
115, 165, 208, 217(2), 223, 557.
(e) The ways in which Post Office allegedly harassed Subpostmasters. See, in
particular, paras 222, 327, 462, 569, 723(1), 723(4).
(f) How Post Office behaved when suspending or terminating Subpostmasters. See,
in particular, paras 20, 263-264, 402-403, 479-480, 514-517, 519, 723(2).
(g) The adequacy of training. See, in particular, paras 104-105, 142, 193, 246-247,
297, 346, 352, 437, 569, 955.
20. In addition to the specific passages referred to above, the Judgment contains many
examples of criticism directed at Post Office and its witnesses. None of these
criticisms were relevant to the fair disposal of the Common Issues and some appeared
to be premised on the assumption that Horizon was deeply flawed.14 Specifically, in
the paragraphs of the Judgment identified below, the Court made findings or
observations as to:
(a) Whether Post Office mistreated SPMs. See, in particular, paras 117, 523, 724,
1059, 1111.
(b) Criticisms of Post Office’s behaviour in this litigation. See, in particular, paras
21, 28, 30, 34, 123, 295, 393-394, 476, 483, 532, 560, 561.
(c) Attacks on Post Office’s witnesses, for misleading the Court and/or not dealing
with irrelevant material. See, in particular, paras 375, 400, 425, 544.
(d) Attacks on the NFSP and Post Office’s relationship with it. See, in particular,
paras 368-370, 576-577, 589.
21. At the hearing of this application, reference will be made to the paragraphs of the
Judgment set out above.
14
See, for example, para 545: {B7/29/172}.
8
Legal test for apparent bias
22. The legal test for apparent bias is well-established. It is whether “the fair-minded and
informed observer, having considered the facts, would conclude that there was a real
possibility that the tribunal was biased” (Porter v Magill, per Lord Hope).15
23. Bias includes giving the impression of having pre-judged any issue. In Otkritie
International Investment Management Ltd v Urumov Longmore LJ said that “The
concept of bias includes any personal interest in the case or friendship with the
participants, but extends further to any real possibility that a judge would approach a
case with a closed mind or, indeed, with anything other than an objective view; a real
possibility in other words that he might in some way have “pre-judged” the case.”16
24. In the recent Privy Council decision of Stubbs v The Queen, Lord Lloyd-Jones
considered the implications of a judge’s prior involvement in a case. He said that,
whilst prior involvement will not necessarily give rise to apparent bias, it will do so
where it “is such as might suggest to a fair-minded and informed observer that the
judge's mind is closed in some respect relevant to the decision which must now be
made.”17 He stressed that it “is not acceptable for a judge to form, or to give the
impression of having formed, a concluded view on an issue prior to hearing full
argument by all parties on the point”.18
25. The fair-minded and informed observer is assumed to assess bias as a matter of
substance, not form. In Amjad v Steadman-Byrne a judge called in counsel before
he had heard all of the evidence, and told them that he believed the claimants’
evidence. He also made other comments indicating his current views. Following his
judgment in favour of the claimants, the defendant appealed on the basis of bias. The
respondents said, as per a note taken of the conversation by their counsel, that the
judge had described his comments as a mere “indication of his thoughts”. They relied
on this as countering any indication of pre-judgment. Sedley LJ dismissed that
argument, saying:
15
[2002] 2 AC 357, at paragraph 103: Authorities/8 {B9.5/8}.
16
[2014] EWCA Civ 1315, at paragraph 1: Authorities/26 {B9.5/25}. On the facts of that case, there was no
indication of pre-judgment: see paragraph 33.
17
[2018] 3 WLR 1638, at paragraph 16: Authorities/30 {B9.5/29}.
18
At paragraph 17: Authorities/30 {B9.5/29}.
9
We are entirely content to accept that whether the district judge said it or not,
it is what he was seeking to do. The question remains whether the thoughts he
communicated were nevertheless such as to suggest to a reasonable observer
that his mind was all but closed against the defendant.19
27. A similar point arose in Lanes Group Plc v Galliford Try Infrastructure
Limited.20 Lanes argued that an adjudicator had pre-judged his conclusions, and
thereby shown bias, in a document he circulated titled “Preliminary Views and
Findings of Fact”. In that document, the adjudicator said that:
(a) He was circulating the document “to assist me in my examination of the issues
referred to me, in my ascertainment of the facts and the law and in order to allow
the Parties the opportunity to make further submissions on the issues”.
(b) The views and findings enclosed “are a step in making my Decision and I am not
bound by them”.
(c) “The statements “I find”, “I find and hold” and “Decision” and other similar
statements are not and not intended to be decisions of the adjudicator but
preliminary views and findings of fact preparatory to the decision.”
28. Judge Waksman QC (as he then was) at first instance, and Jackson LJ in the Court of
Appeal, both analysed the substance of the document. Neither of them said that the
words of qualification automatically meant that the document did not prejudge the
relevant issues. Judge Waksman QC said that, despite the words of qualification, the
“overriding impression” was “of a decision already made”. 21 Conversely, Jackson LJ
thought that “the fair minded observer…would characterise the Preliminary View as a
provisional view, disclosed for the assistance of the parties, not as a final
determination”.22 More generally, he said:
19
[2007] 1 WLR 2484, at paragraph 12: Authorities/14 {B9.5/13}.
20
First instance: [2011] EWHC 1679 (TCC): Authorities/20 {B9.5/19}. Appeal: [2012] 1 CLC 129:
Authorities/21 {B9.5/20}.
21
At paragraph 73: Authorities/20 {B9.5/19}.
22
Paragraph 57: Authorities/21 {B9.5/20}.
10
There is nothing objectionable in a judge setting out his or her provisional
view at an early stage of proceedings, so that the parties have an opportunity
to correct any errors in the judge's thinking or to concentrate on matters which
appear to be influencing the judge. Of course, it is unacceptable if the judge
reaches a final decision before he is in possession of all relevant evidence and
arguments which the parties wish to put before him. There is, however, a clear
distinction between (a) reaching a final decision prematurely and (b) reaching
a provisional view which is disclosed for the assistance of the parties.23
29. Consideration of whether a judge has reached premature concluded views is not
limited to looking at his verbal formulae. It is a question of substance, to be decided,
objectively, by reference to the view of the fair-minded observer.
30. Finally, and insofar as relevant, in Locabail (UK) Ltd v Bayfield Lord Bingham
stressed that “if in any case there is real ground for doubt, that doubt should be
resolved in favour of recusal”.24
Prejudging
32. As set out above, the Judge has made findings, or given clear indications of his
concluded views, on a large number of matters which are outside the scope of the
Common Issues trial. Many of those findings and indications relate to matters which
fall to be decided at the Horizon Issues trial, or at future breach trials. The Judge has
given the appearance of prejudging those matters.
33. We have set out above the broad headings, and the specific paragraphs, to which Post
Office will refer in detail at the hearing of this application. Post Office’s case will be
apparent from looking at those paragraphs.
34. Subpostmasters’ experiences of Horizon and its functionality fall squarely within
the Horizon Issues. Those experiences cannot be relevant to construing the contractual
23
Paragraph 56: Authorities/21 {B9.5/20}.
24
[2000] QB 451, at paragraph 25: Authorities/7 {B9.5/7}.
11
relationship. As Fraser J explained (Hearing of 2 February 2018, p.16E to p.18A25),
even a “smoking gun memo”, proving all the allegations about Horizon to be true,
would “not…affect…the proper construction of the relationship in contract between
sub-postmasters and Post Office.”
35. Fraser J found that there was “no way available for [Mrs Stockdale] to get to the
bottom” of her shortfalls (para 302), and that “the Horizon system did not allow” Mr
Bates to investigate shortfalls (para 824). More broadly, he found that the “whole
issue with the information available to an SPM on Horizon is that they could not
identify discrepancies or shortfalls, or understand the basis on which TCs with which
they disagreed were issued” (para 819), and that Horizon “limited the Claimants’
ability to access, identify, obtain and reconcile transaction records” (para 569, point
50) and “limited the Claimants’ ability to investigate apparent shortfalls, particularly
as to the underlying cause thereof” (para 569, point 51). It cannot be expected that
Fraser J will revisit these findings in the light of full evidence and disclosure. Nor did
he give any indication that he expected to do so.
36. Whether Post Office employees knew about alleged problems with Horizon might
be relevant to the Claimants’ allegations of deliberate concealment (key to the
limitation questions scheduled to be tried in November) or deceit. But Post Office’s
internal knowledge would not be common knowledge. It therefore is not relevant
matrix. As Fraser J pointed out at the hearing on 22 February 2018, at p.9E: “the only
factual matrix which is relevant to construe the meaning of those contracts in law is
common knowledge”.26 The Judgment prematurely reached conclusions on this
breach issue.
25
{B9.3/2/53-55}
26
{B9.3/2/85}
27
{B9.3/2/123-124}
12
how it functioned within the overall disputes and accounting process. As to the
former, Fraser J found, for example, that Mr Abdulla “could rarely get through to the
Helpline”, and “could not resolve” shortfalls through the Helpline (paras 248-249).
38. As to the latter, he said that, although it was common ground that once a shortfall was
disputed with the Helpline it should not be pursued until the dispute was resolved,
“the Helpline did not operate for the Lead Claimants in the manner that the Post
Office contended for” (para 558). It is suggested (para 55) that findings on the
Helpline were necessary to resolve the Common Issue as to the status of the Branch
Trading Statement. That cannot be right. The status of the Branch Trading Statement
is a mixed question of contractual interpretation and common law. It must be
answered as at the time that the relevant contract was entered into.
39. The status of any individual Branch Trading Statement would depend on the facts. If a
dispute has been effectively registered via the Helpline, Post Office would accept that
it could not rely on the Branch Trading Statement to the extent of that dispute. If a
Subpostmaster tried but was unable to register a dispute via the Helpline, that might
prevent Post Office from relying on the Branch Trading Statement to the extent of the
dispute, if it could be shown that through fault on the part of Post Office the Helpline
was not working.
40. That factual investigation is entirely distinct from the matters which were to be
investigated in the Common Issues trial. The contractual and common law position as
to the Branch Trading Statement and the Helpline falls to be analysed as at the time of
contracting. It is not permissible to look at evidence of alleged breaches of contract,
for example as to the effectiveness of the Helpline, to ‘improve’ or clarify the factual
matrix.
41. It is harder still to see how the quality of Post Office’s investigations into shortfalls
could be relevant matrix. These, by definition, can only have occurred after Claimants
had entered into contracts, begun operating their branches, and encountered shortfalls.
Nonetheless, the Judgment condemns an investigation into Mrs Stubbs’ shortfall as
“not, in my judgment, an investigation under any normal understanding of meaning of
that word in society generally” (para 165). It also attacks Post Office for not giving
Subpostmasters information which allegedly could have helped them to investigate
shortfalls.
13
42. There are also findings and observations on Post Office’s pursuit of debts and
threats of legal action. For example, the Judgment found as part of the matrix, at
para 569, that Post Office sought to recover shortfalls whether or not they had been
disputed. At para 222, the Judge said that Post Office misinformed Subpostmasters as
to the scope of their liability, and threatened legal action against them, in order “to
lead the recipients to believe that they had absolutely no option but to pay the sums
demanded” (para 222). This was described as “oppressive behaviour” for which there
was “no excuse”. None of this is relevant matrix. It is highly relevant to the
Claimants’ breach allegations, particularly as to the tort of harassment.
43. The extent to which Post Office’s contractual rights to suspend and terminate
Subpostmasters are restricted were Common Issues. How Post Office behaved when
suspending and terminating Subpostmasters was not a Common Issue, although it
will be important in future breach trials. Nonetheless, the Judgment criticises the
criteria used in the termination process (for example, at para 403) and reaches
conclusions on whether the bases for particular terminations were sound (see para
723(2)).
One feature which seemed to me to be wholly absent from the training courses
run by the Post Office for the Lead Claimants was any sort of assessment or
test of competence at the end of the training… This situation is in no-one's
interests, and in my judgment I would go further and say it is contrary to
business logic… I do not consider that it would be difficult for any training to
include at the end of it some sort of assessment or test28
28
{B7/29/270}
14
45. The Court will have to assess, at future breach trials, whether the training received
was adequate. The Judge appears to have already reached very firm conclusions.
Invective
46. In other places, the Judge has attacked Post Office for reasons unconnected to the
Common Issues. He says that Post Office is “answerable only to itself” (para 523) and
wields its power “with a degree of impunity” (para 724).
47. In several places, he speculates as to terrible things Post Office might have done. It
might have changed the terms of the NTC to make Subpostmasters liable for
Horizon’s mistakes (para 1059). It might have made submissions on the importance of
objectivity because “it fears objective scrutiny of its behaviour” (para 28). It might
have destroyed, or failed to preserve, evidence (para 295). It might have suppressed
material relevant to the litigation (para 483). It might have induced the NFSP to
change its website in the course of the trial (para 589). There is no basis for any of
these criticisms/speculations. More importantly, they have no place in what should
have been a decision focused on contractual construction.
48. Similarly, the Judge criticises Post Office’s witnesses on matters unconnected to the
Common Issues. He attacks Mr Breeden for his subjective view of contractual
construction (para 400)29 and Ms Van den Bogerd for not giving evidence on Horizon
issues (para 425). He attacks Mrs Dickinson for not professing greater knowledge of
the Enron scandal (para 458). None of this had any bearing on the Common Issues.
49. Taken together, the Judge’s criticisms would cement the fair-minded observer’s view
that Post Office would not, or at least might not, get an impartial hearing in the
ongoing and future trials.
Conclusion
29
This is notwithstanding that Mr Breeden’s view coincided with the Claimants’ pleaded case on the
construction of section 12, 12 of the SPMC and para. 4.1 of the NTC.
15
fair-minded observer, there is a real possibility of bias affecting the ongoing and
future trials.
LORD GRABINER QC
DAVID CAVENDER QC
GIDEON COHEN
STEPHANIE WOOD
1 April 2019
16
SCHEDULE 1: KEY EXTRACTS FROM TRANSCRIPTS
Page 12A-F:30
MR. GREEN: Well, my Lord, the only thing is that in fact the relevance of
the evidence here is to give the court the context in which to construe and
determine the contractual questions and to provide evidence so that the
court is not doing the exercise in a vacuum. I think both parties recognise that
may be helpful and important. Now, we propose that there be an agreed
statement of facts which is the second point I was coming to. The first point is a
smaller number in the pool, the second point is an agreed statement of facts and
the third point is that our intention in relation to witness evidence is only to
address in witness evidence matters which have not been capable of agreement in
the agreed statement of facts. So what we have proposed is aimed at confining
the scope of evidence given by confining the pool and the number of lead
claimants, confining the scope of disagreement by having the agreed statement
of facts and witness evidence only being admissible on matters which are not
reflected in the agreed statement of facts and which are directly relevant to the
determination of the issues. Now, my Lord, just because the court hears
evidence from Mrs. Miggins that “x” happens does not mean that the court needs
to determine finally whether “x” did happen but the court is perfectly able to
determine these issues on a footing informed by such findings as the court finds
it necessary to make in relation to any of those disputed facts which we think
will be a secondary category of evidence.
30
{B8.2/3/4}
17
Page 14D-F:31
MR. JUSTICE FRASER: I am glad you have thought about it, because I can tell
you that vacating March 2019, the chances of that happening are extraordinarily
slim, verging on zero. We will come do that when we come to future case
management. At the moment you have your existential dispute on the scope of
disclosure arising out of scope matrix of facts necessary for the revision of the
common issues this year, which are contractual. We will deal with that first.
MR. JUSTICE FRASER: Can I summarise what I understand the position to be?
MR. JUSTICE FRASER: Mr. de Garr Robinson and, indeed, Mr. Cavender
are adopting a conventional, he was and Mr. Cavender is adopting a
31
{B8.2/3/5}
32
{B9.3/2/42-43}
18
conventional approach as set out in the authorities, which Mr. Cavender has
helpfully reminded me of, such as Arnold v Britton, et cetera, which is the
extent to which factual matters can or should be taken into account or are
even admissible on the construction of the contractual provisions.
MR. JUSTICE FRASER: When this discussion/dispute arose at the last CMC,
you addressed me shortly on why there was the need for factual evidence at all on
the common issues, which you effectively said it is to put the contractual
relations in context. I am giving you a shorthand, but that is more or less
what it is.
At that point Post Office were saying that they were very worried, because until
they saw your witness statements they did not know the scope to which you were
perhaps going outside the envelope with that admissibility to include an
enormous amount of factual matters which simply will not be relevant or will not
need to or, indeed, ought to be considered when I deal with common issues in
November.
MR. JUSTICE FRASER: But as far as resolving as a matter of law what the
construction of the contract is, let us say there is a smoking gun memo.
33
{B9.3/2/53-55}
19
MR. JUSTICE FRASER: How will that help you on the construction of the
contract as a matter of law?
MR. GREEN: Can I finesse your Lordship's example and then answer?
MR. GREEN: The memo says that there is a significant number of errors thrown
up by Horizon, although it is a tiny number of the overall transactions as a
whole -- which is our case too -- postmasters have no idea about this and are
basically unable to get the documentation. If we were to introduce the sort of
reporting function on Horizon that Mr. Bates, claimant number 1, asked for in
correspondence repeatedly in very courteous letters that Master Fontaine saw, if
we were to do that they would be able to find out its our fault. The idea that your
Lordship is going to approach the question of justice on the burden of proof ----
MR. GREEN: ---- in the same way without of without that ----
MR. JUSTICE FRASER: Mr. Green, all of this is going to be done with justice
very much at the front of everyone's mind. But looking at the common issues,
your point about the memo, which you have explained in a bit more detail, is
not going to affect, is it, the proper construction of the relationship in
contract between sub-postmasters and Post Office. If it is, if you are going to
tell me it is as a matter of contract to do that, could you explain to me how?
MR. GREEN: The answer is yes and yes, it is, and I will explain. Leave aside
arguments for a moment.
MR. JUSTICE FRASER: I am not talking about each party's cases. I am talking
about the exercise of construing the contractual relationship. Because your
case is that it is a contract that falls into that particular exceptional category.
MR. GREEN: Yes. If your Lordship is against us, for example, on the (unclear),
for example, it is not a relational contract, and we are going to get some clarity
from the defendants on this shortly.
20
MR. JUSTICE FRASER: That is the main point, in a way the common issues
are refinements of what really is the main general point which is what was
the nature of the relationship.
MR. GREEN: Precisely. Your Lordship is absolutely right about that and
I do not shrink from saying that. Indeed, it is impossible for the claimant to
win on all the common issues because they are effectively alternatives. If there
are implied terms which render something that might otherwise have been
expressly unfair, fair, for the purposes of UPTA(?), then we automatically lose on
UPTA. If they are there are no such terms, then we may have a better chance on
UPTA. Your Lordship is absolutely right, the fundamental question is what is the
relationship between the parties. But the idea that the factual matrix before the
court to determine that important question in this case should be deprived of the
eloquence of a measure of generic reality as to what was going on, in addition to
the fact of six cases, in our submission is unrealistic.
Page 34B-E:34
MR. GREEN: What I can absolutely see is an achievable and effective trial of
the Horizon issues, either perhaps in the early autumn of next year or the late
summer of next year.
MR. JUSTICE FRASER: Why not March? There are in this case three main
rafts of dispute, there is the contractual relations, there is the operation of
Horizon and there is the impact of that on the individuals.
MR. JUSTICE FRASER: The first of those three main areas is being tackled in
the autumn of this year. Horizon is going to have to be tackled, because
regardless of the outcome in either party's favour on contractual relations
there is a fundamental difference between them on that point.
34
{B9.3/2/71}
21
Hearing of 22 February 2018
MR. JUSTICE FRASER: This is, with respect, rather off the point for this
reason. I thought I made this crystal clear last time but I appear not to have
done so I am going to repeat myself, so far as resolving the Common Issues
which are, and I have reminded myself what they are, purely points of
construction.
MR. JUSTICE FRASER: On the authorities the only factual matrix which is
relevant to construe the meaning of those contracts in law is common
knowledge. That is without doubt orthodox and the correct way of doing it.
MR. JUSTICE FRASER: That does not mean, and I think the expression I used
in the transcript two weeks go, but the expression I used perhaps over
dramatically was a smoking gun, that does not mean that smoking gun-type
documents are not disclosable because I have the ability to order documents of
that nature, whether they are going to be relevant to the point of
construction or not. I also thought I made it clear that they had to be
narrowly focused requests and the existing requests were far too wide.
35
{B9.3/2/85-86}
22
MR. JUSTICE FRASER: I have your point about the orthodox factual
matrix. Mr. Cavender, to be fair to him, explained this very clearly on the
last occasion. We did not go into the authorities but I thought I made it
clear that his approach on construction was indeed correct.
MR. JUSTICE FRASER: We are not arguing the point now for decision.
MR. GREEN: No, we are not argue the point now for decision; that is quite
right. I just wanted to highlight specifically the question, I mean, this is the
precise example that my learned friend relies on.
MR. JUSTICE FRASER: Mr. Green, it does not matter for this reason. You
might have a good case for an order for disclosure of certain documents anyway,
whether they go to Common Issues or not.
MR. JUSTICE FRASER: But that does not at this point and it might be when
we go through the tendentious task of looking at your requests, that some of
them are disclosable anyway, whether they are going to Common Issues or not.
Page 26B-C:36
23
you Mr. Green because you do not know what they are called, but the term
management meetings or the term within a very large organisation such as Post
Office management is simply too vague.
Page 46C-G:37
MR. GREEN: Exactly that. There are two specific points. I think we are
perfectly content to limit it as we did with m to whatever we come up with for
instructions but does not use the word, on those two points. We are obviously
not including emails about it.
MR. JUSTICE FRASER: You do not need to. This relates to paragraph 61 of
the defence which does not arise in the Common Issues at all so I am not
going to give disclosure of category.
24
MR. GREEN: I was going to do something different, my Lord.
MR. JUSTICE FRASER: Maybe you will in a minute but first of all show me
where paragraph 61 is in the Common Issues. Paragraph 61 of the defence, is it
there? It might be that I have missed it.
MR. GREEN: My Lord, the concern is that there are two parts to that one that
we were asking for. The part that is defined by reference to paragraph 61 of the
generic defence is only the bit in green. The other bit is the mirror of the one
you have ordered on m.
MR. GREEN: It is quite difficult to see how your Lordship can construe the
things that the defendant has raised on the pleadings without the information
about what they are told to tell them.
MR. JUSTICE FRASER: Not that I need to explain in any great detail because
we have spent two hours on disclosure, the instructions that I have given to the
Postmaster in terms of dealing with and disputing a shortfall within category m
because that comes from the training. What in fact then happened, if any of
the claimants phone the help line, goes to breach, does it not?
MR. GREEN: My Lord, we are not asking for what happened, we are just
asking ----
25
MR. JUSTICE FRASER: Either what happened or what should have
happened is not relevant to construing the Common Issues.
MR. GREEN: But it may not be so I am going to make the submission and you
can tell me if it is me. If we order category n, category n is network wide
instructions to Post Office trainers and how to train a Postmaster to deal with a
shortfall. So that is what they are told, generally this is what you should do.
Then the corollary of that ----
MR. JUSTICE FRASER: Why do you think that is relevant to Common Issues?
MR. JUSTICE FRASER: (a) because I have ordered it and (b) because it is
common knowledge because the Post Office know what the trainers are
supposed to do and because, in theory, that is what the Subpostmasters or branch
post officers are told. So, it is common knowledge. It is therefore directly
relevant to construing the contract.
MR. GREEN: My Lord, the existence for an apparent shortfall is not anything to
did with breach necessarily. My learned friend seeks to conflate before your
Lordship two different points with respect and that was his submission to your
Lordship which led to this. If I have it wrong I apologise.
MR. JUSTICE FRASER: Right, Mr. Green, you can argue for as long as you
like. This arises from paragraph 61 of the defence which does not arise at
all on the Common Issues, I have now said that three times, please do not
waste any more time about it. I am not ordering it.
26
Hearing of 5 June 2018
MR. JUSTICE FRASER: No, let me deal with it on that basis. Whatever the
factual evidence upon which you seek to rely it has to be relevant to the
Common Issues.
MR. JUSTICE FRASER: Perhaps not at some length but just relatively
succinctly.
MR. GREEN: Someone says, "I was provided with this training which I
found inadequate and it did not help me do X", let us assume that is going to
be the evidence. Now, my learned friend says that is evidence that goes to
breach, but that is wrong analytically.
39
{B9.3/2/271-273}
27
MR. JUSTICE FRASER: Show me which Common Issues it would go to.
MR. GREEN: The first point is that on Common Issues number 1, relational
contract the court has to decide that by looking at the nature of the contract.
MR. JUSTICE FRASER: I do not think one looks at the nature of the
contract as it worked in practice. One looks at the nature of the relationship
between the parties to the contract to see if the necessary ingredients, or if
there are any new ones which have not yet been subject to authority.
Whatever the necessary ingredients are for a relational contract are, print
or not.
MR. GREEN: Correct. Then we reformulate it to say, was the contract one
which in practice required the fair dealing and good faith requirement et cetera in
the ----
MR. GREEN: No, but, my Lord, my learned friend has captured the language,
we say, quite wrongly. There are two points, contractual orthodoxy from which
we do not depart at all. The first point is that when you are looking at the
construction of a contract you look only at the evidence as it was when the
parties contracted. We are not going to invite your Lordship to look at any
evidence after the parties contracted to construe the agreement that they
entered into on that date.
MR. GREEN: Of course. I am trying to clear the ground where the dispute is.
MR. JUSTICE FRASER: By definition the breach must happen after the
contract ----
28
MR. GREEN: Of course, we are not talking about ----
MR. GREEN: Breach assumes one has identified what the legal obligation is
first which we have not even done, that is what the Common Issues Trial is
about. My learned friend's characterisation is speculative.
MR. JUSTICE FRASER: I will tell what you I am going to do about this
because I am have grave difficulty in following it, but it is also undoubtedly the
case that there are bear traps left, right and centre in my attempting to identify in
advance ----
MR. JUSTICE FRASER: ---- when you can and cannot do in your evidence. So
this is what I am going to do. I am going to express myself very clearly. If you
serve evidence of fact which includes passages which are plainly not relevant
and, hence, not admissible, Mr. Cavender is going to have a choice. He can
either simply say, "I am not going to be cross-examining at all" or he is going to
issue an application to have it struck out. If he does issue an application to have
it struck out and that application is effective, it will involve the court going
through it and simply striking out large amounts.
The court will make time to do that but cringing costs consequences will follow.
Page 60A-E:40
MR. JUSTICE FRASER: But it does not open the door and it might be that this
is all a concern without any real substance. It does not open the door to
wide-ranging evidence of fact which appears to be Post Office's concern, that
cannot possibly form part of the factual matrix.
40
{B9.3/2/274}
29
MR. JUSTICE FRASER: I know, you always do say you take it on board and
you all say that you are following contractual orthodoxy. It might be that you
are.
MR. JUSTICE FRASER: At the moment, without the documents in front of you
to be able to look at it with any sort of concrete analysis, it is difficult for me to
do any more. To continue the quasi military analogies from earlier this
afternoon, a very powerful shot has now been fired across your bows on two
occasions and I do not mean by Mr. Cavender or Mr. De Garr Robinson; I
mean by me.
30
SCHEDULE 2: KEY EXTRACTS FROM POST OFFICE’S SUBMISSIONS
29. This trial is the first stage in the resolution of the issues in the group
litigation. It necessarily precedes the determination of issues as to the
functions and reliability of the Horizon system and the determination of
matters going to breach of contract and liability in individual cases.
30. The Court confirmed in Judgment No. 2 that it would not be drawn into
“making findings on the Horizon Issues, or…making findings on breach” at
the present trial (para. 52). Post Office welcomes that ruling. Post Office
anticipates that Cs’ case on the supposed relevance of its breach allegations to
the Common Issues will become more fully articulated at trial.
31. In any event, it will be important for the parties not to stray into issues
that fall to be determined at the Horizon trial and/or issues as to breach.
The Court will recall that Post Office has not adduced any evidence at
this trial to make good its case on Horizon; nor has it sought to address in
evidence the various breach allegations that appear in Cs’ witness
evidence. Post Office has not prepared for a trial on Horizon or a trial on
breach. The function of this trial is not to reach any findings on those
issues, or on facts that go to those issues.
41
{B9.3/2/296}
31
Post Office’s Oral Opening Submissions42
Transcript, Day 1
Page 165
20 category of --
42
{B9.3/2/445}
32
21 MR JUSTICE FRASER: I know that and I haven’t yet bottomed
25 couldn’t it?
Page 166
33
Post Office’s Written Closing Submissions43
31. This trial is the first stage in the resolution of the issues in the group
litigation. It necessarily precedes the determination of issues as to the
functions and reliability of the Horizon system and the determination of
matters going to breach of contract and liability in individual cases.
32. The Court confirmed in Judgment No. 2 that it would not be drawn into
“making findings on the Horizon Issues, or…making findings on breach” at
the present trial (para. 52). {B7/27/19}. Post Office respectfully submits that
the Court should also resist any invitation to comment on the substance of
those issues and disputed facts going to them, even if those comments fall
short of findings.
33. It remains, even after hearing the evidence and cross-examination, wholly
unclear on what basis Cs will seek to persuade the Court that it can have some
regard to (or should make any findings or comment upon) the evidence of
post-contractual conduct and documents. Nothing that Cs argued in their
opening submissions sheds any light at all on how Ms Stockdale’s experience
of shortfalls in 2016 is said to be something to which the Court can have
regard in interpreting the relationship that she entered into with Post Office in
2014, for example. Nor is there anything to suggest that her experience is
relevant to any other C’s relationship with Post Office at any relevant time.
The same goes for the other lead Cs.
36. Now that the promised case as to relevance has failed to materialise, it is
clear that Cs’ intention must always have been to engineer a situation in which
43
{B9.3/2/463-465}
34
they can fight out the merits of the lead claims on an unlevel playing field. Cs
must anticipate, for example, that the absence of full evidence and disclosure
puts them in a stronger position to obfuscate in relation to their own post-
contractual conduct (although, ultimately, one of the lead Cs felt that she had
to invoke the privilege against self-incrimination as regards her accounting to
Post Office). All this must be in the vain hope that the Court might be
influenced by inadmissible evidence in determining the Common Issues.
37. It remains acutely important not to stray into issues that fall to be
determined at the Horizon Trial and/or future trials on breach and
liability. The Court will recall that Post Office has not adduced any
evidence at this trial to make good its case on Horizon; nor has it sought
to address in evidence the various breach allegations that appear in Cs’
witness evidence. Post Office has not prepared for a trial on Horizon or a
trial on breach. It has not, for example, led expert evidence on Horizon,
and it has not provided anything like the accounting evidence that it
would lead at a liability trial. The function of this trial is not to reach any
findings on those issues, or on facts that go to those issues.
Transcript, Day 14
Page 2744
44
{B9.3/2/680}
35
24 fact? That is the mistake made in Bou Simon by the
Page 28
10 very careful what question you ask and what evidence you
16 When you know a lot more detail - - and at that stage you
18 and things that have gone wrong and try and put them
36
21 less. You have a very high level view of what you
Page 3245
Page 33
10 obviously wrong.
45
{B9.3/2/681-682}
37
12 into thinking there has been anything like proper
Page 34
38
9 MR JUSTICE FRASER: The irrelevance point I understand, but
11 training - -
13 training - -
19 MR JUSTICE FRASER: There might not have been. But you did
Page 35
39
6 MR JUSTICE FRASER: By ”date of inception ”, do you mean ...
Page 4646
16 are, and with Horizon and how good or bad that is. But
46
{B9.3/2/685}
40
22 will be surprising if they were not. So it is not
Page 47
4 on.
Page 5247
2 MR CAVENDER: The
6 MR CAVENDER: Indeed.
47
{B9.3/2/686}
41
13 a contract or not, you could - - if you took that too
16 to that.
Page 6348
48
{B9.3/2/689}
42
Page 64
10 given there are two other trials that have been loaded
14 be determinations.
43